Many feared ObamaCare was written in stone after Justice Roberts construed the individual mandate to be a “tax” allowable under the Constitution. According to attorney Andrew L. Schlafly, however, that Supreme Court decision merely opened the door to the behemoth legislation’s true coup de grace.
Schlafly is the attorney on behalf of Texas businessman Steven Hotze, who has filed suit against Kathleen Sebelius, Secretary of Health and Human Services, and Jacob Kew, Secretary of the Treasury. Read the lawsuit here.
The suit hinges upon what could prove to be a crucial technicality, citing the “Origination clause” of the Constitution (Article 1, Section 7, Clause 1). That clause reads: “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.”
Now, many people at the time immediately pointed out that ObamaCare actually originated in the Senate, not the House. And since the bill raises revenue, it should thus be unconstitutional on this point. But those guys in the Senate were not stupid; they knew this already. To nip this problem in the bud, they thought, they took up a previously-passed House bill, “amended” it with all 2,000-plus pages of ObamaCare, and renamed it the Affordable Care Act. Thus, technically, ObamaCare originated in the House, and was amended by the Senate, per the Constitution.
Schalfly argues for Hotze that this is not quite the case. The real technicality at issue is that the House bill which the Senate amended was not itself a bill for “raising Revenue.” The original bill was called “Service Members Home Ownership Tax Act of 2009” (SMHOTA), and according to the complaint, it “was not a revenue-raising bill, and none of SMHOTA’s six sections raised revenue within the meaning of the Origination Clause. . . .”
It further concludes, “As amended in the Senate, ACA [Affordable Care Act, a.k.a. ObamaCare] is a revenue-raising bill that did not originate with a revenue-raising bill in the House, and thus ACA violates the Origination Clause of the U.S. Constitution.” It is thus unconstitutional.
Now, your author was among those dismissing the Origination Clause argument from the beginning, as I saw the Senate had pulled the sneaky trick of amending an existing House bill to satisfy that requirement. But I would be happy to be proven wrong on this count, and I think that if anything can do so, it will have to be this particular argument.
And there already is a distinction being held among the general public. For example, even the Wikipedia article (as of today, December 2, 2013) calls SMHOTA as “revenue-related modification” bill, not a “revenue raising” bill. That may sound like a fine hair to split, but if words have meaning, this hair is a crucial one to split.
So to be clear, the question at the heart of this will be: Does “revenue-related,” or something similar to that, mean the same thing as “revenue raising.” If not, then words don’t have much meaning.
But if so, then the court will have to decide: Is a revenue-related bill (that does not specifically “raise” revenue) enough to satisfy the Constitutional requirement of “raising revenue.”
If so, then the origination clause will have been greatly compromised by the Court. It will mean that the Senate can at any time pick up any House bill even remotely related to the tax code, and amend it with new taxes of their own origination. This would effectively gut the Origination Clause of its purpose.
But if the court upholds the distinction, and applies it to the Constitutional clause, then ObamaCare will be struck down.
And conservatives will party like it’s 2009 all over again.