PLF will ask High Court to hear “Origination Clause” challenge to Obamacare
Washington, DC; August 7, 2015: Pacific Legal Foundation (PLF) today pledged to file a petition for certiorari with the U.S. Supreme Court in PLF’s constitutional challenge to the Affordable Care Act (ACA) — i.e., Obamacare. PLF’s challenge is based on the fact that Obamacare’s individual mandate “tax” started in the Senate, not in the House of Representatives, as required by the Constitution’s “Origination Clause” (Article 1, Section 7). After an adverse ruling from a three-judge panel of the D.C. Circuit Court of Appeals, PLF sought en banc review by the full appellate court, and the court today declined that request over the dissents of four judges.
PLF Principal Attorney Timothy Sandefur issued this statement today:
“Because of the important constitutional issues that our lawsuit deals with, it has always been clear that this case would ultimately have to be appealed to the U.S. Supreme Court,” said PLF Principal Attorney Timothy Sandefur. “Therefore, PLF begins work today on a petition for certiorari to the U.S. Supreme Court, and we will be filing it at an appropriate point in the near future. Our appeal to the nation’s highest court will give the justices an opportunity to affirm the fundamental constitutional protections that underlie our lawsuit.
“PLF’s challenge is about more than Obamacare and the onerous costs that it imposes on Americans,” said Sandefur. “Our lawsuit is about the constitutional safeguards and guidelines that must apply to all revenueraising measures passed by Congress. The Constitution says the people who must pay federal taxes must have a say in their enactment. It gives average Americans a voice by requiring that all new taxes must start in the chamber closest to the people — the House of Representatives.
“That did not happen with Obamacare,” Sandefur continued. “Even though the Supreme Court has identified Obamacare’s core provision — the individual mandate — as a tax, the law started life in the Senate, through a procedural gimmick. We will ask the Supreme Court to uphold the Constitution’s taxpayer protections by striking down the individual mandate — and the rest of Obamacare — for violating those protections so flagrantly.”
Obamacare raises taxes massively — and unconstitutionally
PLF’s lawsuit focuses on Obamacare’s individual mandate, which requires Americans to buy a federally prescribed insurance plan or pay a fee. In its 2012 ruling that upheld Obamacare against a Commerce Clause challenge, the U.S. Supreme Court labeled the individual mandate as a “tax.” Indeed, according to Congress’s Joint Committee on Taxation (JCT), more than a dozen revenue-related planks in Obamacare — including the individual mandate — collectively will impose more than $800 billion in new levies. The individual mandate alone amounts to a $54 billion tax on individuals over ten years, and $113 billion on businesses, according to the JCT.
Yet Obamacare was not enacted in compliance with constitutional procedures for raising taxes. 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. But Obamacare began in the Senate. Majority Leader Harry Reid took an unrelated House bill (a measure to help veterans buy homes, which raised no revenue), gutted it, and inserted the language of Obamacare.
The D.C. Circuit invented a new test that eviscerates the Origination Clause
In rejecting PLF’s challenge to the individual-mandate tax, the appellate panel announced a new and dangerous test for applying the Origination Clause. It held that courts can decide what the main object or aim of a revenue-raising measure is, and if the judge thinks that it was not essentially meant to raise money, the court can excuse Congress from the constitutional rules.
In today’s decision, four judges, led by Judge Brett Kavanaugh, objected to that decision, and urged the whole D.C. Circuit to review the case. The opinion, he said, “incorrectly read[s] the Supreme Court precedents on the Origination Clause,” and creates “a giant new exemption from the Origination Clause, even for obviously revenue-raising bills such as the Affordable Care Act, which raises $473 billion in revenue.” The opinion “degrades the House’s origination authority in a way contrary to the Constitution’s text and history.” Most importantly, the opinion threatens freedom: “The Origination Clause was one of the many finely tuned mechanisms the Framers adopted to separate power within the new national government,” write the four dissenters, “so as to avoid the dangers of concentrated power and thereby protect individual liberty.”
Sandefur agreed. “This isn’t a liberal-conservative thing,” he said. “The idea that the power to tax should be in the hands of the most democratic branch of the federal government, the House, is essential to our Constitution. The leading precedent on the importance of this constitutional rule was written by Justice Thurgood Marshall. He recognized that the power to tax is dangerous and legal trickery should not be used to evade the Origination Clause. The decision here allows courts to pick and choose whether they will uphold the Origination Clause and the protections it embodies. When an appellate court weakens a core constitutional provision so dramatically, the need is all the greater for the U.S. Supreme Court to step in.”
Plaintiff Matt Sissel: a small business owner who loves liberty
Matt Sissel, the plaintiff in this constitutional challenge to Obamacare, is a small business owner who chooses to pay medical expenses on his own. He objects on financial, philosophical, and constitutional grounds to being ordered to purchase a health plan he does not need or want.
A self-employed artist, Matt spent two years in Iraq as a combat medic with the Iowa Army National Guard. During his second year he also helped train and advise the Iraqi military. He received the Bronze Star for his service.
The case is Sissel v. U.S. Department of Health & Human Services. PLF’s briefs, a litigation backgrounder, video, and a podcast may be found at PLF’s website: www.pacificlegal.org.
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is a watchdog organization that litigates for limited government, property rights, individual rights, and free enterprise, in courts nationwide. PLF represents Matt Sissel, as with the clients in all of our cases, without charging attorneys’ fees.