Now that the chief justice and four associate justices of the Supreme Court have concluded that the individual mandate portion of Obamacare “was within Congress’s power to tax,” there’s a new constitutional Achilles’ heel for Obamacare: The legislation originated in the Senate, but the “Origination Clause” of the Constitution requires that “All Bills for raising Revenue shall originate in the House of Representatives” (Article I, Section 7, Clause 1).
The parties to the Obamacare litigation should file petitions for rehearing at the Supreme Court based on this, which nobody had serious reason to focus on until the chief justice surprised everyone with his “power to tax” ruling.
Any doubt as to the Senate origin of Obamacare is dispelled by Sen. Harry Reid’s official website, which confirms that on Nov. 18, 2009, “Senator Harry Reid unveiled the Senate health care bill that makes health care more affordable while reducing the federal deficit” (http://www.reid.senate.gov/newsroom/111809_healthcare.cfm).
The next day’s Congressional Record recasts this “Senate healthcare bill” as “SA 2786 . . . an amendment to be proposed by him to the bill H.R. 3590,” the “Service Members Home Ownership Tax Act of 2009.”
H.R. 3590 was a six-page bill introduced by Congressman Rangel on Sept. 17, 2009, the stated purpose of which was, “To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.”
It passed the House by a vote of 416-0. Neither its principal stated purpose nor any of its “other purposes” had anything to do with healthcare.
The court has never addressed a violation of the Origination Clause such as this head on. In its most recent Origination Clause case, United States v. Munoz-Flores (1990), which Justice Scalia cites for the proposition that, “Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry,” the court concluded that the legislation at issue was not a “bill for raising revenue.”
Reid’s self-described “Senate health care bill” contained 17 separately numbered “Revenue Provisions,” including, for example, an “Annual Fee on Medical Device Manufacturers and Importers.”
Any argument that Congress does this all the time misses the constitutional mark in at least two ways.
First, when in the past the Supreme Court has allowed such a maneuver in the face of an Origination Clause challenge, the court did so on grounds that, “The amendment was germane to the subject matter of the bill” (Flint v. Stone Tracy Co., 220 U.S. 107 ).
Nothing in Reid’s “Senate healthcare bill” was germane to the House resolution it purported to amend.
Second, and more fundamentally, it does not matter that the Senate has done this in the past, and has not been held to account for it.
As the Supreme Court reiterated in New York v. United States, 505 U.S. 144 (1992), which the recent opinions of the Court cite no fewer than 20 times in finding parts of Obamacare unconstitutional, “The question is not what power the Federal Government ought to have but what powers in fact have been given by the people,” quoting United States v. Butler, 297 U.S. 1, 63 (1936).
It is rhetorical to ask where in the Constitution the people have “in fact” conferred upon their federal government the power to enact Obamacare “within Congress’s power to tax.”
The joint dissenting opinion of Justices Scalia, Kennedy, Thomas, and Alito explains the history and purpose of the Origination Clause:
Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.
The Federalist No. 58 "defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.
In his concurring opinion in Munoz-Flores, Justice Scalia had written that, “We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, see Art. I, § 5, cl. 1; or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote.
"Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.”
Justice Scalia has already opined that Obamacare is unconstitutional. Moreover, Justice Scalia has acknowledged that, “Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional.” Accordingly, any invocation of “mutual regard” for a coordinate branch of government at this stage would defy logic.
In any event, in reaching its holding in Munoz-Flores, Justice Thurgood Marshall explained for the court (joined by six other justices) that “this court has the duty to review the constitutionality of congressional enactments” in the context of an Origination Clause challenge.
The Supreme Court has yet to satisfy its “duty to review the constitutionality” of Obamacare as a “bill for raising revenue” under the Origination Clause. Pursuant to the court’s rules, parties can petition for rehearing within 25 days of the decision.
On rehearing, the Supreme Court should utilize the final provision of the Bill of Rights —“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” — as a rule of construction to construe any ambiguities in Obamacare against the proffering party, i.e., against Congress.
Even if the parties do not petition the Supreme Court for rehearing, those parties — and any other parties affected by Obamacare’s new revenue-raising provisions — should amend their trial court complaints to include a constitutional cause of action under the Origination Clause.
Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC.
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