Supreme Court Scrutiny Faced by Obamacare

“Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the origination clause" are the final two sentences of George Will’s recent column (www.newsmax.com/GeorgeWill/tax-obamacare-origination-appeals/2014/05/05/id/569451/). Mr. Will’s bottom line has apparently struck a nerve with ardent supporters of the Accordable Care Act (“ACA”).

The origination clause will be front and center in the U.S. Court of Appeals for the D.C. Circuit on Thursday, May 8. The three-judge panel of the D.C. Circuit who will hear the Origination Clause appeal in Sissel v. HHS includes one Clinton appointee and two new judges who owe their Senate confirmation to Senator Harry Reid’s recent “nuclear option,” through which Senator Reid jettisoned 200 years of Senate tradition — some have suggested precisely so President Obama could “pack the court” to ensure the judicial survivability of his signature legislative accomplishment.

George Will is now under attack. One Obamacare supporter posted a Media Matters blog titled, “George Will Discovers ‘Obamacare's Doom’ in Routine Senate Procedure.”

The Media Matters blogger argues that, “Republicans certainly could have objected to the Democrats' decision to amend the tax modification bill that originated in the House. The House can object to apparent violations of the Origination Clause by sending the offending bill back to the Senate with a ‘blue slip’ indicating the problem. In the case of the ACA, the House never objected to the Senate's amendment.” The same blogger concludes that the United States Senate can amend any House bill that raises revenue, and in its place “substitute a different bill on a different subject.”

This so-called Senate “amendment” procedure is known in the vernacular as “gut and replace.” As applied to the Obamacare, George Will has accurately identified it as an unconstitutional “shell game.”

In George Will’s defense, at least three counterpoints are in order.

First, there was nothing “routine” about the way Senator Harry Reid introduced what he was still calling the “Senate Health Care Bill” a month after what FactCheck.org calls “one of the largest tax increases in American history, estimated to raise $675 billion in revenue” had been recast as an amendment to a non-germane six-page House Bill, “Service Members Home Ownership Tax Act of 2009.”

The stated purpose of the original House bill was to provide a “first-time homebuyers credit in the case of members of the Armed Forces” — not for raising revenue.

According to FactCheck.org, “There’s no question that the package of taxes and other revenue-raisers that the law contains constitute a large increase. The most recent estimate from the nonpartisan Joint Committee on Taxation puts the total for more than a dozen different tax increases and other ‘revenue-related provisions’ at $675 billion between now and 2022” (www.factcheck.org/2012/07/biggest-tax-increase-in-history/).

A legislative “shell game” of this magnitude has never before been tried.

Second, considering who was speaker at the time, it is patently absurd to suggest, as did the Media Matters blogger, that, “Republicans certainly could have objected to the Democrats' decision to amend the tax modification bill that originated in the House. The House can object to apparent violations of the origination clause by sending the offending bill back to the Senate with a ‘blue slip’ indicating the problem. In the case of the ACA, the House never objected to the Senate's amendment.”

Because blue-slipping requires a majority vote of the House of Representatives, Speaker (at the time) Nancy Pelosi would never have allowed a blue slip of the "Senate Health Care Bill" about which she quipped at the time, "We have to pass the bill so that you can find out what is in it.”

Third, according to the Media Matters blogger, Yale Professor Jack Balkan has suggested that, “[The challengers have] to show that the Senate can't amend a House bill that raises revenue and substitute a different bill on a different subject. The Supreme Court's cases, however, say that the Senate can do precisely that.”

As indicated above, the Supreme Court has never addressed an Origination Clause challenge of the likes of Obamacare (see FactCheck.org, quoted above).

Moreover, Professor Balkan’s quoted analysis of “Supreme Court cases” ends with the Court’s 1914 decision in Rainey v. United States, ignoring the Court’s most recent opinion on the Origination Clause, United States v. Munoz-Florez (1990), in which Justice Thurgood Marshall, citing Federalist 58, wrote:

“Provisions for the separation of powers within the Legislative Branch are thus not different in kind from provisions concerning relations between the branches; both sets of provisions safeguard liberty . . . A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the president than would be a law passed in violation of the First Amendment.”

In this constitutional light, George Will’s bottom line about Obamacare’s doom is fully consistent with Georgetown University Law Professor Randy Barnett’s recent conclusion, posted in a Washington Post blog (www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/12/the-origination-clause-and-the-problem-of-double-deference/): “Revenue bills ‘shall’ originate in the House of Representatives, but the Affordable Care Act did not. As constitutional questions go, this is about as easy as it gets.”

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.