JURIST Guest Columnist Glenn C. Smith of the California Western School of Law discusses the latest challenge to the Affordable Care Act…

All petitions to have a lower-court ruling reviewed by the US Supreme Court are long shots.

Still, the recently-filed petition for certiorari in Sissel v. DHHS [PDF] — contending that the Affordable Care Act (ACA) [PDF] violates the Constitution’s Origination Clause, which requires that “[a]ll bills for raising Revenue shall originate in the House of Representatives” — is a longer shot than most. Challengers have twice sought to have the court deal judicial death blows to the act widely known as “Obamacare.” And twice majorities led by Chief Justice John Roberts used generous statutory interpretations to save key provisions and, ultimately, the act as a whole. The message of these decisions and their defer-to-the-political-process rationales seems to be that the court is not interested in “repealing Obamacare” by judicial fiat.

If it didn’t face these formidable barriers (and another difficulty explained below), the Sissel petition could have some attractions for the justices; it raises the kind of separation-of-powers issues they have recently and avidly taken on.

Why Sissel Swims Upstream

Anyone betting that Sissel will be the proverbial salmon swimming upstream against strong odds must account for the court’s recent past rulings on the ACA’s legal validity. Twice before — after lengthy litigation drama and much anticipation — the court decisively signaled that it did not want to be the venue in which Obamacare was in essence repealed.

In the first legal challenge in 2012, Chief Justice Roberts surprised many court watchers — and annoyed many political conservatives &#8212 by leading a five-justice bloc to uphold the ACA’s individual mandate (the controversial requirement for most Americans to obtain minimally adequate health insurance or pay a tax penalty). In NFIB v. Sebelius, Roberts provided the fifth vote to reject the mandate as an unconstitutional extension of Congress’ power to regulate commerce. But the chief justice then reversed course and joined the court’s four more pro-federal-regulation justices to uphold the mandate under the alternative source argued by the administration: Congress’s taxing power. This decision came despite the unwillingness of officials from President Obama on down to call the mandate a “tax.” And it was contrary to what Roberts admitted was the “most natural interpretation of the mandate.” Still, Roberts followed the judicial-restraint doctrine that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

Three years later, Chief Justice Roberts again deferred to elected policymakers and eschewed a literalist reading of another Obamacare provision. This time speaking for six justices, including Justice Kennedy, who had voted to invalidate the individual mandate in 2012, the King v. Burwell majority relied on the importance Congress attached to federal subsidies helping low-income Americans buy health insurance. The majority rejected a literal interpretation of language tying federal subsidies to exchanges “established by the State.” The court legitimated federally run substitute exchanges on which millions of Americans had acquired health coverage. The Roberts majority tied this charitable statutory interpretation, which likely saved the act from large-scale economic dislocations threatening its viability, to the need to “respect the role of the Legislature, and take care not to undo what it has done.”

Thus, the Sissel challenge seems significantly star-crossed, coming as it does after Obamacare was saved not once but twice by ideologically unlikely rescuers emphasizing judicial restraint. Worse, accepting the Sissel claim that the individual mandate is unconstitutional would require the Court to face daunting questions about how much of the rest of the Act must also fall because those provisions are dependent on the mandate. Arguments in 2012 about this “severability” question likely showed the justices just how messy the situation could get.

A final difficulty is that Sissel lacks another key factor often enhancing the chances that the court will accept a dispute for review: conflicts among lower-court judges about who should win the underlying legal dispute. Unlike previous Obamacare challenges, the act’s compatibility with the Origination Clause has not been a lively topic roiling among, and dividing, judges in different federal circuits. The conflict is within the D.C. Circuit.

And what divides the D.C. Circuit judges is not whether the individual-mandate “tax” complies with the Constitution, but why it does. The three-judge D.C. Circuit panel affirming the district court’s dismissal of the Sissel challenge held that the Origination Clause did not apply to the act; its “paramount aim” is to increase health-insurance coverage and to decrease health-care costs, “not to raise revenue by means of” the individual mandate. The four D.C. Circuit judges disagreeing with these colleagues viewed the Origination Clause as applicable but satisfied because the Senate struck the entire text of an unrelated House-passed bill and replaced it with the ACA text.

To convince the court to review the D.C. Circuit’s Sissel decision, then, challengers need to persuade four Supreme Court justices (including one of the six justices who stood with the ACA just a few months ago in Burwell) that the theories of all the D.C. Circuit judges are so dubious that it is again worth considering whether Obamacare should be found constitutionally wanting.

Why Sissel Poses Questions Otherwise of Interest

On the plus side, Sissel appears to pose the kind of separation-of-powers questions the justices increasingly like to sink their teeth into.

In recent years, the court has overcome an earlier era’s shyness about jumping into executive-versus-legislative fights over the meaning of the Constitution’s structural provisions. Last term the court refereed [PDF] a dispute over whether Congress could constrain the president’s foreign-relations and government-recognition powers by creating an option for US passports and other official documents to refer to Jerusalem as part of Israel, despite longstanding executive-branch insistence that the United States does not recognize any country’s sovereignty over Jerusalem. And the year earlier, in NLRB v. Canning [PDF], the justices devoted 62 pages in the Supreme Court Reporter to a pitched battle over the scope of the president’s power to make time-limited “recess appointments” when the Senate is not in session.

The argument array in Sissel is especially reminiscent of the architecture of the Canning dispute. Canning posed a variety of contested questions about the meaning of the relevant constitutional text and just what the framers sought to achieve by including it in the brief constitutional provisions governing governmental appointments. The different sides in Canning also put forth plausible, yet different, characterizations about the proper way to read precedent cases and the significance of post-adoption understandings by the political branches.

The argumentative byplay among the Sissel judges shows similar patterns of disagreement. First, there are starkly different characterizations about what the framers intended “Bills … for raising Revenue” to include. As noted above, the initial three-judge panel viewed the language as limited to bills whose “primary” purpose is revenue raising; the panel members viewed the successive narrowing of the Clause as it wended its way through Constitutional Convention deliberations as supporting this limited scope.

By contrast, the disputing D.C. Circuit judges read the framers as viewing the Origination Clause as “an integral part” of a plan “for protecting the people from excessive federal taxation.” Accordingly, the dissenters would apply the Origination Clause to any taxation provisions “that raise revenues paid into the general treasury,” whatever the underlying purpose of the legislation.

Another similarity to the 2014 Canning dispute is that the judicial dustup in Sissel reflects marked disagreement about the proper way to read relevant Supreme Court decisions. In the precedents under dispute, the only modern one of which is United States v. Munoz-Flores, the court consistently rejected challenges based on the Origination Clause. But why the court did so is debatable. Plausible arguments exist for reading the precedents narrowly or broadly. Finally, there is a similar non-meeting of circuit-judge minds on what significance to afford to how Congress has in practice applied the Origination Clause.

Never Say Never?

Veteran court watchers know that decisions about which cases to take occasionally can be quite unexpected. Cases that don’t seem likely to attract court review do, and vice versa.

So, will the attractiveness of the separation-of-powers substance embedded in the Sissel challenge overcome the strong hydraulic pressure of the two previous Supreme Court saves of the ACA? Or, in a related variant of the question, is Justice Kennedy’s enmity for the individual mandate so strong that it will overcome his seeming coming-to-terms with Obamacare in light of the passage of time and the public reliance on it? If so, Kennedy could be the fourth vote to grant certiorari.

It will be interesting — not to mention critically important to health-care policy and core judicial-role questions! — to see how these crosscurrents play out.

Glenn C. Smith is a professor of Constitutional Law at California Western School of Law in San Diego. He is the co-author of CONSTITUTIONAL LAW FOR DUMMIES, a Dummies™-brand guide for law students, legal practitioners and interested laypersons.

Suggested citation: Glenn C. Smith, ACA Challengers Think Third Time’s A Charm, JURIST – Academic Commentary, November 28, 2015, http://jurist.org/forum/2015/11/glenn-smith-aca-challengers.php.