Facing a three-judge panel at the DC Circuit Court of Appeals on May 8, 2014 Pacific Legal Foundation principal attorney Timothy Sandefur argued PLF’s challenge to the Affordable Care Act, Sissel v. U.S. Department of Health and Human Services.
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.” The problem, Sandefur pointed out, is that Obamacare was not enacted in compliance with constitutional procedures for raising taxes. It violated the Origination Clause.
“The original House bill was not a bill for raising revenue,” Sandefur stated in his argument. “It did not levy any taxes. The Senate then transformed that bill into a bill for raising revenue, which the Senate originated, in violation of the Constitution.”
The Origination Clause, 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 only thing we know for absolute certain about the Origination Clause is that the Senate cannot originate revenue-raising measures,” Sandefur said. “Here we have a complete substitution of a six-page bill that was not a bill for raising revenue with a 2,000 bill that was a bill for raising revenue.
On the issue of germaneness, Sandefur said case law is clear that in order for the Senate’s actions to qualify as a genuine “amendment” to a House-passed revenue bill, it must be “germane to the subject matter of the [House] bill.” The Senate scrapped every word of a House bill on veterans housing benefits and inserted more than 2,000 pages of Obamacare.
“Germaneness must be inherent to the word ‘amend.’ Something that is not germane is simply not an amendment. Otherwise the origination Clause would turn into a shell game.” Sandefur concluded.
PLF represents small business owner and decorated veteran Matt Sissel. Sissel could not attend the oral argument. Sandefur told the panel that Sissel is currently serving with his National Guard unit in the Philippines where he is providing relief from the recent devastating typhoon.