The fact that Sen. Harry Reid, D-Nev., manipulated the legislation that eventually gave America Obamacare means that the entire law was adopted unconstitutionally and should be canceled, including its $800 billion in taxes, a federal appeals court is being told.
The case, brought by the Pacific Legal Foundation, is based on the Constitution's Origination Clause, which requires all tax-raising bills to begin in the U.S. House.
But Obamacare was written in the Senate. Reid simply took an innocuous House bill that already had House approval – which helped veterans get housing – gutted it and replaced its contents with Obamacare.
On Thursday, the U.S. Circuit Court of Appeals for the D.C. Circuit will hear oral arguments on the challenge that would cancel not just an Obamacare mandate or fee, but the entire law.
The case, Sissel v. U.S. Department of Health & Human Services, focuses on the individual mandate requiring Americans to buy an insurance plan or pay a penalty.
When Supreme Court Chief Justice John Roberts cast the deciding vote in 2012 that affirmed Obamacare against a Commerce Clause challenge, the justices labeled the mandate a "tax" to avoid violating the Constitution.
The ruling means more than a dozen provisions in Obamacare are imposing more than $800 billion in new taxes.
The individual mandate alone amounts to a $54 billion tax on individuals over 10 years and $113 billion on business," Pacific Justice said.
"Yet Obamacare was not enacted in compliance with constitutional procedures for raising taxes."
The organization points out that Article I, Section 7, requires that legislation to raise revenue must start in the House in order to keep the taxing power close to the people.
"This lawsuit is not just about protecting Americans from Obamacare's heavy burden of regulations and their threat to the economy and our health care system," said PLF's Timothy Sandefur. "Fundamentally, we're defending the rights of taxpayers – and holding Congress and the president accountable to the Constitution and the rules it sets for enacting new taxes."
The district court's June 2013 ruling in the case left a stunning precedent. The court ruled that the individual mandate tax could be arbitrarily exempted from the Origination Clause requirement "on the grounds that the mandate is intended to prod people to buy health plans."
"There is no precedent for setting aside the Constitution's procedural requirements for new taxes merely because a tax influences conduct," said PLF principal attorney Paul J. Beard II. "As the Supreme Court noted in its 2012 Obamacare ruling, every tax has a regulatory purpose. The district court's doctrine would carve a gaping loophole in the Origination Clause – essentially repealing it through judicial exceptions."
The plaintiff, Matt Sissel, is a small business owner who chooses to pay medical expenses on his own, holding financial, philosophical and constitutional objections to being ordered to purchase a health plan he does not need or want.
"I'm in this case to defend freedom and the Constitution," Sissel said. "I strongly believe that I should be free – and all Americans should be free – to decide how to provide for our medical needs, and not be forced to purchase a federally dictated health plan. I'm very concerned about Congress ignoring the constitutional roadmap for enacting taxes, because those procedures are there for a purpose – to protect our freedom."
In a video about the case, PLF attorney Todd Gaziano said the dispute isn't complicated: The Senate violated the Constitution in its work on Obamacare, and so the law should be abandoned.
Conservative commentator George Will wrote recently about the case under the headline "Obamacare's doom."
In June 2012, a Supreme Court majority accepted a, shall we say, creative reading of the ACA by Chief Justice John Roberts. The court held that the penalty, which the ACA repeatedly calls a penalty, is really just a tax on the activity – actually, the nonactivity – of not purchasing insurance. The individual mandate is not, the court held, a command but merely the definition of a condition that can be taxed. The tax is mild enough to be semi-voluntary; individuals are free to choose whether or not to commit the inactivity that triggers the tax.
The "exaction" – Roberts's word – "looks," he laconically said, "like a tax in many respects." It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.
Did it, however, originate in the House? Of course not.
He argued that the Senate has every right to amend a House bill, but regarding whether a change actually is an "amendment," the case law establishes that the issue must be "germane to the subject matter of the [House] bill."
"The ACA's defenders say its tax is somehow not quite a tax because it is not primarily for raising revenue but for encouraging certain behavior (buying insurance). But the origination clause, a judicially enforceable limit on the taxing power, would be effectively erased from the Constitution if any tax with any regulatory – behavior-changing – purpose or effect were exempt…"
His opinion on the matter was clear.
"Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the Origination Clause."
Earlier, dozens of members of the U.S. House of Representatives signed onto the case, claiming the Senate didn't have the authority to pass the bill.
They argued taxes only can originate with the House, the representatives closest to the American people.
That requirement is so important, according to the members of Congress, that the Constitution never would have been adopted without it.
According to a brief dozens of House members have filed in the case, the principle "behind the Origination Clause – sometimes phrased as 'No Taxation Without Representation' – was the moral justification for our War of Independence."
"With this war for freedom and liberty in mind, the Origination Clause of our Constitution was written; and without it at the core of the 'Great Compromise of 1787,' the 13 original states would never have agreed to ratify the Constitution," the brief states.
"The primary dividing issue between the delegates to the Constitutional Convention of 1787 was the question of how to resolve the method of representation in the upper chamber. The small states preferred to retain the equal representation they had enjoyed under the Articles of Confederation, while the large states wanted to shift the national legislature to a proportional representation of the American population. No disagreement threatened the success of the convention and the new Constitution more than this one. After a month of heated debate and threats of secession, the delegates finally agreed to the Great Compromise of 1787; a bicameral legislature with equal representation of states in the upper branch, and proportional representation of the nation in the lower branch. That Great Compromise was only made possible by agreement of both sides to restrict the upper branch from originating money bills."
It continues: "The power of the purse was unquestionably reposed in the People's House, and it has remained in that chamber throughout our history. If the Senate can introduce the largest tax increase in American history by simply peeling off the House number from a six-page unrelated bill which does not raise taxes and pasting it on the 'Senate Health Care Bill' and then claim with a straight face that the resulting bill originated in the House, in explicit contravention of the supreme law of the land, then the American 'rule of law' has become no rule at all."
The brief was filed by attorneys representing Reps. Trent Franks, Michele Bachmann, Joe Barton, Kerry L. Bentivolio, Marsha Blackburn, Jim Bridenstine, Mo Brooks, K. Michael Conaway, Steve Chabot, Jeff Duncan, John J. Duncan, Jr., John Fleming, Bob Gibbs, Louie Gohmert, Andy Harris, Tim Huelskamp, Walter B. Jones, Jr., Steve King, Doug Lamborn, Doug LaMalfa, Bob Latta, Thomas Massie, Mark Meadows, Randy Neugebauer, Steve Pearce, Robert Pittenger, Trey Radel, David P. Roe, Todd Rokita, Matt Salmon, Mark Sanford, David Schweikert, Marlin A. Stutzman, Lee Terry, Tim Walberg, Randy K. Weber, Sr., Brad R. Wenstrup, Lynn A. Westmoreland, Rob Wittman and Ted S. Yoho.
Their argument noted that at the 1787 convention, George Mason explained why the Senate was not allowed to raise taxes.
"The Senate did not represent the people, but the states in their political character. It was improper therefore that it should tax the people … Again, the Senate is not like the H. of Representatives chosen frequently and obliged to return frequently among the people. They are chosen by the Sts for 6 years, will probably settle themselves at the seat of Govt. will pursue schemes for their aggrandizement – will be able by weary[ing] out the H. of Reps. and taking advantage of their impatience at the close of a long session, to extort measures for that purpose."
U.S. senators originally were selected by state legislatures, not a direct vote of the people. The law was changed by the 17th Amendment in 1913.
Beard explains the significance: