Is Obamacare still unconst?
24 May '13 15:40Originally posted by MoneyManMikeFrom a conservative legal commentator in the Wall Street Journal:
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 c ...[text shortened]... onald[/i]. Sorry Stevens, the Constitution means what it says!
It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge. For the law contains many other taxes--including a Medicare levy on investment income and excise taxes on such things as medical devices and tanning salons--which Congress knowingly enacted as taxes for the purpose of raising revenue. And Congress did, however unrealistically, foresee a surplus. It's still far from clear that ObamaCare was a "Bill for raising Revenue," since its main purpose was to remake the health insurance market. But these other taxes, not the mandate, provide the strongest argument that it was.
Even if we assume ObamaCare was a "Bill for raising Revenue," there's one further problem. Although it's true that the version of the law that was finally enacted passed the Senate before the House, it was, as Pacific Legal notes in its pleading, styled a "House Resolution." Here's what happened (citations omitted):
In September, 2009, the House unanimously passed H.R. 3590, entitled the "Service Members Home Ownership Tax Act of 2009." The bill would have "amend[ed] the Internal Revenue Code of 1986 to modify first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees"; H.R. 3590 had nothing to do with health insurance reform. In November of that year, the Senate "amended" the House bill by gutting its contents, replacing those contents with health-insurance reforms (including the purchase requirement and associated payment), and renaming the bill the "Patient Protection and Affordable Care Act." The Senate's purported amendment resulted in the Affordable Care Act that became law.
This procedural dodge is known as a "shell bill" and is designed precisely to evade Origination Clause challenges. Pacific Legal notes in a press release that "the Supreme Court has never ruled on whether such a gut and switch ploy is constitutional." But the law at issue in Munoz-Flores was enacted in the same way, and one justice argued in a concurring opinion that that was sufficient to pass constitutional muster under the Origination Clause:
The enrolled bill's indication of its House of origin establishes that fact as officially and authoritatively as it establishes the fact that its recited text was adopted by both Houses. . . . We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote. Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.
That justice was Antonin Scalia, one of the four dissenters in NFIB v. Sebelius. There is every reason to think the Origination Clause will not save us from ObamaCare.
http://online.wsj.com/article/SB10001424127887323901604578159431428593260.html?mod=djemBestOfTheWeb_h
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