George Will: Obamacare 'Doomed' Under Constitution's Origination Clause

Saturday, 03 May 2014 02:59 PM

By Sandy Fitzgerald

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Two years ago, when the Supreme Court declared Obamacare's penalty to be a tax, it "doomed" the healthcare reform act as an "unconstitutional violation of the origination clause," columnist George Will says.

This Thursday, the Washington, D.C., Court of Appeals, the nation's second-most important court, will hear arguments on whether the Affordable Care Act adheres to the Constitution's "origination clause,"  which declares that "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," Will writes in his column in The Washington Post Saturday.

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Will points out that the Democrat-controlled Senate passed Obamacare on a party-line vote "without a Democratic vote to spare, after a series of unsavory transactions that purchased the assent of several shrewdly extortionate Democrats.

Thursday's arguments, said Will, will show that the act was "indisputably a revenue measure" that did not originate in the House, which later passed the House on yet another party-line vote.

The appeals case was filed by Iowa artist and small-business owner Matt Sissell, who is being represented by the Pacific Legal Foundation, a group that litigates for limited government.

Sissell does not have and does not want health insurance, saying he'd rather invest in his business, and object to paying a penalty for rejecting service under the Obamacare "shared responsibility payment" mandate.

But in June 2012, Will writes, the Supreme Court said the penalty is actually a tax, and mild enough that people can choose to pay it rather than buy insurance.

"It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program," said Will. "This surely makes the ACA a revenue measure."

The Senate was able to pass the bill, said Will, by calling it an amendment to a tax credit bill passed in 2009 for members of the armed forces and federal employees who were first-time home buyers, but had nothing to do with health care.

"Two months later the Senate 'amended' this bill by obliterating it," said Will.

It then "renamed it and completely erased its contents, replacing them with the ACA’s contents."

But case law says that for the Senate to amend a House-passed revenue bill, the amendment must be "germane to the subject matter" of that bill.

"The Senate’s shell game — gutting and replacing the House bill — created the ACA from scratch," said Will. "The ACA obviously flunks the germaneness test, without which the House’s constitutional power of originating revenue bills would be nullified."

And while there are two kinds of bills that do now fit under the origination clause, Will said, the Obamacare tax is not enforcement penalty and does not raise revenue to support only one government program, both requirements under the clause, and do not fit the criteria.

Obamacare defenders say its tax is "not quite a tax" because it is not for raising revenue, but "the origination clause, a judicially enforceable limit on the taxing power, would be effectively erased from the Constitution if any tax with any regulatory — behavior-changing — purpose or effect were exempt from the clause," insists Will.

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