Today, we filed this brief in the federal district court in Washington, D.C., asking the court to hear Matt Sissel’s challenge to Patient Protection and Affordable Care Act. As you’ll recall, we argue that if Obamacare’s requirement that everyone buy health insurance is really just a “tax,” as the Supreme Court said in the NFIB decision in June, then it’s an unconstitutional tax because it originated in the Senate instead of the House of Representatives as the Constitution requires. Through a procedure sometimes called “gut and amend,” the Senate replaced the entire text of an unrelated bill that had passed the House with the text that became the PPACA.
The government has asked the court to throw out our case on the grounds that the NFIB decision upheld the Individual Mandate in its entirety. They also argue that the “tax” is constitutional because the Senate “amended” the House bill, which the Constitution allows. Finally, they argue that the “tax” may be a tax—but it’s not a “bill for raising revenue,” as the Constitution has it.
That’s actually not such a strange argument as it may sound—the courts have distinguished between different kinds of “taxes,” holding that some are “bills for raising revenue” subject to the Origination Clause, and some are not. But in the brief we filed today, we argue that this distinction doesn’t save the PPACA, because in the previous cases, courts have held that a “tax” is not a “bill for raising revenue” only where that tax is really just a penalty or a fine used to enforce compliance with some other constitutionally valid law. Yet according to the NFIB decision, the financial assessment for not having insurance is not a penalty. The majority in that case explicitly denied that the tax assessment for not having insurance is a “penalty,” and ruled instead that the exaction is only a tax. And since it’s only a tax, then it must be a “bill for raising revenue” subject to the Origination Clause.
We also point out that the “gut and amend” procedure has never before been allowed to overcome the constitutional requirement that tax bills originate in the House. On the contrary, courts have always held that while the Senate can amend bills to add taxes, they can only do so when the original House bill was itself a “bill for raising revenue”—and where the Senate amendment is “germane” to the original bill. Here, that also doesn’t help the government—the Senate amendment that created the PPACA was not “germane” in any way to the original bill.
Finally, we’ve asked the court to clarify whether Chief Justice Roberts’ statements about the Commerce Clause are binding law or just dicta. That’s an important question, and one we believe the court must answer in this case. After all, if the NFIB decision does not actually hold that Congress is barred from compelling people buy things, then the trial judge could ignore all of our tax arguments and uphold the Individual Mandate as a valid exercise of Congress’ Commerce Clause powers.