JURIST Guest Columnist Dwight Duncan of the University of Massachusetts School of Law discusses the latest challenge to the Affordable Care Act…

In 2012 Chief Justice John Roberts surprised the country with his creative jurisprudence in upholding the constitutionality of the Affordable Care Act (ACA) [PDF]. He joined the four conservative dissenters in NFIB v. Sebelius to find the Act’s individual mandate, which required individuals to either have adequate health insurance or pay a fine, to exceed Congress’s power to regulate commerce among the several states. But then he joined the court’s four liberal justices in holding the fine to actually be a tax and thus to be a constitutional exercise of Congress’s power to “lay and collect taxes.” At the time, the four dissenters noted that “the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.”

Indeed, the Constitution, in what came to be known as the Origination Clause, is explicit about requiring that revenue measures originate in the House of Representatives: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The US Supreme Court has never in its history invalidated an Act of Congress for violating the Origination Clause, which might lead one to think that it is a classic “political question” entrusted by the Constitution to the political branches rather than the courts. The leading court’s case on the subject, however, opined differently. Written by Justice Thurgood Marshall in 1990 in US v. Munoz-Flores, “A law passed in violation of the Origination Clause would … be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would be a law passed in violation of the First Amendment.” That case, however, found that laws that “create[] a particular governmental program and … raise[] revenue to support that program,” are not subject to the Origination Clause. Crucially, the fines paid to the Internal Revenue Service (IRS) under Obamacare are not earmarked for healthcare [PDF] and become general revenue for the federal government.

Matt Sissel, a “self-employed artist and small-business owner” from Washington state, on October 28 filed a petition for certiorari to the US Supreme Court raising this Origination Clause challenge to Obamacare.

The issue is an important and interesting one because, as Sissel argued, the Patient Protection and Affordable Healthcare Act originated in the Senate by gutting a House Bill which “did not increase taxes, levy any new tax, or relate in any way to health insurance,” and entirely substituting it “with the 2,076 pages of what, along with a later ‘reconciliation’ bill, became the PPACA, Pub. Law 111-148, 124 Stat. 119-1025 (2010).”

However compelling the argument on the merits of whether the ACA violates the Origination Clause of Article 7, section 1, though, the court must first decide whether to take up the case on certiorari. Here, there are two problems, realistically speaking. One is that there is no clear and present split in the circuits on this question, as the US Court of Appeals for the Fifth Circuit dismissed this claim for want of standing, and the US Court of Appeals for the DC Circuit’s panel held [PDF] that the overriding purpose of the law was not to raise revenue but rather to provide health insurance. Even though four judges of the DC Circuit, in dissenting from the denial for a rehearing en banc, would have preferred a different rationale for ruling against the challenge, namely that the Senate can amend revenue bills originating in the House, no judge was saying that Obamacare violated the Origination Clause.

The other reason it seems unlikely that the Supreme Court will grant cert has to do with the rule of five. Five votes would be needed in order to prevail on the merits at the US Supreme Court, although four votes would be sufficient to get cert. Given that Roberts has shown not just once but twice that he is willing to engage in creative statutory interpretation to save the Affordable Healthcare Act. He thus prevented a 5-4 court decision on partisan lines (Republican appointees versus Democratic appointees) that would strike down Obama’s signature achievement in office. So it seems unlikely that the four dissenters in NFIB v. Sebelius would want to grant cert only to lose again on the merits. After all, just last term the court, with Roberts writing the majority decision, upheld the granting of subsidies through federal exchanges rather than the state-established exchanges that the law seemed to call for.

On the other hand, the court did just grant certiorari in the seven cases, including Little Sisters of the Poor v. Burwell [PDF], which challenge the adequacy of the accommodation for religious organizations disputing the contraceptive mandate under Obamacare. Those cases are along the lines of Burwell v. Hobby Lobby [PDF], but these cases just nibble around the edges of the Affordable Healthcare Act, and do not put a dagger into its heart, which is what the Origination Clause challenge entails.

Some background of Matt Sissel’s Origination Clause case is an order: his suit was originally brought by the Pacific Legal Foundation in 2010 on Commerce Clause grounds. After the 2012 decision in NFIB v. Sebelius, he amended his complaint to include the Origination Clause claim. The US District Court for the District of Columbia ruled against him [PDF], dismissing the suit both because the ACA was not a “bill to raise revenue,” but rather to expand healthcare insurance, and on the alternative grounds that the Senate’s total substitution of its own bill for the House’s was a constitutionally valid “amendment.” On appeal, the panel of the US Court of Appeals for the DC Circuit affirmed [PDF] the dismissal, relying on the overriding purpose to expand healthcare coverage and not addressing the alternative grounds. On the motion for rehearing en banc, four judges dissented from the denial of rehearing because they preferred the alternative rationale, writing that the panel’s ruling on overriding purpose “sets a constitutional precedent that is too important to let linger and metastasize.” Lyle Denniston, dean of Supreme Court reporters, wrote a superb piece for Scotusblog analyzing the significance of the DC Circuit’s denial of rehearing en banc. We await, then, the Solicitor General’s response to the cert petition due on November 27, 2015.

Only time will tell whether the Supreme Court chooses to hear this case.

Dwight Duncan teaches Constitutional Law, Legal Ethics, Religion and the Law, and Bioethics at University of Massachusetts School of Law. He is also a member of the Washington and DC bars, the Board of Directors of the Pro-Life Legal Defense Fund, and serves on the Board of Advisors of Massachusetts Citizens for Life.

Suggested citation: Dwight Duncan, Obamacare’s Problem with the Origination Clause, JURIST – Academic, Nov. 17, 2015, http://jurist.org/academic/2015/11/Dwight-Duncan-ACA-litigation.php.