Constitutional Challenges to Obamacare Live On

On Aug. 7, four judges of the U.S. Court of Appeals for the D.C. Circuit dissented from an order denying a petition challenging the Patient Protection and Affordable Care Act of 2009, aka Obamacare, under the Origination Clause of the U.S. Constitution.

The Origination Clause 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 four dissenting judges argued Aug. 7 that, “It is difficult to say with a straight face that a bill for raising $473 billion in revenue is not a ‘Bill for raising Revenue’,” as a three-judge panel had ruled in July 2014: “The panel opinion alters the longstanding balance of power between the House and Senate, and ultimately affects individual liberty,” wrote the dissenting four judges. “We should correct the panel opinion’s error now rather than let it linger and metastasize.”

The order denied the petition for rehearing en banc (i.e., a petition to review the three-judge panel decision by all 11 active judges) filed by small businessman Matthew Sissel in the fall of 2014, which was delayed on account of the U.S. Supreme Court’s decision in King v. Burwell.

The stinging dissent improves the chances that the Sissel v. HHS Origination Clause challenge to Obamacare will ultimately be decided by the U.S. Supreme Court.

In response to the court order, Timothy Sandefur of the Pacific Legal Foundation, said this: “We knew going in that this case would ultimately end up on the Supreme Court’s doorstep, and now it’s time.” Pacific Legal Foundation is representing Matthew Sissel in the legal challenge.

The Supreme Court, however, may or may not resolve this ongoing constitutional challenge to Obamacare before the 2016 presidential election.

In the meantime, the chairman of the House Judiciary Subcommittee on the Constitution, Trent Franks, R-Ariz., recently reintroduced 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 challenges to Obamacare thus live on — as they should.

Constitutional Subcommittee Chairman Franks wrote in an amici brief in Sissel v. HHS on behalf of himself and 42 House colleagues, “The Origination Clause was a key provision upon which the Founders insisted to protect the American people from confiscatory taxes; they reposed such power to initiate any taxes in the ‘People’s House’ to be exercised by those representatives closest to the citizens.

"The Origination Clause thus serves an important bulwark to protect liberty. If the interpretation of the Origination Clause by the court below [reaffirmed by the D.C. Circuit, albeit with four judges dissenting] is not reversed, that Clause will be rendered a dead letter.”

“We the people” deserve better than a dead letter in our Constitution.

We deserve an Origination Clause that carries out its original purpose: reposing the power to originate taxes in the “people’s House” — to be exercised by our representatives who are the closest to those of us who pay taxes.

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.