HHS Website Promotes Unconstitutional Obamacare

As a taxpayer and former Senate-confirmed inspector general, I find it appalling that our tax dollars are paying for an officially Web-posted fraud on the American People: the website of the Department of Health and Human Services (HHS) currently misrepresents, in reference to the Supreme Court’s decision in National Federation of Independent Business (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012), that, “On June 28, 2012 the Supreme Court rendered a final decision to uphold the health care law.” 

The Supreme Court only upheld one part of “the health care law” in 2012, while in the same 2012 decision it struck down another part as unconstitutional by a vote of 7-2.

If I were HHS inspector general, I would investigate and hold accountable whomever within HHS was responsible for formulating the fraudulent assertion that the court upheld the entire “health care law.” In the meantime, I would also recommend that the fraud be taken down from the HHS website.

The Web-posted misrepresentation by HHS violates the core “integrity” principle underlying the Inspector General Act, which Congress recently amended to establish the “Council of the Inspectors General on Integrity and Efficiency,” the statutory mission of which is to “address integrity, economy, and effectiveness issues that transcend individual Government Agencies.”

Former HHS Secretary Kathleen Sebelius was at best complicit in this assertion when on Nov. 6, 2013, she testified to Congress that, “The law which passed both houses of Congress, was signed by the president, and upheld by the Supreme Court, gives millions of Americans an opportunity to obtain affordable health coverage.” 

As explained in my recent “Support and Defend” column, the ongoing litigation in both Sissel v. HHS (D.C. Circuit) and Hotze v. Burwell (5th Circuit), not to mention the Supreme Court’s June 30, 2014, decision in Burwell v. Hobby Lobby Stores, Inc., puts the lie to the officially-posted false narrative that the Supreme Court in 2012 “rendered a final decision to uphold the health care law.” The Supreme Court’s 2012 decision in NFIB v. Sebelius was neither final nor did it uphold the entire “health care law.”

The unpleasant fact for the current administration is 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 by a vote of 7-2.

As explained by the four Supreme Court Justices who dissented from Chief Justice Roberts’ opinion on the Individual Mandate portion of the Affordable Care Act, “Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional.” NFIB v. Sebelius, 132 S. Ct. at 2666-67 (Scalia, J., joined by Justices Kennedy, Thomas, and Alito, dissenting).

In both of the ongoing Origination Clause challenges in which I am representing 43 Members of the House (see Oct. 14, 2014, Amici Brief in Sissel v. HHS, and May 14, 2014, Amici Brief in Hotze v. Burwell), we present an essentially non-partisan constitutional argument that the Individual Mandate “tax,” and the other 19 revenue provisions of the Affordable Care Act, all need to originate in the U.S. House of Representatives if any of them are ever is to become law.

This non-partisan constitutional argument is supported by at least three judicial opinions, one federal and two state. The U.S. District Court in the last federal case to strike down an Act of Congress under the Origination Clause explained: “The Cotton Futures Act [of 1914] 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.” (Hubbard v. Lowe, 226 F. 135, 141 [S.D.N.Y. 1915], appeal dismissed, 242 U.S. 654 [1916]).

Likewise, the Supreme Court of Alabama held that Alabama statutory provisions at issue “clearly show that the law we are considering was one to raise revenue; and as the bill originated in the Senate, it is unconstitutional, and never had a legal existence. We must, therefore, dispose of these cases, as if that statute had never been attempted to be enacted.” (Perry County v. Railroad, 58 Ala. 546 [1877]).

More recently, as Chief Justice Roberts admonished in his 2012 NFIB v. Sebelius opinion, “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.”

Especially as the lower federal courts are actively considering the constitutionality of the entire Affordable Care Act under the Origination Clause, the U.S. Department of Health and Human Services should remove from its official website the blatantly fraudulent assertion that, “On June 28, 2012 the Supreme Court rendered a final decision to uphold the health care law.”

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.