A federal appeals court heard arguments on Thursday that Obamacare is unconstitutional because it is a tax that originated in the Senate rather than the House and thus violates the Origination Clause of the U.S. Constitution.
The case, Sissel v. Health and Human Services, was argued before a three-judge panel of the D.C. Circuit Court of Appeals with two jurists recently appointed by President Barack Obama and the other by President Bill Clinton.
Appearing before the panel, Timothy Sandefur, co-counsel for the Pacific Legal Foundation that launched Sissel, said the House bill that became the Affordable Care Act in the Senate in 2009 was "not a bill for raising revenue" and "did not raise taxes."
The Senate subsequently gutted the House measure to substitute completely new language that became Obamacare, he said.
The U.S. Supreme Court in 2012 upheld Obamacare on the grounds that the individual mandate was a "tax." Sandefur said the legislation violated Article I Section 7 of the Constitution — namely, the Origination Clause, which requires all legislation that raises revenue to start in the House.
Failure to strike down the legislation on those grounds, he concluded, would mean "origination would turn into a shell game."
The three jurists at times seemed skeptical of and even hostile toward this argument.
To Sandefur's claim that the law was a tax, Judge Nina Pillard retorted that "at times, [Congress] hoped it would not raise any money."
Instead, she said, "their hope was compliance" with the law by the public purchasing health insurance.
As if to contradict Sandefur's view that the Senate's amending legislation must be "germane" to the original legislation it receives from the House, Judge Robert Wilkins said "we have repeatedly seen there is no constraint on Senate amendment power."
Obama's nominations of Wilkins and Pillard to the D.C. Circuit were tied last year to the filibuster question in the Senate. The debate culminated in the so-called "nuclear option" to bring nominees to the floor by a simple majority of the Senate and both were subsequently confirmed.
Arguing for the government, Justice Department lawyer Alisa Klein pointed to Elbridge Gerry, one of the Founding Fathers, who sought language in the Constitution mandating no Senate role at all in revenue legislation from the House. But, she quickly noted, the Constitutional Convention "did not sign on," and as a result a disappointed Gerry never signed the final document that was the U.S. Constitution.
Klein also repeatedly cited the Supreme Court's 1914 decision in Rainey v. U.S., in which the Senate's power to amend legislation from the House was upheld. Judge Pillard actually went a step further in asking Klein if "under Rainey, there was no constraint on the Senate's ability to amend."
Sandefur countered by pointing to a more recent Supreme Court ruling, U.S. v. Munoz-Flores of 1990, that upheld origination, where Justice Thurgood Marshall wrote: "A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the president than would be a law passed in violation of the First Amendment."
Republican Rep. Trent Franks of Arizona, chairman of the House Judiciary Subcommittee on the Constitution, attended the hearing and has filed a friend-of-the-court brief with 41 House colleagues supporting Sissel.
"I think our people did quite well," Franks told Newsmax after the court session.
Franks said that if the court ruled against the origination argument, "then the Senate can strike every word that comes from the House and the judges would have torn out the Origination Clause from the U.S. Constitution."
Paul D. Kamenar, co-counsel to Franks, candidly admitted to Newsmax that the ruling by the three-judge panel "will probably go against us."
Under those circumstances, he said, "Mr. Sissel will proceed to request an 'en banc' rehearing," in which the case will be heard by the full 11-member Appellate Court.
"Failing that, it will take the votes of only four justices to get us to the Supreme Court, where we feel we can convince Chief Justice [John] Roberts to do a do-over," a reference to Roberts' ruling in 2012 upholding the constitutionality of Obamacare as a "tax."
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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