Originally posted by no1marauder
From a conservative legal commentator in the Wall Street Journal:
It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge...
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 ...[text shortened]... .wsj.com/article/SB10001424127887323901604578159431428593260.html?mod=djemBestOfTheWeb_h[/b]
Although it is true that Scalia argued that origination questions are non-justiciable in his
Munoz-Flores concurrence, Scalia has always been amenable to using legal doctrines that he disagrees with after the door has been opened. For example, Scalia disagrees with Substantive Due Process, yet he used it to apply the Second Amendment to the states:
Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U.S. 266, 275, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.
McDonald v. Chicago, (Scalia, J., concurring).
By all indications, Scalia is open to an Origination Clause challenge. The Joint Dissent in
NFIB, which Scalia was a part of, hinted that the Majority's ruling that the minimum coverage provision is a tax opened the door to a Origination Clause challenge:
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
...
The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
NFIB v. Sebelius, (Joint Dissent).
If Scalia had stayed true to his concurrence in
Munoz-Flores, he would have
closed his eyes to the text of the Affordable Health Care for America Act,
H. R. 3962, 111th Cong., 1st Sess., §501 (2009); the America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301; and the Patient Protection and Affordable Care Act,
H. R. 3590. But the Joint Dissent plainly looked at the text of those acts. Stated differently, under Scalia's reasoning in
Munoz-Flores, the Joint Dissent should have stopped at the enrolled bill's indication of its House of origin: the
H. R. It didn't. Because Scalia didn't write a separate dissent objecting to the Origination Clause reasoning of the Joint Dissent, the logical conclusion is that Scalia is amenable to an Origination Clause challenge using the door that was opened in
Munoz-Flores that origination issues are in fact justiciable.
Is Obamacare still unconst?
31 May '13 15:53
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