Almost a year ago, the US Supreme Court upheld Obamacare's Individual Mandate as a valid exercise of Congress's taxing power. NFIB v. Sebelius
. The Supreme Court's holding, however, has raised a new question. Because the Individual Mandate is a tax, did Congress follow the necessary Constitutional procedures required before certain tax bills can become law? Plaintiffs are saying no arguing that Congress violated the Origination Clause when it enacted Obamacare. The Origination Clause states:
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.
US Const. Art. I, Sec. 7
The plaintiffs argue that Obamacare is a bill for raising revenue because of NFIB
's holding that the Individual Mandate is a tax. Assuming that they are right, the next question is whether Obamacare originated in the House.
The Service Members Ownership Tax Act, the bill that eventually became Obamacare, was first passed in the House. The Senate, however, completely gutted the Service Members Ownership Tax Act and replaced the text with Obamacare. The plaintiffs argue that Obamacare didn't originate in the House because of the Senate's switch-a-roo maneuver. Since Obamacare didn't originate in the House, plaintiffs argue it is unconstitutional.
Of course, the government is going to argue that Obamacare originated in the House and the good ole' fashion switch-a-roo tactic is completely constitutional. But even if Obamacare originated in the Senate, the government will argue that the Origination Clause isn't violated because Obamacare isn't a "bill for raising revenue," a la its not a tax part III
Let's say the plaintiffs are right, can Obamacare really be invalidated for a technicality? That seems retarded, in the parlance of our times
. The Supreme Court says yes, Congress must comply with the Origination Clause:
Although Justice STEVENS agrees with the Solicitor General that this Court should not entertain Origination Clause challenges, he relies on a novel theory that the Government does not advance. He notes that the Constitution is silent as to the consequences of a violation of the Origination Clause, but that it provides by implication that any bill that passes both Houses and is signed by the President becomes a law. See Art. I, § 7, cl. 2; post at 495 U. S. 401-403, and n. 1. From this, Justice STEVENS infers the proposition that "some bills may become law even if they are improperly originated." Post at 495 U. S. 403.
We cannot agree with Justice STEVENS' approach. The better reading of § 7 gives effect to all of its clauses in determining what procedures the legislative and executive branches must follow to enact a law. In the case of "Bills for raising Revenue," § 7 requires that they originate in the House before they can be properly passed by the two Houses and presented to the President. The Origination Clause is no less a requirement than the rest of the section because "it does not specify what consequences follow from an improper origination," post at 495 U. S. 402. None of the Constitution's commands explicitly sets out a remedy for its violation. Nevertheless, the principle that the courts will strike down a law when Congress has passed it in violation of such a command has been well settled for almost two centuries. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 176-180 (1803). That principle applies whether or not the constitutional provision expressly describes the effects that follow from its violation.
Even were we to accept Justice STEVENS' contrary view -- that § 7 provides that a bill becomes a "law" even if it is improperly originated -- we would not agree with his conclusion that no remedy is available for a violation of the Origination Clause. Rather, the logical consequence of his view is that the Origination Clause would most appropriately be treated as a constitutional requirement separate from the provisions of § 7 that govern when a bill becomes a "law." Of course, saying that a bill becomes a "law" within the meaning of the second clause does not answer the question whether that "law" is constitutional. To survive this Court's scrutiny, the "law" must comply with all relevant constitutional limits. 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.
United States v. Munoz-Flores, 495 U.S. 385, 396-397 (1990)
^ As a side note, Stevens also tried to gut
the Second Amendment in Heller
. Sorry Stevens, the Constitution means what it says!