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Can the Legislative Roots of Obamacare Overturn the Law?

Harry Reid's trick to gut a House bill and replace it with the ACA could be judged by Supreme Court.

by
Rodrigo Sermeño

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May 31, 2014 - 12:37 am
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WASHINGTON – The legal battle over the Affordable Care Act continues, as a challenge to the healthcare reform law aims to nullify it by arguing that any taxes imposed by the law originated in the wrong place.

Sissel v. United States Department of Health and Human Services was filed in the Washington D.C. District Federal Court – a traditional stepping-stone to the U.S. Supreme Court – by the Pacific Legal Foundation (PLF) on behalf of Matt Sissel, an Iowa artist and small-business owner. Sissel, an Iraq war veteran, does not have or want health insurance, preferring to use the money to invest in his business.

The District Federal Court ruled against Sissel in June 2013. A few weeks later, the PLF appealed the court’s decision to the D.C. Circuit Court of Appeals.

This month, Timothy Sandefur, co-counsel for PLF, argued before a three-judge panel at the D.C. Circuit Court of Appeals that the ACA was not enacted in compliance with constitutional procedures for raising taxes. That means, according to Sandefur, that the entire law was adopted unconstitutionally and should be canceled.

The Origination Clause of the Constitution, Article I, Section 7, requires that legislation to raise revenue must start in the House. This clause was put in to ensure that taxing power remained in the political body more sensitive to public opinion.

In June 2012, Chief Justice John Roberts changed the ACA’s individual mandate into a tax. The Supreme Court ruled in NFIB v. Sebelius that a penalty levied on people who fail to buy insurance under the ACA is a tax because it requires payment to the federal government.

Speaking at a Cato Institute event, Sandefur said it is “crystal clear” that the provision grants the House authority to originate these bills, even though it does not explicitly clarify the difference between amend and originate.

“The one thing we know for certain is the Senate cannot originate these bills. The question in this case is whether the Senate can get around these restrictions by passing an amendment whereby it originates a revenue bill,” Sandefur said.

Senate Majority Leader Harry Reid (D-Nev.) took a six-page bill that had passed the House unanimously on October 2009, and used what is known as a “gut and replace” approach in which he removed every word of the bill’s text, and inserted the 2,074 pages of ACA language.

The newly created bill was then sent back to the House and passed without a single Republican vote.

Last year, District Court Judge Beryl A. Howell rejected Sissel’s claim. Howell wrote in her decision that the Origination Clause challenge failed because the main purpose of Obamacare was not to raise revenue. She also said because the bill did, in fact, originate in the House “it is for Congress, not the courts, to decide whether an amendment is properly germane in any given case.” Even though Justice Roberts declared that the individual mandate was a tax, Howell ruled that the revenue raised by the ACA was “incidental”; therefore, the Origination Clause did not cover the law.

There are only a handful of legal cases on the Origination Clause. In Flint v. Stone Tracy Corp., the Supreme Court said the Senate might amend a House revenue bill as long as the amendment is germane to the subject of the original bill. In U.S. v. Munoz-Flores, the Supreme Court held that courts should strike down laws that violate the clause. In this case, however, the high court decided not to enforce the clause because it was not a bill for raising revenue.

“Although there are few Origination Clause cases on the books, our case falls squarely within the one thing that we know that this clause does not permit,” Sandefur said.

He said that in order for the Senate’s actions to qualify as a genuine amendment to a House-passed revenue bill, it must be “germane” to the subject matter of the bill.

“Unless an amendment is germane to the original thing, it is not an amendment. No original speaker of English would use the word amend to mean completely gut and replace,” Sandefur said.

Top Rated Comments   
LOFO? Or are you a shill? This is apparently the latest blatant disinformation campaign to preserve this centerpiece of Regressive tyranny.

House Resolution 3590 - the "Service Members Home Ownership Act" - is the bill that Reid took the gutting knife to.

Absolutely nothing to do with taxation. Absolutely nothing to do with healthcare (even for service members).
11 weeks ago
11 weeks ago Link To Comment
To summarize, the Woodstock Jihad took a six page "house bill", gutted it and replaced it, passed the gang rape of the Constitution in the dead of night in reconciliation, on a seizure of one sixth of the economy, against the will of the people, to force them to lose their doctors, hospitals and plans they liked...to advance the biggest lie of the year...in order to circumvent representative self-governance and replace it with small c communism.

And our grievance petition of last resort is currently in front of three PARTY hacks who don't give a damn about the law, only about the Party and imposing One World Socialism on the people against their will.

The final, final last gasp of liberty goes before a Supreme Court more than willing to act as the final traitors against freedom. Refusing to uphold the protection of the people from a government intent on destroying those protections. Harry Reid and Nancy Pelosi lead a raid on liberty and slimed the process with every dirty trick, this administration told every lie to cover their intent..and the Supreme Court put on the last handcuffs and shackles of a once free people.

Are we really discussing whether justice is served by upholding the overthrow of free market Constitutional self-governance ...because it was done "legally"?

We ought to be talking about the penalties for treason.
11 weeks ago
11 weeks ago Link To Comment
"The real fix for ObamaCare is to elect Republicans"

No, the real fix for Obamacare is to elect Tea-Party aligned fiscal and constitutional conservatives. Electing RINOs will do no good.

The GOP Establishment has determined not to repeal Obamacare, but to "fix" it. Just the way I expected the RINO Romney to betray us if he were to be elected.

http://www.washingtonpost.com/politics/gop-candidates-show-signs-of-retreat-on-full-obamacare-repeal-as-midterms-approach/2014/05/30/3c175b30-e5ab-11e3-8f90-73e071f3d637_story.html
11 weeks ago
11 weeks ago Link To Comment
All Comments   (23)
All Comments   (23)
Sort: Newest Oldest Top Rated
Why even vote for the GOP at all? Cantor supports amnesty, PA Governor Corbett now supports same-sex marriage -- or at least won't fight it -- McConnell and Boehner support more spending, many in the GOP say we need to "accept" Obamacare or "fix" it, and so on. The only difference between the GOP and the DEMs is that the GOP is for the rich, not the poor. Dems also give to the rich, but at least they make a show of giving something to the poor. It has been said before, but it is true. The two parties are really the same. I am a Tea Partier but I am voting for the Dems this Fall.

Defund the GOP.
11 weeks ago
11 weeks ago Link To Comment
" I am a Tea Partier but I am voting for the Dems this Fall."

Load of crap.

10 weeks ago
10 weeks ago Link To Comment
I'm hoping common sense will prevail and this abomination created via skullduggery and slight of hand will receive its just desserts and be ruled unconstitutional. However, on the SCOTUS we have that master of convoluted legal contrivance, the Honorable (?) John Roberts who managed to convert a horse into a giraffe to justify Obamacare the first time. Will he do it again?
11 weeks ago
11 weeks ago Link To Comment
Well, there's always hope. I suspect that wishing for the Roger's court to revisit the case (allowing the whipping of citizens by the IRS for their failure to pick Blue Cross cotton on the Media Medical Plantation Corporate Complex) is like expecting the Taney Court to revisit their Dred Scott decision and agree with the minority dissent that once a slave is free and has voted (as occurred in five states), he cannot be enslaved again and is, in fact, a citizen of the United States and entitled to keep and bear arms.
11 weeks ago
11 weeks ago Link To Comment
While one can make a theoretical case that the courts should strike down Obamacare based on the clear and specific wording of the Constitution; you encounter one immovable obstacle.

Neither the text of laws, nor the text of the Constitution has any bearing on what the government and Nomenklatura do in real life. There is no consent of the governed, and the velvet glove over the mail gauntlet is wearing thin.

Reality.

If any of those judges or Justices followed the law or Constitution, there would be vacancies on the courts to be filled with more compliant jurists.

Subotai Bahadur
11 weeks ago
11 weeks ago Link To Comment
Given all that the Democrats seek to get away with, and the Republicans petrified of communicating distinctly, I encourage folk to look at the Royalist Tea Party.

It is a registered party, and it has a facebook page, a twitter page and a website.

www.royalistpartyusa.tk

https://www.facebook.com/RoyalistTeaParty

https://twitter.com/RTPUSA

It is time to stop trying to reinvent the wheel.
11 weeks ago
11 weeks ago Link To Comment
No way in hell the courts overturn Obamacare because of the origin clause.

...not because of the merits of the argument, but because the courts, especially with cowards like Roberts on the bench, are cowardly lions, rubber stamping whatever the federal government does.

"When Obamacare reared its ugly head
He bravely turned his tail and fled
Yes, brave Sir Roberts turned about
And gallantly he chickened out
Bravely taking to his feet
He beat a very brave retreat.
Bravest of the braaaave, Sir Roberts!"
11 weeks ago
11 weeks ago Link To Comment
Any doubt that this case will not prevail in the courts owes its origins to the belief that law is a dead letter subject. The whole subject can be boiled down to; who will be the last one with it and what do they want.
11 weeks ago
11 weeks ago Link To Comment
This has been my assertion all along - that ALL tax bills must originate in the House. Apparently Prince Harry feels he can take a pig and skin it out and insert 2000+ pages of ill will and call it O'Care.

It is still a pig - and John Roberts is still a traitor.

That traitor list is getting long...

11 weeks ago
11 weeks ago Link To Comment
To summarize, the Woodstock Jihad took a six page "house bill", gutted it and replaced it, passed the gang rape of the Constitution in the dead of night in reconciliation, on a seizure of one sixth of the economy, against the will of the people, to force them to lose their doctors, hospitals and plans they liked...to advance the biggest lie of the year...in order to circumvent representative self-governance and replace it with small c communism.

And our grievance petition of last resort is currently in front of three PARTY hacks who don't give a damn about the law, only about the Party and imposing One World Socialism on the people against their will.

The final, final last gasp of liberty goes before a Supreme Court more than willing to act as the final traitors against freedom. Refusing to uphold the protection of the people from a government intent on destroying those protections. Harry Reid and Nancy Pelosi lead a raid on liberty and slimed the process with every dirty trick, this administration told every lie to cover their intent..and the Supreme Court put on the last handcuffs and shackles of a once free people.

Are we really discussing whether justice is served by upholding the overthrow of free market Constitutional self-governance ...because it was done "legally"?

We ought to be talking about the penalties for treason.
11 weeks ago
11 weeks ago Link To Comment
The 10th amendement to the US Constitution states 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.

Health care is not delegated to the United States by the Constitution, therefore it is reserved to the states. Why has not anyone brought up this aspect of Obamacare?
11 weeks ago
11 weeks ago Link To Comment
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