ObamaCare’s Original Sin

Originally published at American Thinker

Democrats tell us that ObamaCare is “the law of the land,” and that the Supreme Court declared it constitutional, and that we should get used to it — it’s here to stay. Actually, the Court found ObamaCare unconstitutional on two counts, but let it pass anyway.

The problem for defenders of ObamaCare is that its court challenges just keep coming. One place to check up on them is the website Health Care Lawsuits. In September, American Enterprise Institute ran an article by Chris Conover headlined “Will the Courts Derail Obamacare?” The article covers several of the ongoing court challenges to ObamaCare, including the status of each case. (The article also ran at Forbes.)

On October 5, National Review ran a terrific article by former federal prosecutor Andrew McCarthy that addresses a specific legal challenge: 

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause — not only as I have expansively construed it, but even under Matt’s narrow interpretation of the Clause. […] The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

McCarthy refers to the individual mandate, which Justice Roberts “rewrote” as a tax. However, the Senate bill that became ObamaCare had several other taxes, such as the tax on medical devices, before Roberts ever got to the law.

Another take on the Origination Clause issue was expressed in April at American Thinker by Daniel Smyth, editor of LibertyBlog. Smyth argues that “according to the Origination Clause, the Senate can’t amend any House bill, whether a bill for raising revenue or not, with the ‘gut-and-amend’ procedure.” In other words, the Senate’s tactic (of replacing in its entirety the text of a House bill) is itself unconstitutional.

On October 24, the U.S. Court of Appeals for the District of Columbia Circuit will hear an appeal in Sissel v. U.S. Department of Health & Human Services to decide whether ObamaCare violates the Origination Clause of the Constitution. Back in March, Valerie Richardson in The Washington Times opined:

The challenge citing the Origination Clause isn’t the only lawsuit against Obamacare, but it is the only one that has the potential to wipe out the entire act in one fell swoop. Other claims, notably the freedom-of-religion cases dealing with the birth control requirement, nibble at the fringes but would leave the law largely intact.

Back in 2012, American Thinker ran at least two articles that touched on the Origination Clause as it relates to ObamaCare (here and here).

Also in 2012, Volokh Conspiracy ran an article by Randy Barnet: “New Obamacare Challenge: The Origination Clause.” Barnet’s article is well worth reading. The article quotes from the press release of Pacific Legal Foundation (PLF) on their case, the aforementioned Sissel v. HHS. In addition to relief on the Origination Clause issue, Sissel seeks clarification on an issue that has bugged me:

In addition to the Origination Clause argument, our new complaint asks the court to explain what parts of Chief Justice John Roberts’ June 28 opinion are binding precedent and which are not. Legal scholars — and the Ninth Circuit Court of Appeals, in a recent opinion — have expressed confusion about what parts of the decision qualify as law, and what parts are simply Chief Justice Roberts’ personal views, or what lawyers call “obiter dictum.” We’ve asked the judge to declare that Roberts’ ruling about the Individual Mandate — that it exceeds Congress’ authority under the Commerce Clause — is indeed the law of the land, since it was joined by four other justices. [Link added.]

Since June, the Obama Administration has been spinning the Supreme Court’s decision as if it had won the case and upheld the Individual Mandate. In fact, that did not happen.

That’s gratifying to read, because not only the Obama Administration but the whole lap dog media still refer to the individual mandate as though it had survived. Perhaps a little formal clarification from the high court will put the matter to rest.

I was disappointed when President Obama unilaterally delayed ObamaCare’s employer mandate; I wanted the law to go into effect, so that Americans could see his unwieldy, unworkable behemoth for what it is. Unlike the government shutdown, which he’s trying to make as painful as he can, Obama is trying to postpone ObamaCare’s pain with his delay of the employer mandate. Obama is buying time; hoping to run out the clock; get past the next election.

In the ongoing dispute over the government shutdown, the budget C.R., and the debt ceiling, conservatives, libertarians, and the Tea Party should stay focused on the long-term: winning in 2014 and 2016. To undo all the damage that Democrats have done to America, we must replace them. ObamaCare is just one of those harms, and the Court might give us relief with Sissel.

One potential pit fall for Sissel is how the case is argued. If the lawyers for PLF make too much of how Justice Roberts “rewrote” the law, it could embarrass the Court. It might be best to tread lightly there. Besides, ObamaCare was a tax bill from the get-go.

There were two big victories in NFIB v. Sebelius for which we should be thankful; it put a limit on the Commerce Clause and the States won big on federalism. One of the things Sissel may accomplish is to lock in those victories. (That is, if Supreme Court decisions still hold sway in “post-constitutional America.”)

Sissel vs. HSS has the potential to be a landmark case. We “right-wingers” all need to get behind it.  The question remaining: Are there enough originalists on the Court to reinstall the Origination Clause?