No sooner had a three-judge panel of the D.C. Circuit Court of Appeals on Tuesday rejected arguments that Obamacare violates the Origination Clause of the Constitution than Obamacare opponents predicted that their case would soon be reviewed by the Supreme Court.
"We're disappointed but not surprised that the two Obama- and one Clinton-appointed judges who heard this case ruled against us," said constitutional attorney Paul Kamenar, who filed a friend of the court brief in the case on behalf of Rep. Trent Franks, R-Ariz., chairman of the House Judiciary Committee's Subcommittee on the Constitution.
Franks, who presided over hearings on this argument against the Affordable Care Act before his subcommittee in April, joined 40 of his colleagues in a friend of the court brief challenging the controversial law on constitutional grounds.
In arguments before the three judges in Sissel v. Health and Human Services in May, attorneys pointed out that the U.S. Supreme Court in 2012 upheld Obamacare on the grounds that the individual mandate was a "tax." Under Article I, Section 7 of the Constitution, they argued, all legislation that raises revenue must originate in the House.
But this "Origination Clause" was clearly violated, according to Timothy Sandefur, co-counsel for the Pacific Legal Foundation that launched the Sissel case, because the House bill that eventually became the Affordable Care Act was gutted by the Senate to substitute completely new language. The initial measure that came from the House provided tax credits to home-buying veterans and thus was "not a bill for raising revenue" and "did not raise taxes," said Sandefur.
The three jurists saw it differently.
Along with holding that the ACA is not a "bill for raising revenue," they ruled that "in interpreting the Origination Clause, the Supreme Court has held from the early days of this nation that 'revenue' bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue."
Kamenar, counsel to Franks, told Newsmax, "The court remarkably failed to address or discuss any constitutional history of the Origination Clause." Instead, he said, the judges relied on a couple of Supreme Court decisions, including a 1990 case, United States v. Munoz-Flores.
The court held in that case that a $25 fine imposed on a criminal under the Sentencing Reform Act [a bill that originated in the Senate] was a not a bill for raising revenue because the fine is only 'incidental' to the primary purpose of reforming criminal punishment, and that moreover, the fines are deposited in a special victims’ fund and not the general treasury."
Citing the brief filed by Franks and the other members of the House, Kamenar pointed out that this case is easily distinguishable from the "Munoz" case because "the ACA raises billions in revenue, all of which is deposited into the general treasury."
A near identical case on the Origination Clause and Obamacare, Hotze v. HHS, is now pending before the 5th Circuit Court of Appeals. Noting that he and his colleagues have also filed a brief there, Kamenar predicted a better outcome in that circuit and that "ultimately, these cases are headed for the Supreme Court."
John Gizzi is chief political columnist and White House correspondent for Newsmax.
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