House Could Sink Obamacare

Image: House Could Sink Obamacare Rep. Trent Franks of Arizona, and 19 House colleagues co-sponsored H.Res. 153 on April 12. (Getty Images)

Monday, 22 Apr 2013 09:32 PM

By Joseph Schmitz

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Joseph E. Schmitz' Perspective: The Chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks of Arizona, and 19 House colleagues co-sponsored H.Res. 153 on April 12, “Expressing the sense of the House of Representatives that the Patient Protection and Affordable Care Act of 2009 violates article I, section 7, clause 1 of the United States Constitution because it was a ‘Bill for raising Revenue’ that did not originate in the House of Representatives.”

The Supreme Court has never before addressed an Origination Clause challenge that was so blatantly obvious. The only surprise is that no one raised it sooner.

In this case, there is no serious question that Obamacare originated in the Senate. And thanks to last year’s Supreme Court ruling, there is now no question that it is considered a tax. It’s irrelevant whether or not the Obama administration attempts to characterize the measure as an amendment to a House bill.

According to a March 15, 2011, Congressional research Service (CRS) report, “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement," “The House’s primary method for enforcement of the Origination Clause is through a process known as ‘blue-slipping.’ Blue-slipping is the term applied to the act of returning to the Senate a measure that the House has determined violates its prerogatives as defined by the Origination Clause.”

One might ask why there was no “blue slip” in the House after Sen. Harry Reid introduced his 2,075-page self-described “Senate Health Care Bill,” which promptly morphed into an “amendment” to a six-page House bill unrelated to healthcare: “Service Members Home Ownership Tax Act of 2009,” which had passed the House by a vote of 416-0.

The answer is that the proverbial 13th hour circumstances of the enactment of the Patient Protection and Affordable Care Act (aka PPACA, ACA, or Obamacare), combined with the facts that (a) the Democrats controlled both the Senate and the House at the time, and (b) no one knew that the Supreme Court would sustain the individual mandate component of the “Senate Health Care Bill” under the taxing power (the focus was on the Commerce Clause), suggesting that this one just slipped by everyone in the House who might have blue-slipped it — pun intended.

According to the above-mentioned CRS Report, “Any Member of the House may offer such a [blue-slip] resolution, but normally it is the Chairman of the Ways and Means Committee who would do so. Occasionally, another member of the committee may be designated.”

The CRS Report explains, “because enforcement of the Origination Clause in the House is based on a question of the constitutional privilege of the House, it is not subject to restrictions based on timeliness. The House can assert its privilege at any time it is in possession of the bill and related papers (that is, anytime the actual documents are not physically in possession of the Senate or a conference committee). Therefore, the House is not limited to enforcing its prerogative only through blue-slipping a measure upon its initial receipt from the Senate.”

The same CRS report observes: “unlike its [own] rules, which the House may choose not to enforce at its discretion, the House may not choose simply to waive the Origination Clause.”

Accordingly, even if this “blue slip” process slipped by everyone who might otherwise have “blue slipped” it, a court can still find that the Origination Clause has been violated, and upon such a finding declare Obamacare unconstitutional, null and void, even though passed by both Houses and signed by the president.

As the Court explained in its latest Origination Clause challenge (United States v. Munoz-Flores, (1990)), “A law passed in violation of the Origination Clause would be no more immune from judicial scrutiny because it was passed by both houses and signed by the president than would a law passed in violation of the First Amendment.”

One court case challenging Obamacare under the Origination Clause, Sissell v. HHS, is currently pending a motion to dismiss in the United States District Court for the District of Columbia.

The plaintiff in that case, Matt Sissell, amended his complaint following the Supreme Court’s Obamacare decision to allege that the act’s requirement that nonexempt individuals who do not buy a federally prescribed health-insurance plan make a “shared responsibility payment” along with their tax filings is “a tax that violates the Constitution’s Origination Clause, which requires all revenue-raising bills to originate in the House of Representatives.”

One of the arguments for dismissal propounded by the Department of Justice is that, “the court’s review under the Origination Clause is quite limited, as the clause imposes only minimal requirements. It may be for that reason that the Supreme Court has reviewed only eight Origination Clause claims in its history, and that it is has never invalidated an Act of Congress on that basis.”

The Justice Department also argues that Matt Sissell’s Origination Clause “claim fails for two simple, independent reasons: the ACA originated in the House as H.R. 3590 and, even if this court determines otherwise, the ACA is not a ‘Bill for raising Revenue’ within the meaning of the Origination Clause.”

Sen. Harry Reid’s own description of his bill as the “Senate Health Care Bill” belies the argument that it originated in the House.

Chief Justice Robert’s opinion that the individual mandate portion of the Affordable Care Act is only constitutional under Congress’ power to tax also belies the Justice Department’s argument in Sissell v. HHS that it was not a “Bill for raising Revenue.”

The March 20, 2010, “Estimated Revenue Effects” prepared by the congressional Joint Committee on Taxation for the “Patient Protection and Affordable Care Act” — “as passed by the senate, and scheduled for consideration by the house”  — were $487.8 billion in net total revenue between 2010 and 2019, which is consistent with Senator Reed’s still-posted comments on introduction of his self-described “Senate Health Care Bill” that “This bill will cut the deficit by $130 billion”; the Supreme Court has never upheld such a blatant Senate-originated “Bill for raising Revenue.”

Regardless of how the District Court in Sissell rules on the motion to dismiss, this case will hopefully provide an opportunity for Chief Justice Roberts to redeem himself — based on his own rationale for upholding Obamacare.

In any event, other parties in ongoing litigation over Obamacare should also amend their complaints accordingly — following the lead of Matt Sissell — to include a cause of action under the Origination Clause. In the meantime, voters should encourage their congressmen to reaffirm the Origination Clause by co-sponsoring H.Res. 153.

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.

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