Bury Obamacare in Ash Heap of History

Image: Bury Obamacare in Ash Heap of History Sen. Majority Leader Harry Reid of Nevada. (AP)

Thursday, 29 Aug 2013 04:06 PM

By Joseph Schmitz

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In addition to ongoing efforts to defund Obamacare, there is hope that the entire statute will be deemed unconstitutional because it did not originate in the House of Representatives.

“That an unconstitutional statute is not a law at all is a proposition no longer open to discussion” were the opening words of a 1915 judicial opinion striking down the “Cotton Futures Act” as a tax bill that unconstitutionally originated in the Senate.

The basis for the court ruling that the Cotton Futures Act was “not a law at all” was the Origination Clause of the U.S. Constitution: “All bills for raising revenue shall originate in the House of Representatives.”

The 1914 Senate-originated Cotton Futures Act contained (among other things) a penalty of “2 cents for each pound of the cotton involved” on cotton contracts that did not meet certain standards. The U.S. District Court for the Southern District of New York in Hubbard v. Lowe concluded: “The Cotton Futures Act is not, and never was, a law of the United States. It is one of those legislative projects which, to be a law, must originate in the lower house.”

Fast forward to the fall of 2009: Democratic Sen. Harry Reid introduced the entire text of Obamacare by proposing what his official website still touts as the “Senate Health Care Bill.”

This origination in the Senate morphed into an “amendment” (by an obscure parliamentary maneuver unknown to the framers), replacing a totally unrelated House bill that had been unanimously approved 416-0. The “amendment” replaced all 714 words of the House bill, which was designed to grant a tax credit to veterans, and inserted the 379,976 words of the self-described “Senate Health Care Bill” — including $675 billion in new revenue raising provisions claimed to “reduce the deficit by $130 billion.”

The only part of Obamacare that originated in the House is the H.R. bill number.

Thirty members of the House of Representative have now co-sponsored a House resolution introduced by the chairman of the House Judiciary Subcommittee on the Constitution, Congressman Trent Franks, R-Ariz., declaring that the Patient Protection and Affordable Care Act, aka “Obamacare,” violated the Origination Clause because it originated in the U.S. Senate as Sen. Reid’s self-described “Senate Health Care Bill.”

After the 1915 court ruling in Hubbard v. Lowe that the Cotton Futures Act was “not a law at all” because it originated in the Senate, the Congress was forced to reintroduce the bill all over again in the House of Representatives because it contained tax provisions that had originated in the Senate.

Such should be the fate of the “legislative project” President Obama signed in 2010 as the Patient Protection and Affordable Care Act, because it, like the Cotton Futures Act 96 years earlier, violated the Origination Clause and therefore “is not a law at all.”

While there are many differences between Obamacare and the statutes presented in prior Origination Clause cases, including those presented to the U.S. Supreme Court, let’s not lose sight of one of the most distinguishing features of Sen. Reid’s self-described “Senate Health Care Bill,” as described by Senator Reid himself: “This bill will cut the deficit by $130 billion.”

In absolute dollars, the “legislative project” known as Obamacare would be the largest tax increase in U.S. history. Even in inflation adjusted dollars, it would still be one of the largest tax increases in a generation — including $675 billion in new revenue raising provisions.

The scale of this exercise of “Congress’ power to tax” (according to Chief Justice Roberts) makes most all other modern exercises of this power pale by comparison. In stark contrast to the taxes the Supreme Court considered in its eight historical instances of Origination Clause adjudications, the magnitude of the taxes in Obamacare makes the comparison ludicrous.

Obamacare is neither a “2 cent” tax on shady cotton contracts, nor a $25 criminal penalty for violators of criminal immigration statutes, as was the case in the court’s most recent Origination Clause ruling in 1990.

If it survives the currently pending Origination Clause judicial challenges, of which there are at least two (one in the U.S. Court of Appeals for the D.C. Circuit and one in the U.S. District Court for the Southern District of Texas), Obamacare would effectuate a $675 billion revenue raise accomplished through approximately 20 new Senate-designed tax provisions collected by the IRS, and paid into the general U.S. treasury.

And if this weren’t distinct enough from all other past Origination Clause cases upon which the Supreme Court has ruled, in the case of Obamacare the Supreme Court itself has already settled that this “law” cannot conceivably pass constitutional muster under any pretext other than “Congress’ power to tax.”

And even then, according to Chief Justice Roberts, “if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution." Nobody at that point had raised an Origination Clause challenge.

When one or both of the currently pending lower court cases raising such challenges ultimately reaches the Supreme Court, it will be hard to argue that the $675 billion in new revenue began in the Senate as anything other than a revenue raising bill.

Unfortunately, the district judge in Sissel v HHS (currently on appeal to the D.C. Circuit), a recent Obama appointee and former counsel to Sen. Patrick Leahy, did not seem to recognize such a distinction.

The pending appeal to the U.S. Court of Appeals for the D.C. Circuit in Sissel v. HHS is mirrored by another challenge pending in the U.S. District Court for the Southern District of Texas, Hotze v. Sebelius.

In the latter case, the U.S. Justice Department concluded its written defense of the bill’s taxes in an Aug. 6, 2013, motion by arguing that Obamacare’s “compliance with the Origination Clause is underscored by the House’s acceptance of the Senate’s amendment [and that the House] did not believe there was any Origination Clause defect with the enactment of the ACA.”

This argument, of course, ignores the fact that both Houses — and the nation — had no reason to believe that Obamacare was being passed pursuant to the taxing power at the time of passage. Nor were members permitted to read the bill in its totality.

Recall Speaker Pelosi’s infamous statement that the House must pass this bill so that Americans could learn what was in it. It was long after the passage that Chief Justice Roberts would shock most all constitutional scholars with his opinion upholding the bill under the taxing power.

So why haven’t Speaker of the House John Boehner and other “leaders” in the House of Representatives publicly endorsed Chairman Trent Franks’ House Resolution 153 yet?

Perhaps because they have not yet heard from enough voters. After all, it was Speaker Boehner who correctly declaimed the “Senate Health Care Bill” when it was first raised for consideration in the House (under the auspices of an amendment to an unrelated House Bill):

“When we came here, we each swore an oath to uphold and abide by the Constitution as representatives of the people. But the process here is broken. The institution is broken. And as a result, this bill is not what the American people need nor what our constituents want.”

We all know now (thanks to Chief Justice Roberts) that Obamacare was enacted under “Congress’ power to tax.” In the plain meaning of the word “originate,” it did not originate in the House of Representatives.

Just like the Cotton Futures Act, therefore, it is “not a law at all,” and voters should urge their elected representatives in the “People’s House,”each of whom swore to “support and defend” the Constitution, to co-sponsor House Resolution 153.

By doing so, the elected representatives of “We the People” acknowledge that Obamacare, which Sen. Reid introduced in the Senate on Nov. 18, 2009, as the self-described “Senate Health Care Bill,” is “one of those legislative projects which, to be a law, must originate in the lower house,” and accordingly should be forever buried in the ash heap of unconstitutional history.

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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