May 10, 2014

ANOTHER PROVISION OF THE “LOST CONSTITUTION”: Video of the Cato Institute panel on the Origination Clause challenge to the Obamacare individual mandate. The speakers provide an excellent exposition of the issues raised by this challenge to Obamacare, which is based on the fact that Article I, Section 7, Clause 1 provides:

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.

And yet, we all know that it was the Senate who wrote and first passed the Affordable Care Act. The government claims the ACA to have been a Senate “amendment” to a House tax measure that struck every single word of the House bill, including the title, retaining only the House bill number. Is this an “amendment”? If so, then the Clause has lost all constitutional function and, like other clauses, is now “lost.”

Nevertheless, while the Origination Clause argument has the virtue of being valid — which is where all constitutional analysis should start — the composition of the panel in the DC Circuit makes this litigation an uphill fight. Reportedly, Tim Sandefur‘s excellent oral argument last week was met with skepticism by the judges.