Why Obamacare Could be Heading to the Supreme Court (Again)

This past week, the United States Court of Appeals for the District of Columbia Circuit, over the vigorous dissent of four judges on that court, denied rehearing en banc (legalese for an entire court rather than just a panel of three judges) in the case of Sissel v. United States Department of Health and Human Services.

Sissel is a case against Obamacare led by the Pacific Legal Foundation, arguing that Obamacare is invalid because it violated the Origination Clause.

Now, the challengers have ninety days to file a writ of certiorari (an appeal) before the U.S. Supreme Court.

This important case deals with the Origination Clause of the Constitution— which reads:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The Founders included this clause primarily to balance out the unique powers the Senate wields, and to ensure that the power of drawing revenue from the people by taxing them would be initiated by the branch that was closest to them (remember, at that time the Senate was elected by state legislatures, not by popular vote) and whose members would have to stand for re-election every two years.

In the first major Obamacare decision, NFIB v. Sibelius, the Court upheld the law as a tax—something that surprised many people.

But if it’s a tax, shouldn’t the bill have originated in the House?

As it happens, Obamacare “originated” in the House in only a very formalistic sense.

H.R. 3590, the bill that became Obamacare, was originally titled “Service Members Home Ownership Tax Act of 2009” and had nothing to do with health care.

But to secure passage of Obamacare, the Senate decided to take this bill, which had passed the House, and gut it entirely, replacing the entire text of that bill with the Obamacare title and text and keeping only the bill number.

After it passed the Senate, the House then approved the new Senate-drafted bill through a reconciliation bill.

The House made no changes to the text, which, because of the Senate’s obscure procedural rules, meant that when the bill went back to the Senate, it was not subject to a filibuster.

This was significant because, in the interim, Sen. Ted Kennedy, D-Mass., had died and been replaced by Scott Brown, R-Mass., thereby depriving the Democrats of the 60 votes they would need to defeat an otherwise inevitable Republican filibuster.

And thus was Obamacare born.

Via: Daily Signal

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How 40 Congressmen Are Challenging Obamacare

The Supreme Court may have ruled once on the Patient Protection and Affordable Care Act, better known as Obamacare, but the debate about the law’s constitutionality is far from settled.

Forty members of the House of Representatives, led by Trent Franks (R–AZ), have filed an amicus brief in the latest case challenging the constitutionality of the Obama Administration’s crowning achievement (or failure, depending on your perspective). The lawsuit claims that the Obamacare legislation violates Article I, Section 7, Clause 1 of the Constitution, otherwise known as the Origination Clause.

In last year’s surprising and oft-criticized opinion in NFIB v. Sebelius, the Supreme Court upheld the act under Congress’s authority “To lay and collect Taxes” under the Spending Clause of the Constitution. Chief Justice John Roberts, writing for the majority, found that, despite the plain text of the statute, the individual mandate was actually a tax and not a penalty.

The Origination Clause provides: “All Bills for raising Revenue shall originate in the House of Representatives.” Our Founding Fathers understood that the power to tax, if abused, involved the power to destroy. They viewed the Origination Clause as a safeguard for liberty by insisting that the power to initiate new taxes should be left with the lawmakers who were most directly accountable to voters—members of the House, who are elected every two years in local districts.

Via: The Foundry

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ObamaCare's Original Sin

Democrats tell us that ObamaCare is "the law of the land," and that the Supreme Court declared it constitutional, and that we should get used to it -- it's here to stay. Actually, the Court found ObamaCare unconstitutional on two counts, but let it pass anyway.

The problem for defenders of ObamaCare is that its court challenges just keep coming. One place to check up on them is the website Health Care Lawsuits. In September, the American Enterprise Institute ran an article by Chris Conover headlined "Will the Courts Derail Obamacare?" The article covers several of the ongoing court challenges to ObamaCare, including the status of each case. (The article also ran at Forbes.)

On October 5, National Review ran a terrific article by former federal prosecutor Andrew McCarthy that addresses a specific legal challenge:

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause -- not only as I have expansively construed it, but even under Matt's narrow interpretation of the Clause. [...] The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

McCarthy refers to the individual mandate, which Justice Roberts "rewrote" as a tax. However, the Senate bill that became ObamaCare had several other taxes, such as the tax on medical devices, before Roberts ever got to the law.

Via: American Thinker

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