Spinning Obamacare Won't Make It Legal

As the U.S. Supreme Court is on the verge of possibly striking down yet another aspect of Obamacare in King v. Burwell (see “Supreme Court Could Kill Obamacare”), even principled opponents of Obamacare are starting to repeat the blatant lies of the Obamacare spin-doctors as if they were true.

It is as if these Obamacare opponents have been brainwashed like Ivan Pavlov’s famous dogs, conditioned to salivate at the sound of a bell — without thinking.

Blatant lie No. 1: as posted on the tax-payer financed HealthCare.gov website: “On June 28, 2012 the Supreme Court rendered a final decision to uphold the health care law.”

Truth is that the U.S. Supreme Court on June 28, 2012, issued four separate opinions in NFIB v. Sebelius, the result of which was definitely not “a final decision to uphold the health care law.”

Chief Justice Roberts explained in his June 28, 2012, opinion, “Today we resolve constitutional challenges to two provisions of the Patient Protection and Affordable Care Act of 2010: the individual mandate, which requires individuals to purchase a health insurance policy providing a minimum level of coverage; and the Medicaid expansion, which gives funds to the States on the condition that they provide specified health care to all citizens whose income falls below a certain threshold.”

Only one of two provisions before the court in 2012 survived constitutional scrutiny. The individual mandate survived only because the chief found it to be “within Congress’ power to tax.”

In the next sentence, Chief Justice Roberts wrote, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions.”

Only 4 of the 8 other Justices agree with the chief to uphold the individual mandate. Six others agreed with the chief justice that the Medicaid expansion portion was unconstitutional. The claim posted on HealthCare.gov that “On June 28, 2012 the Supreme Court rendered a final decision to uphold the health care law” is thus demonstrably false.

Blatant lie No. 2: The U.S. Senate “originated” Obamacare by "amending" House Resolution (H.R.) 3590, titled the Service Members Home Ownership Tax Act of 2009.

It is true that Senate parliamentarians purported to convert what Sen. Harry Reid by his own words unveiled as the “Senate Health Care Bill” on Nov. 18, 2009, into an “amendment” to H.R. 3590. A month later, however, Sen. Reid apparently did not get the amendment word.

On Dec. 19, 2009, he announced in an official press release: “Nevada Senator Harry Reid today introduced the final Senate version of the Patient Protection and Affordable Care Act, moving us even closer to final passage of this historic legislation. This bill will reduce the deficit by $132 billion the first 10 years and roughly $1.3 billion in the second 10.”

Blatant lie No. 3: The Affordable Care Act is the “law of the land.” Even Republicans in Congress repeat this lie, both directly and indirectly in the form of rhetoric to “repeal the law.”

The Origination Clause of the U.S. Constitution provides that: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”

The Supreme Court has never addressed an Origination Clause challenge to anything like Obamacare. The last case to overturn a revenue-raising bill originating in the Senate was a hundred years ago.

In Hubbard v. Lowe, the judge began his opinion, “That an unconstitutional statute is not a law at all is a proposition no longer open to discussion,” and concluded: “The Cotton Futures Act is not, and never was, a law of the United States. It is one of those legislative projects which, in order to be a law, must originate in the lower house.”

Members of the House of Representatives can and should resist the Pavlovian urge to talk of “repealing the law” when that would-be law never was “a law of the United States” because it was a bill for raising revenue — according to Heritage, “nearly $800 billion over 10 years” — that originated as Sen. Harry Reid’s “Senate Health Care Bill.”

Instead, House members should support efforts by House Judiciary Subcommittee on the Constitution Chairman Trent Franks to enact a veto-proof unicameral House Resolution that sheds light on and belies the blatant lies of the Obamacare spin-doctors: The Supreme Court has never upheld the entire “healthcare law”; Obamcare originated as the “Senate Health Care Bill”; and, therefore, Obamacare “is not, and never was, a law of the United States. It is one of those legislative projects which, in order 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.