This morning, October 26, 2015, the Pacific Legal Foundation (PLF) filed a petition with the U.S. Supreme Court on behalf of their client Matt Sissel asking the justices to review our challenge to the constitutionality of Obamacare. In their petition, PLF argues that if, as the Court said three years ago, the law imposes a “tax on going without health insurance,” that tax is unconstitutional because the Constitution requires that all bills for raising revenue originate in the House of Representatives, and Obamacare originated in the Senate.
The D.C. Circuit Court of Appeals rejected our challenge a few months ago, holding that the Individual Mandate tax may be a tax, but it isn’t a “bill for raising revenue,” because its “primary purpose” was to force people to buy insurance. And since it’s not a bill for raising revenue, the Origination Clause does not apply. But four of the Circuit’s judges wrote a lengthy dissent, pointing out that that theory would mean that the Senate could originate taxes any time it wants, so long as it embeds them in a bill for some other “purpose.” It could say a gas tax has a broader purpose of increasing oil independence, or that a tax on cigarettes has the larger purpose of getting people to quit smoking. The “primary purpose” theory basically allows the Senate to create taxes at will, through a semantic trick. That’s a disturbing idea, even aside from the constitutionality of Obamacare. It’s certainly not what the founding fathers intended.
The authors of the Constitution knew that the power to tax was a dangerous power—one the authorities often use to get their way. Therefore, they designed a system to keep that power in the hands of the most democratic branch of the federal government—the House of Representatives, elected every two years by voters in local districts—instead of giving that power to the Senate. That might seem like a technicality to some, but the Supreme Court explained in a 1990 case called U.S. v. Munoz-Flores that this kind of technicality is essential to “safeguard liberty.” In that case, written by Justice Thurgood Marshall, the Court pledged to enforce the Origination Clause in an appropriate case.
The PLF is taking the position that this is just such a case. Rather than following the constitutionally prescribed procedure, Congress created the “Affordable Care Act” by taking a 6-page bill the House had passed on a totally different subject, and “amended” it by erasing its entire contents and substituting the 2,000+ pages that became Obamacare. This was done as part of an overall effort to avoid fair democratic deliberation over the merits of that law. In fact, a majority of Americans has never supported Obamacare, and still don’t. Things will only get worse as premiums continue to rise, state-funded “exchanges” fail, and enrollment continues to fall short.
Of course, the White House likes to say that the debate is “over,” and that it’s “the law of the land.” But constitutional challenges are still ongoing, and will continue, given the many constitutional and statutory flaws in the Act. In addition to Matt Sissel’s lawsuit, there are cases challenging the many illegal delays and postponements and exemptions that the White House has arbitrarily issued—including lawsuits filed by the U.S. House of Representatives and by state governments, as well as the contraception mandate cases, and others. Obamacare is seen as unconstitutional in so many ways, that these types of arguments will continue until the law is repealed or amended to make it consistent with the Supreme Law of the Land.