Jonathan Adler has an interesting article in National Review Online on the various lawsuits against Obamacare that currently are pending before courts across the country, including PLF’s own challenge.
We argue that the Obamacare tax—as the U.S. Supreme Court characterized the penalty enforcing the mandate to purchase health insurance—violates the Origination Clause of the Constitution. That Clause requires all revenue-raising bills—like Obamacare—to originate in the House, not the Senate. In this case, the Senate took a totally unrelated House bill concerning tax credits for veteran homeowners, renamed it the “Patient Protection and Affordable Care Act,” and simply substituted the Obamacare legislation for the contents in the House bill. Obamacare, and its centerpiece tax, unconstitutionally originated in the Senate, not the House.
Adler agrees that our challenge “has merit,” but predicts that the Senate’s “subterfuge is likely to survive judicial review” because courts are “quite reluctant to second-guess whether Congress has followed relevant procedural rules.” We’re more optimistic.
The Supreme Court has on a number of occasions seriously scrutinized Congress’s compliance with the Origination Clause. While in those cases, the Supreme Court ultimately upheld the challenged laws, the nature and extent of the Senate’s usurpation of the House’s prerogative to originate tax bills in this case are unprecedented. For a detailed discussion of the legal theory of our tax claim—with citation to the relevant case law—you can read our Legal Backgrounder on the case.