D.C. Circuit orders Feds to respond to Obamacare rehearing petition

On Monday, we filed a petition for rehearing en banc in Sissel v. U.S. Department of Health & Services, asking the entire D.C. Circuit Court of Appeals to hear our challenge to the Affordable Care Act.  Today, “upon consideration of the petition for rehearing en banc,” the Court on its own motion ordered the Federal Government to file a response to our petition within 15 days.  An order calling for a response to a rehearing petition is rare and, at the very least, means that some members of the Court are taking the petition seriously.

And they should.

The decision of the three-judge panel that dismissed our case raises serious constitutional questions concerning one of the most significant pieces of federal legislation in the last 50 years.

First, the decision mistakenly conflates the individual mandate to buy health insurance and the penalty imposed on those who don’t—and upholds both provisions under Congress’s power under the Constitution to levy taxes.  But we know from National Federation of Independent Business v. Sebelius, that a majority of Supreme Court Justices found that the individual mandate exceeds Congress’s Commerce Clause power (because the Feds cannot force individuals into commerce to buy a product or service).  We also know that a majority of Justices found the second provision (imposing a penalty) to be a “tax” authorized by Congress’s taxing power.  The D.C. Circuit Court panel effectively refused to give any legal effect to the NFIB Court’s Commerce Clause holding.  Given the NFIB decision, Sissel is entitled to judgment in his favor on his Commerce Clause claim.

After NFIB redefined the penalty as a tax, Sissel amended his complaint to allege a second claim: The Act — with all of its taxes, including the tax for not purchasing health insurance — is a revenue-raising bill.  The Origination Clause of the Constitution requires all revenue-raising bills to originate in the House, not the Senate.  The Act and all of its taxes originated in the Senate, in violation of that important Clause.

The D.C. Circuit panel rejected Sissel’s Origination Clause claim.  While recognizing that the tax raises billions in revenues that are collected by the IRS and go into the Treasury for general government operations, the court held that the tax is not a bill for raising revenue, because its “primary purpose” is to coerce people into buying health insurance.  One problem with the panel’s ruling is that it mints a new test that no court ever has endorsed.  Neither the Origination Clause nor any Supreme Court precedent ever has required courts to look into legislative intent and purposes in order to determine whether a tax is subject to the Origination Clause.  The panel’s “primary purpose” analysis conflicts with the Clause’s text and history, and with Supreme Court precedents that have held that, so long as a bill “raises revenue to support Government generally”—as the Act and its taxes do—it is subject to Origination Clause challenge.

In sum, the panel decision creates conflicts on significant constitutional questions surrounding a statute that touches the lives of every American.  In light of this, we hope the D.C. Circuit Court of Appeals will decide to rehear our challenge.