Rep. Franks Challenges Obamacare

The day before Thanksgiving, 46 members of the “people's House,” led by the chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks, R-Ariz, filed a “friends of the court” brief in the U.S. Supreme Court, pointing out how "obviously inadmissible" Obamacare is under Congress' power to tax based on the court's own precedent.

The case in which the House Members filed their Supreme Court amici brief is Sissel v. HHS.

Matt Sissel, a small business owner and Army veteran, is challenging the entire Affordable Care Act aka Obamacare under the Origination Clause of the U.S. Constitution, which 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.”

Joining Chairman Franks on the amici brief are House Freedom Caucus Chairman Jim Jordan, R-Ohio, 10th Amendment Task Force Chairman Rob Bishop, R-Utah, and former Texas Appellate Court Chief Judge Louie Gohmert.

Constitution Subcommittee Chairman Trent Franks is planning to hold an Origination Clause hearing in early January.

Chairman Franks and more than a dozen House colleagues recently introduced a House Resolution, H. Res. 392, "Expressing the sense of the House of Representatives that the enactment of the Patient Protection and Affordable Care Act of 2009, Public Law 111–148, violated article I, section 7 of the United States Constitution because it was a bill for raising revenue that did not originate in the House of Representatives.”

The Origination Clause only became a litigation issue after the Supreme Court’s 2012 opinion in NFIB v. Sebelius that the Individual Mandate provision of Obamacare could only be constitutional under Congress’ power to tax.

In the same 2012 opinion, the Supreme Court issued this caveat: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution."

In their amici brief filed Wednesday, Chairman Franks and 45 House co-amici argued: “The history of the Origination Clause, its purpose, and a proper reading of the relevant Supreme Court decisions, early federal court opinions, and State court decisions that interpreted their respective State Constitution Origination Clauses, all demonstrate that the court below fundamentally erred in devising [a] novel ‘primary purpose’ test.

"If allowed to stand, the ‘cornerstone’ of the Great Compromise of 1787 could easily be rendered a dead letter simply by the Senate labeling any revenue raising bill with a regulatory ‘primary purpose’.”

The Congressional amici brief relies heavily on a law review article published last year titled, “The Origination Clause: Meaning, Precedent, and Theory from the 12th to 21st Century.”

This peer-reviewed article was co-authored by the then chair of the Political Science Department at the U.S. Naval Academy, Professor Priscilla H.M. Zotti, and then Captain Nicholas M. Schmitz, who was serving at the time on the political science faculty at the U.S. Naval Academy.  

Chairman Franks’ brief also relies on the 1992 Supreme Court 10th Amendment decision in New York v. United States, which in turn relied heavily on a 1936 decision, United States v. Butler, for this explanation: “the 10th Amendment confirms that the power of the federal government is subject to limits that may, in a given instance, reserve power to the States . . . ‘The question is not what power the federal government ought to have but what powers in fact have been given by the people’.”

At issue in the 1936 Supreme Court case was the constitutionality of the Agricultural Adjustment Act of 1933, a bill which enacted processing taxes on agricultural commodities.

In striking down the law, the court explained that: "The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.

"The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end."

The Supreme Court in Butler further held that “the power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.”


It’s time for “We the People” to urge our representative in the “people’s House” to take down Obamacare, which originated in the U.S. Senate as its sponsor’s self-described “Senate Health Care Bill,” and which is projected to raise $500 billion in revenue over 10 years.

Perhaps with a new Speaker of the House, the people’s representatives will rise to the occasion and vote on H. Res. 392, calling out Obamacare for what it is: an “obviously inadmissible” utilization of Congress’ power of taxation that, in any event, originated in the wrong 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.