The tax levied on Americans who don't buy health insurance under the Affordable Care Act is unconstitutional because it started in the wrong house of Congress in violation of the Constitution's Origination Clause, say arguments in a case on appeal before the U.S. District Court in Washington, D.C.
"The Supreme Court … said the Obamacare tax is not an enforcement penalty," Pacific Legal Foundation attorney Tim Sandefur told Newsmax. "They said this is actually a revenue-raising tax, in which case the Origination Clause does apply."
After the Supreme Court decision last year upholding Obamacare changed the definition of the levy, the foundation's attorneys amended their filing in the case, saying there was a constitutional flaw from the healthcare law's inception because the bill's language originated in the Senate, not the House.
"There is very little legal precedent on this matter," Sandefur said about the case, which could wind its way up to the Supreme Court.
The case, Sissel v. U.S. Department of Health and Human Services, was filed by PLF on behalf of plaintiff Matt Sissel — a two-tour Iraq War veteran who earned a Bronze Star. It was dismissed in June in favor of the government, but the suit was appealed on July 5.
PLF is set to file motions in the appeal by Oct. 24, but the ongoing government shutdown could spark delays in the case and push arguments or rulings into early next year, Sandefur said.
Until the appeal can be heard, support continues to mount, with amicus briefs filed by the Claremont Institute and another expected on Nov. 8 from the House Judiciary Subcommittee on the Constitution.
According to the subcommittee's chairman, Republican Rep. Trent Franks of Arizona, already 50 co-sponsors have lined up in support of H.R. 154, which concurs with the lawsuit's premise that Obamacare violated Article 1, Section 7, Clause 1, of the U.S. Constitution — which states "all bills for raising revenue shall originate in the House of Representatives."
"It's not a small issue," Franks told Newsmax. "We have a resolution just to try to point out to those considering this case that there is a big issue at hand here. Hopefully, with our involvement, it would involve the American people in a broader debate. We want to try to make sure people are more aware of the Origination Clause by our resolution."
The amicus filing, Franks said, affords members of Congress the ability to put their names behind their support of the Constitution.
"It's not an outlier position here," Franks said. "The principle behind it was one of the primary justifications of the Revolution, because all the way back to the Magna Carta, we have always, as a people, been frustrated when someone taxed us in a way that in our minds did not parallel our best interests."
"We have always wanted to have the ability to vote out people who have taxed us in a way that is not fair or just. So the principal beneath it was one of the reasons America came into being," Franks said.
The healthcare law takes one-sixth of the U.S. economy and places it in the purview of government, Franks said of Obamacare's scope, calling it "the largest tax increase in history."
Andrew Kloster, a legal fellow at The Heritage Foundation's Edwin Meese III Legal Center, calls the Origination Clause "an issue that is very difficult for courts to address."
"I personally don't think that it has legs," Kloster said of the appeal. "The Origination Clause is difficult to get into the courts because it's an internal matter for the legislative branch. Courts have said they will rule on Origination Clause issues, but I think the Obamacare one is probably one they won't touch."
Kloster cites the bill's history as a road map for those saying the Origination Clause was breached. It was first introduced on Sept. 17, 2009, as a House resolution by Democratic Rep. Charlie Rangel of New York and was called the "Service Members Home Ownership Tax Act of 2009." The House passed that measure and sent it to the Senate.
Because the Senate was making quicker progress than the House on writing legislation to extend healthcare to the uninsured, the Rangel resolution became the vehicle for the Senate to proceed with a comprehensive healthcare overhaul.
Once in the Senate, the bill was "gutted almost entirely" and retitled the "Patient Protection and Affordable Care Act," which passed on Dec. 24, 2009.
The Senate, Kloster said, took the skeleton of the House bill, "threw all of the meat out and completely rewrote the law."
"It's so changed from the original bill that you do have to ask the question, 'Is it violating at least the spirit of the Origination Clause?' and I think that is correct," Kloster said.
Sandefur, of the Pacific Legal Foundation, says his organization will continue to fight the legal appeal on behalf of Sissel, a portrait artist who now serves in the National Guard, and who stepped up even after the Supreme Court's ruling upholding the ACA, saying that he wanted to continue to fight.
"As a matter of political principle, he believes strongly in rights and limited government," Sandefur said.
Sissel made his rationale clear in an interview published in July 2010 by the Iowa Independent newspaper, when his case was originally filed.
"I find the individual mandate to be immoral," Sissel said. "The reason why I think it's immoral is because it's a group of people that are deciding what's best for me in my life … What it's trying to do is punish me by forcing me to pay for healthcare or pay a fine."
Standefur said it will take time before the issue can be resolved legally.
If the appeals court rules in Sissel's favor, the foundation would return to a trial court and seek an injunction against the enforcement of the law because it was unconstitutional, he said.
"I very much see this as a long haul," Standefur said. "I see this as part of the overall coalition in resisting further federal takeover of the medical industry in the country."
Kloster, the legal scholar, says the best bet to overturn Obamacare is through the political process rather than the courts.
"People keep hoping there is a silver bullet case that can deal with Obamacare, but there is no silver bullet. It's a long hard fight that involves defund, repeal and replace. All of the above," Kloster said.
Kloster said there are portions of the law that are still under legal challenge that might fall, including a lawsuit challenging contraception coverage, which he called "a very live issue."
"But that would not strike down the whole thing," he said.
Franks said the high court ruled on only one portion of the Obama healthcare law and has not yet dealt with the Origination Clause issue.
"Maybe this concern about the survival of the Constitution is not as big a deal as some of us think it should be," he said. "My biggest concern here is the Constitution might fall, simply because no one is willing to point out the obvious. I would rather be seen as an agitator here and point out the obvious than being seen as placid and reasonable and going along with the crowd."
Franks said he will continue to fight, fearing for future Americans who will be burdened by the Obamacare law.
"If we lose on this level, we'll appeal to the Supreme Court. Unless I'm dead, you can take that to the bank. This is going to be the political albatross that [Obamacare supporters] will carry with them into the next generation if it becomes ensconced in the economy," Franks said.
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