Issues and Cases

Tax-raising Affordable Care Act started in wrong house of Congress

Sissel v. United States Department of Health & Human Services

Contact: Timothy Sandefur

: Petition for writ of certiorari was filed with the U.S. Supreme Court on October 26, 2015. The U.S. Supreme Court denied the petition on January 19, 2016.

Pacific Legal Foundation has launched a new constitutional cause of action against the federal Affordable Care Act (Obamacare). The ACA imposes a charge on Americans who fail to buy health insurance — a charge that the U.S. Supreme Court recently characterized as a federal tax. PLF’s amended complaint alleges that this purported tax is illegal because it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause for new revenue-raising bills (Article I, Section 7).

The Origination Clause argument is part of an amended complaint filed in PLF’s existing lawsuit against the ACA, Sissel v. U.S. Department of Health & Human Services, pending before Judge Beryl A. Howell, in the U.S. District Court for the District of Columbia.

PLF’s Sissel lawsuit was on hold while the U.S. Supreme Court considered the challenge to the ACA from the National Federation of Independent Business (NFIB) and 26 states, in NFIB v. Sebelius. As initially filed, PLF’s Sissel lawsuit targeted the ACA’s individual mandate to buy health insurance as a violation of the Constitution’s Commerce Clause (Article I, Section 8).

The Supreme Court agreed with this position, in the NFIB ruling

However, Chief Justice John Roberts, joined by four justices, characterized the ACA’s charge as a federal “tax,” because it requires a payment to the federal government from people who decide not to buy health insurance.

That holding prompted PLF’s new cause of action. “If the charge for not buying insurance is seen as a federal tax, then a new question must be asked,” said PLF Principal Attorney Paul J. Beard II. “When lawmakers passed the ACA, with all of its taxes, did they follow the Constitution’s procedures for revenue increases? The Supreme Court wasn’t asked and didn’t address this question in the NFIB case. The question of whether the Constitution was obeyed needs to be litigated, and PLF is determined to see this important issue all the way through the courts.”


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