[Rushtalk] Lawsuit over health care tax could kill Obamacare
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
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.
<http://thatswaytoomuch.info/>notmyname at thatswaytoomuch.info
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