Brief Exposes Obamacare as Unconstitutional

Late yesterday Paul Kamenar, Jacki Pick, and I filed an amici curiae brief on behalf of the chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks, R-Ariz., and 42 other members of the House of Representatives in support of the petition by the Pacific Legal Foundation for rehearing en banc by the U.S. Court of Appeals for the D.C. Circuit in the pending Origination Clause challenge to the Affordable Care Act, Sissel v. HHS (No. 13-5202).

According to the Constitution subcommittee's chairman, already 60 co-sponsors have lined up in support of House Resolution 153, which concurs with the lawsuit's premise that Obamacare violated Article 1, Section 7, Clause 1, of the U.S. Constitution: "All bills for raising Revenue shall originate in the House of Representatives."

According to Sen. Harry Reid’s website, the Affordable Care Act, aka Obamacare, originated as the “Senate Health Care Bill.” Reid’s official website still boasts his Nov. 18, 2009, official Press Release, “Reid Unveils Senate Health Care Bill.”

In addition to the 43 House Members, U.S. Sens. Ted Cruz and John Cornyn filed a separate amici brief, as did the attorneys general of 13 States: Texas, Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Nebraska, South Carolina, South Dakota, and West Virginia.

Last week, the D.C. Circuit ordered the Justice Department to file a response to PLF’s petition for rehearing en banc in Sissel v. HHS within 15 days.

The panel decision in Sissel held that the Affordable Care Act, which contained 20 revenue provisions designed to raise approximately $500 billion in revenues, is not a “bill for raising Revenue” under the Origination Clause because its “primary purpose” was not to raise revenue.

The 43 members of the House of Representatives argued that, “The history of that Clause, its purpose, and a proper reading of the relevant Supreme Court decisions, clearly demonstrate that the panel fundamentally erred in devising this novel ‘purpose test’.”

"It's not an outlier position here," Franks said. "The principle behind it was one of the primary justifications of the Revolution, because all the way back to the Magna Carta, we have always, as a people, been frustrated when someone taxed us in a way that in our minds did not parallel our best interests."

"We have always wanted to have the ability to vote out people who have taxed us in a way that is not fair or just. So the principal beneath it was one of the reasons America came into being," Franks said.

The healthcare law takes one-sixth of the U.S. economy and places it in the purview of government, Franks said of Obamacare's scope, calling it "the largest tax increase in history."

In their earlier amici brief in Sissel v. HHS, Chairman Franks and his House member colleagues argued, “If the interpretation of the Origination Clause by the court below is not reversed, that Clause will be rendered a dead letter.”

Even as these 43 members of the House endeavor to shed light on the truth about the Senate origins of Obamacare, the defendant in Sissel v. HHS continues to promote on its official website the false narrative that, “On June 28, 2012 the Supreme Court rendered a final decision to uphold the health care law.” The ongoing litigation puts the lie to the false narrative. The Supreme Court’s 2012 decision was neither final nor did it uphold the entire “health care law.”

The unpleasant facts for the Obama administration are that the same Supreme Court that barely upheld the individual mandate provision in 2012, and only because it was a tax, also struck down the state medicaid mandate provision of the Affordable Care Act as unconstitutional by a vote of 7-2. But the individual mandate tax, and the other 19 revenue provisions of Obamacare, all need to originate in the House if any of them are ever is to become law.

To shed further light on the Obama administration’s false narrative, and to quote the last case in which a federal court struck down as unconstitutional a mis-originated “bill for raising revenue,” the 1915 decision of the U.S. District Court for the Southern District of New York in Hubbard v. Lowe: the Affordable Care Act, aka Obamacare, “is one of those legislative projects which, to be a law, must originate in the lower house.” Sooner or later a court will acknowledge this fact.


The amici brief on behalf of Chairman Trent Franks and the other 42 members of the House of Representatives was drafted pro bono by Joseph E. Schmitz of Schmitz & Socarras LLP, former inspector general of the Department of Defense, jschmitz@SandS-LLP.com, constitutional lawyer and Supreme Court practitioner Paul Kamenar, paul.kamenar@gmail.com, and Jacki Pick, former counsel to the House Judiciary Subcommittee on the Constitution, jpick@tesla.net.

In addition to his briefs in Sissel v. HHS (D.C. Circuit), Constitution Subcommittee Chairman Franks has introduced a House Resolution declaring the Affordable Care Act unconstitutional because it originated in the Senate (H.Res.153), has held hearings on the Original Meaning of the Origination Clause, and has filed an amici curiae brief, joined by 42 House colleages, in another Origination Clause pending in the U.S. Court of Appeals for the 5th Circuit, Hotze v. Burwell, oral arguments for which are scheduled for the first week in December 2014. See Trent Franks Press Release.

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005, and is co-founder of Schmitz & Socarras LLP. Read more reports from Joseph E. Schmitz — Click Here Now.