Supreme Court Could Kill Obamacare

The U.S. Supreme Court will hear oral arguments about Obamacare for the third time in three years tomorrow in King v. Burwell. At issue are two health insurance exchange and tax credit provisions of the 2010 Affordable Care Act, also known as “ACA” or as Obamacare.

The proverbial “elephant in the room” of the Supreme Court tomorrow is that the entire ACA could well be deemed unconstitutional — and therefore null and void — on account of it having originated as a “bill for raising revenue” in the Senate, contrary to the requirement in Article I of the Constitution that, “All Bills for raising Revenue shall originate in the House; but the Senate may propose or concur with Amendments as on other Bills” (Art. I, Sec. 7, cl. 1).

Last year, House Judiciary Subcommittee on the Constitution Chairman Trent Franks held a hearing on the Origination Clause. Nearly 100 Member of the U.S. House of Representatives have objected to the Senate origins of the ACA, one way or another.

The Obama administration’s latest legal brief in King v. Burwell in as much as admits this fatal constitutional flaw in the context of the narrow issues before the court.

According to the Justice Department’s brief of respondents filed with the Supreme Court on Jan. 21, 2015: “The Act’s Exchange and tax credit provisions originated in a bill [as opposed to a Senate amendment to a House Bill for Raising Revenue] drafted by the Senate Finance Committee,” and “The bill [as opposed to a Senate amendment to a House Bill for Raising Revenue] that ultimately became the ACA was a combination of the [Senate] Finance Committee bill and a bill drafted by the Senate Committee on Health, Education, Labor, and Pensions.”

The official “question presented” to the Supreme Court by the petitioners in King v. Burwell is this: “Section 36B of the Internal Revenue Code, which was enacted as part of the Patient Protection and Affordable Care Act (‘ACA’), authorizes federal tax-credit subsidies for health insurance coverage that is purchased through an ‘Exchange established by the State under section 1311’ of the ACA . . . The question presented is whether the Internal Revenue Service (‘IRS’) may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through Exchanges established by the federal government under section 1321 of the ACA.”

Even as the Supreme Court hears oral arguments on this narrow question in King v. Burwell, at least two other judicial challenges of the entire ACA are moving their way up to the Supreme Court.

In both Sissel v. HHS in the U.S. Court of Appeals for the D.C. Circuit, and Hotze v. Burwell in the U.S. Court of appeals for the 5th Circuit, the appellants challenge the entire Obamacare “legislative project” under the Origination Clause.

In either or both of these two pending Origination Clause challenges, the lower appellate court and ultimately the U.S. Supreme Court may well determine, as did the court in Hubbard v. Lowe, the last federal case to strike down an act of Congress under the Origination Clause, that the ACA, “is not, and never was, a law of the United States. It is one of those legislative projects which, to be a law, must originate in the lower house.”

Why should the U.S. Supreme Court parse the interstices of two federal tax-credit subsidies sections of the act when the entire ACA may soon be deemed “one of those legislative projects which, to be a law, must originate in the lower house”?

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is a Partner in the law firm of Schmitz & Socarras LLP. Read more reports from Joseph E. Schmitz — Click Here Now.