Tags: ACA | Obamacare | unconstitutional | court

Affordable Care Act Is Likely Unconstitutional

By Barry Elias   |   Friday, 20 Dec 2013 07:03 AM

The implementation of the Affordable Care Act (ACA) has been dismal. Areas of major concern include compromised data security, with ramifications that could last decades; application processing errors; inordinate time delays; and the extraordinary cost.

Notwithstanding these issues, the supporters of Obamacare need to be concerned with H.R. 153. Introduced by Rep. Trent Franks, R-Ark., H.R. 153 states the ACA violates the Origination Clause of the Constitution, since it is a "bill for raising revenue" that did not originate in the House of Representatives.

The ACA was originally introduced in the Senate. This would deem it unconstitutional.

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In June 2012, the Supreme Court declared the ACA is unconstitutional, since it violated the Commerce Clause, which stipulates the government cannot compel individuals to engage in commerce — that is, to purchase goods and services. However, the court declared the ACA is constitutional, since it is legislates a tax, which is permissible.

The Obama administration argued before the Supreme Court that the ACA imposes a tax in an attempt to guarantee its constitutionality. Ironically, this position was diametrically opposed to that taken by the administration leading up to its passage in 2010.

According to article I, section 7, clause 1 of the U.S. Constitution, tax measures need to originate in the House due to the Origination Clause. The thinking here is that House members represent their constituents more closely than Senators and the power of the purse should reside closest to the people and their direct representatives.

Supreme Court Chief Justice Roberts could have made this case in his original majority argument. In addition to claiming the ACA violated the Commerce Clause, he could have stated the ACA also violated the Origination Clause, even though the legislation is a bona fide taxation vehicle.

This would have rendered the entire piece of legislation unconstitutional.

In June 2013, Judge Beryl Howell of the U.S. District Court for the District of Columbia ruled Obamacare is constitutional, since it is not a bill to raise revenue and the Senate did not violate the Origination Clause of the Constitution, because it can amend a piece of legislation (Service Members Act) by substituting it with a completely different bill (ACA).

Neither is accurate.

The Supreme Court ruled ACA is a bill to raise revenue, and the Origination Clause does not permit an amendment that completely substitutes a new bill.

In November 2013, the Senate eliminated the possibility of filibuster for presidential nominations to federal judiciary and executive appointments. This unprecedented measure now permits a simple majority of 51 votes instead of the 60-vote supermajority to end debate and bring these confirmations to a vote. Democrats currently hold 53 seats, and there are two Independents. The House of Representatives eliminated the ability to filibuster in 1842.

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The implementation of this "nuclear option" is seen as a vehicle to confirm three Obama selections to the U.S. Court of Appeals to the District of Columbia Circuit in an attempt to negate a repeal of the ACA.

Despite an attempt by the administration to legislate from the bench, the constitutionality of Obamacare may be decided again by the Supreme Court. Barring a change in its current complexion, the ACA is likely to be deemed unconstitutional by the high court.

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