40 House Republicans Back Constitutional Challenge to Obamacare

Wednesday, 20 Nov 2013 02:53 PM

By Drew MacKenzie

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Forty House Republicans have filed a friend-of-the-court brief in a legal challenge to the Affordable Care Act. The suit is based on the Origination Clause of the Constitution, according to Breitbart.com.

The case — Sissel vs. United States Department of Health and Human Services — was filed in federal court in 2010 by the Pacific Legal Foundation on behalf of Iraq war veteran Matt Sissel, who owns a small business in Iowa. It is to be heard by a federal appeals court in early 2014.

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The Origination Clause states, "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills." Senate Majority Leader Harry Reid used a legislative "trick" so that none of the Affordable Care Act legislation originated in the House, according to Breitbart.

Reid took the Service Members Home Ownership Tax Act, which the House had passed unanimously in 2009, removed every word of its text after the first sentence, and then replaced it with the Obamacare language, the conservative website says.

In June, Judge Beryl Howell, who was appointed by President Barack Obama, dismissed Sissel's challenge, saying that "gutting and replacing" a bill was merely issuing an amendment to legislation that originated in the House.

Howell also pointed out in her decision that the Affordable Care Act was not "a bill for raising revenue," or, in other words, a tax, and ruled that the revenue raised by the bill was "incidental" to the law and was not covered by the Origination Clause.

In July, the Pacific Legal Foundation appealed Howell's ruling. The friend-of-the-court filing by the House Republicans gives Sissel's case a constitutional legitimacy, says Breitbart.

Support from 40 Republicans is vital because the Pacific Legal Foundation lawsuit "defends the constitutional authority of the lower chamber, the legislative body that is closest to the people," foundation attorney Paul J. Beard II told The Washington Times.

However the appeals court rules, the case is likely to end up with the Supreme Court and could be heard in late 2014.

Josh Blackman, assistant professor at the South Texas College of Law, says that it could turn out to be the greatest "legal mulligan" in history. The term "mulligan" is used by golfers to retake a bad shot.

"If you asked me several months ago about the likelihood of a court striking down the law on Origination Clause grounds, I would not have pegged it very high," Blackman said. "But the events of the last few months have altered my thinking. The events of the last week have crystallized it.

"In light of massive and widespread unpopularity, and tepid opposition from vulnerable Democrats, the thinking has changed. Considering the president decided to unilaterally waive one of the most significant features of the law … the legitimacy and finality of this law is far from settled.

"If the law was settled ... there would be no need for waivers."

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