Repealing Obamacare: Use 10th Amendment Rule of Construction for Ambiguities

Senator Ted Cruz continues to remind us that, "For seven years the Republicans have been promising, 'If only you elect us, we’ll repeal Obamacare.'" Donald Trump, in his "Contract with the American Voter," pledged to support legislation that "fully repeals Obamacare and replaces it with Health Savings Accounts, the ability to purchase health insurance across state lines and lets states manage Medicaid funds."

President Trump and Republican Senators should fulfill their promises to the American People, and in the process clinch a constitutionally sound victory out of the ongoing debate over how best to repeal what remains of Obamacare after the Supreme Court struck down its "State Mandate" as unconstitutional in 2012. Century old judicial precedent suggests, based on the Constitution’s "Origination Clause," that the entire debacle "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 (SDNY 1915)).

Origination Clause challenges to Obamacare began after the Supreme Court sustained the "Individual Mandate," but only as a "tax." Those challenges never reached the Supreme Court because Senator Harry Reid’s "nuclear option" allowed the Democrats to pack the lower courts where challenges were pending, and Justice Antonin Scalia’s death foreclosed the necessary fourth vote for certiorari.

The Origination Clause, Article I, Section 7, of the Constitution, 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." Senator Harry Reid "originated" Obamacare on November 18, 2009, when in the words of his own press release he "unveiled the Senate health care bill"; later in another official press release Senator Reid explained that, "This bill will reduce the deficit by $132 billion the first 10 years and roughly $1.3 billion in the second 10."

Senate Republicans should right the many wrongs that originated as the "Senate health care bill" by proposing an Amendment to the House Bill to repeal Obamacare that enacts a Rule of Construction based on the 10th Amendment, which provides that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Senate amendments should include this type of Rule of Construction: "Any ambiguities in this legislation, or in any remnant of Obamacare that survives this repeal, shall be construed in favor of "reserve[ing powers] to the States respectively, or to the people" (U.S. Const., Amend. X) in accordance with this guiding principle from the U.S. Supreme Court in New York v. United States, 505 U.S. 144, 157 (1992): "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people."

To the extent that federal agencies or courts must resolve ambiguities in the meaning of the Obamacare repeal legislation, or in any remaining remnants of Obamacare, it is only right and proper that they should utilize a statutory Rule of Construction based on the final provision of the Bill of Rights as an interpretive rule to construe ambiguities against the proffering party, i.e., against the Congress that enacted the legislation at issue.

As suggested in my 1996 article for the American Legislative Exchange Council, "The Forgotten Preamble: Introduction to the Bill of Rights Gives More Meaning to the Tenth Amendment," "Whenever federal courts and agencies are forced to ‘legislate’ by construing legal ambiguities, they should utilize the final provision of the Bill of Rights — ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States Respectively, or to the people’ — as an interpretive rule to construe ambiguities against the proffering party, i.e., against Congress."

Since the earliest days of our Republic, the Supreme Court has construed ambiguities in statutes that affect individual contracts contra proferentem, i.e., against Congress. As Justice Paterson wrote in a case involving a customs duty collector’s contract in 1806, "words of a statute, if dubious, ought . . . to be taken most strongly against the law makers." United States v. Heth, 7 U.S. (3 Cranch) 399, 413 (1806).

Now is the time for President Trump and Republican Senators to keep their promises with "We the People" by standing tall in support of our Constitution and our Bill of Rights. One bold way to do this is to codify the principles underlying the 10th Amendment as a Rule of Construction in the Obamacare repeal legislation.

Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now a Partner in the law firm Schmitz & Socarras LLP. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.