[Rushtalk] Lawsuit over health care tax could kill ‘Obamacare’

Paf Dvorak notmyname at thatswaytoomuch.info
Fri Apr 5 09:25:57 MDT 2013

Obamacare" looks increasingly inevitable, but one lawsuit making its 
way through the court system could pull the plug on the sweeping 
federal health care law.

A challenge filed by the Pacific Legal Foundation contends that the 
Affordable Care Act is unconstitutional because the bill originated 
in the Senate, not the House. Under the Origination Clause of the 
Constitution, all bills raising revenue must begin in the House.

The Supreme Court upheld most provisions of the act in June, but 
Chief Justice John G. Roberts Jr. took pains in the majority opinion 
to define Obamacare as a federal tax, not a mandate. That was when 
the Sacramento, Calif.-based foundation's attorneys had their "aha" moment.

"The court there quite explicitly says, 'This is not a law passed 
under the Commerce Clause; this is just a tax,'" foundation attorney 
Timothy Sandefur said at a Cato Institute forum on legal challenges 
to the health care act. "Well, then the Origination Clause ought to 
apply. The courts should not be out there carving in new exceptions 
to the Origination Clause."

The Justice Department filed a motion to dismiss the challenge in 
November, arguing that the high court has considered only eight 
Origination Clause cases in its history and "has never invalidated an 
act of Congress on that basis."

The U.S. District Court for the District of Columbia is expected to 
rule on the Justice Department's motion "any day now," said Pacific 
Legal Foundation attorney Paul J. Beard.

The challenge citing the Origination Clause isn't the only lawsuit 
against Obamacare, but it is the only one that has the potential to 
wipe out the entire act in one fell swoop. Other claims, notably the 
freedom-of-religion cases dealing with the birth control requirement, 
nibble at the fringes but would leave the law largely intact.

In their brief, attorneys for the Justice Department argue that the 
bill originated as House Resolution 3590, which was then called the 
Service Members Home Ownership Act. After passing the House, the bill 
was stripped in a process known as "gut and amend" and replaced 
entirely with the contents of what became the Patient Protection and 
Affordable Care Act.

SEE RELATED: Texas leaders stand firm against Obamacare

Using H.R. 3590 as a "shell bill" may be inelegant, but it's not 
unconstitutional, according to the government motion.

"This commonplace procedure satisfied the Origination Clause," said 
the brief. "It makes no difference that the Senate amendments to H.R. 
3590 were expansive. The Senate may amend a House bill in any way it 
deems advisable, even by amending it with a total substitute, without 
running afoul of the Origination Clause."

The brief cites a number of cases in which courts upheld shell bills, 
but foundation attorneys counter that those rulings involved the 
Senate substitution of one revenue-raising bill for another.

"Here, by contrast, it is undisputed that H.R. 3590 was not 
originally a bill for raising revenue," said the Pacific Legal 
Foundation lawsuit. "Unlike in the prior cases, the Senate's 
gut-and-amend procedure made H.R. 3590 for the first time into a bill 
for raising revenue. The precedents the government cites are 
therefore inapplicable."

The Justice Department also points out that the court has allowed 
revenue bills to originate in the Senate if the money raised was 
incidental to the bill's mission.

The Affordable Care Act's central purpose is to "improve the nation's 
health care system," and it fulfills that goal "through a series of 
interrelated provisions, many, if not most, of which have nothing to 
do with raising revenue," said the government brief.

Mr. Sandefur disagrees. "What kinds of taxes are not for raising 
revenue?" he asked.


Paf Dvorak

<http://thatswaytoomuch.info/>notmyname at thatswaytoomuch.info  
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