In a stormy hearing on Tuesday, the House Judiciary Subcommittee on the Constitution and Civil Justice heard expert testimony that the enactment of Obamacare was unconstitutional because the legislation originated in the Senate rather than the House.
With attorneys providing testimony for the subcommittee chaired by Republican Rep. Trent Franks of Arizona, the hearing provided a preview of an upcoming court case that will examine the origination of the Affordable Care Act.
The attorneys will also present their arguments in Sissel v. Health and Human Services before the D.C. Circuit Court of Appeals on May 8, with the case expected to eventually go to the U.S. Supreme Court.
Under Article 1, Section 7 of the U.S. Constitution, "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."
But when Obamacare was passed, Washington, D.C., attorney Paul Kamenar argued at the hearing, it was the Senate that went first with the legislation, with the House later concurring.
Kamenar pointed out to the subcommittee that Senate Majority Leader Harry Reid of Nevada introduced the measure that eventually became the Affordable Care Act on Nov. 18, 2009, and in two different press releases characterized the measure with the phrase "Senate Health Care Bill."
Kamenar also noted that the Supreme Court in 2012 upheld the ACA on the grounds that it was a tax, or "revenue-raising measure."
"The Senate took a six-page House bill giving tax credits to veterans who buy homes, gutted it, and replaced it with the 2,074-page Senate Health Care Bill," Kamenar told the panel.
In so doing, the Senate kept only the House Bill number, ostensibly to create the fiction that the bill originated in the House and thus satisfied the Origination Clause.
Kamenar called this unprecedented maneuver a legislative sleight of hand that clearly violated the Origination Clause because the bill, not just the House Bill number, must originate in the House.
"The Senate may not design new bills," said Kamenar, and "can't make a law that violates the Constitution."
Todd Gaziano of the Pacific Legal Foundation told the panel that "the people's House originates taxes" and that the Founding Fathers wanted voters to weigh in against the U.S. Representatives who were elected every two years if they felt they had raised taxes too much.
U.S. House members "suffer the voters' wrath," Gaziano said. "That was the plan."
Rounding out the battery of experts at the hearing was onetime Rhodes Scholar Nicholas Schmitz, who is considered an authority on the Origination Clause and has co-authored an article titled "The Origination Clause: Meaning, Precedent, and Theory From the 12th to the 20th Century."
"The notion that Obamacare is the law of the land because the Supreme Court upheld it is a myth," Kamenar told Newsmax after his testimony. "Origination has not yet been raised before the Supreme Court. So stay tuned."
Franks and more than 40 other House members have co-sponsored a resolution (HR 153) expressing the view that Obamacare violates the stipulation on the origination of tax measures in the House.
Firing back hard against the testimony was Washington, D.C., attorney Joseph Onek, a former official in the Carter and Clinton administrations and onetime senior counsel to House Democratic Leader Nancy Pelosi of California, who argued that "the government would be perfectly happy if it didn't get a dime" in revenue because its purpose was "to provide health insurance."
Raising the decibel level at the hearing was Democratic Rep. Jerrold Nadler of New York, who ticked off statistics dealing with enrollment in Obamacare and dismissed the Tuesday session as "a frivolous hearing."
"I felt the three witnesses articulated the case for origination strongly, and the opposition is so committed to save Obamacare at all costs that they just tried confusing the issue," Republican Rep. Ron DeSantis of Florida, a member of the subcommittee, told Newsmax.
DeSantis strongly supports the House resolution dubbing Obamacare a violation of the Origination Clause, and said, "The speaker should bring it up for a vote as soon as possible."
DeSantis recalled how enactment of the Senate version of the ACA in December of 2009 was followed by Republican Scott Brown's dramatic win in a special U.S. Senate race in Massachusetts for the seat of the late Edward Kennedy.
"That was probably the most clear showing of voter opposition to Obamacare," he said. "And that's when the House decided to take the Senate bill rather than nothing. In the process, they made short shrift of the origination doctrine, preferring to react to the politics of the moment rather than satisfy their Constitutional oaths."
DeSantis recalled Onek's testimony that if the House objected to the Senate version of ACA as a tax bill, the House could have "blue-slipped it" — that is, return it to them on the grounds that it contained a revenue increase.
What Onek didn't mention, said DeSantis, "was that the Democratic majority of the House at the time was not sensitive to constitutional principles. Now, it certainly is."
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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