Just as the supporters of Obamacare – the IRS, the vast legions of regulatory agency administrators, the health-care industry and politicians – are crowing over another Supreme Court victory, another case is looming that could kill the law entirely.
By using the words of the Supreme Court itself.
In last week’s 6-3 decision, the language of the Affordable Care Act was at issue when the justices ruled against a plain reading of the law, determining that exchanges “established by the state” must include exchanges established by the federal government as well as individual states. Consequently, the court found, subsidies can be issued to residents of states that haven’t set up their own exchange, preserving a key plank of the law.
Now, a case brought by the Pacific Legal Foundation is using the court’s own terminology to argue Obamacare is constitutionally invalid.
The issue is simple: When the Senate adopted its own bill, installed it inside the shell of a separate and unrelated House bill, called it the Affordable Care Act and passed it, it created a long list of “fees” and “penalties” for Americans to pay.
But the John Roberts-led Supreme Court, recognizing the Constitution doesn’t allow the government to force people to buy consumer products, turned the “fees” and “penalties” into “taxes.”
However, the Constitution requires all tax measures be initiated in the House, not the Senate.
The recent decision by the high court upholding subsidies paid through federal exchanges, even though the law itself specified exchanges “established by the state,” actually “changes little about Obamacare,” according to PLF Principal Attorney Timothy Sandefur.
In a statement released after last week’s ruling by the Supreme Court, which earlier affirmed Obamacare’s mandates but then struck down its demand that everyone pay for abortion-causing drugs, Sandefur said, it’s “no surprise that there are major disagreements over the meaning of this law.”
He pointed out a law more than 2,000 pages “was passed without a fair debate, literally in the middle of the night on Christmas Eve in the Senate, by a Congress that didn’t bother reading it before voting.”
“Though defenders of the law desperately want the legal challenges to be over, a more fundamental constitutional challenge has been pending for several years and could reach the Supreme Court next term,” Sandefur said.
“It focuses on the fact that the law was passed in violation of the Constitution’s ‘Origination Clause,’ which requires that any tax law start in the House of Representatives,” he said. “The Supreme Court has ruled that the Individual Mandate ‘penalty’ payment is a tax – yet it started not in the House, but in the Senate.”
He noted PLF’s challenge to Obamacare on Origination Clause grounds, which is pending before the full U.S. Court of Appeals for the D.C. Circuit on a motion for a rehearing of the full court, has received “impressive support” from organizations filing friend-of-the-court briefs.
WND reported earlier on the case when Judge Judith Rogers reasoned for the three-judge panel that if the aim of Obamacare is to force people to buy government-approved health insurance, the hundreds of billions of dollars in tax increases are incidental and allowable.
PLF Principal Attorney Paul J. Beard II said at the time: “The Founders had good reason for vesting the power to launch taxes with the House. They knew the power to tax can be abused, and they wanted to limit that danger by giving the primary authority to the chamber closest to the people.”
See an explanation of the PLF’s arguments:
Beard explained the”loophole” allows all sorts of taxes that “could be given a pass from having to start in the House.”
“After all, many taxes have purposes other than simply to raise revenue. Cigarette taxes, for example, are designed, also, to affect behavior.”
“PLF’s challenge to Obamacare involves fundamental constitutional principles and protections for all taxpayers, and for everyone who is covered by the tax and regulatory burdens of Obamacare,” he said.
“Americans may not be subjected to new taxes by the federal government if those taxes [don’t] start in the House, the chamber closest to the people. That’s the principle underlying our lawsuit, and it’s so basic to our constitutional framework that the case ultimately deserves a judgment by the nation’s highest court.”
The case was filed on behalf of Matt Sissel, a small-business owner who wants to pay medical expenses on his own and has financial, philosophical and constitutional objections to being ordered to purchase a health plan he does not need or want.
His attorneys argue the Constitution requires all tax bills in Congress to begin in the House of Representatives. They charge Senate Majority Leader Harry Reid, D-Nev., manipulated the legislation that eventually gave America Obamacare by taking the bill number for an innocuous veterans housing program that had been approved by the House, pasting it on the front of thousands of pages of Obamacare legislation and voting on it.
The first case to the high court challenging the Obamacare mandate cited the Commerce Clause. But the Supreme Court ruled in 2012 the law was a tax and, therefore, constitutional.
In its second decision regarding Obamacare, the Hobby Lobby case, the Supreme Court ruled the government cannot force company owners to violate their faith by funding abortion-causing drugs in employee insurance plans.
Just last week, the court said the law’s references to exchanges “established by the state” can be read broadly to include virtually every exchange that has been established, even those by the federal government.
That’s even though a key Obama architect specifically said the law was written to punish states that did not set up exchanges by depriving their citizens of subsidies.
“PLF continues to challenge the constitutionality of Obamacare, and others do as well. It’s little wonder that the majority of the American people have never supported Obamacare and still do not support it,” Sandefur said. “But whether the judiciary or Congress acts first, it’s time for genuine reform in health care – reform that prioritizes free markets, puts consumers in charge instead of bureaucrats, and respects the limits of the Constitution.”
Dozens of House members have filed a brief in the case explaining the ban on tax measures starting the Senate was with reason.
“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,” their brief explained.
Another challenge to Obamacare that remains in the works alleges it violates the Fourth, Fifth and Ninth amendment provisions on privacy.
Yet another case is suing the Obama administration for making arbitrary changes – outside of Congress – in the law.