The U.S. Supreme Court's opinion in NFIB v. Sebelius wasn't the last challenge to the Affordable Care Act (aka "Obamacare"); oh, no, not by a long shot. As you'll recall, Chief Justice John Roberts decided that, while the ACA's individual mandate and accompanying penalty wasn't a valid exercise of Congress' Commerce Clause authority, it was permissible as a tax.
Enter Timothy Sandefur, who represented the petitioner in Sissel v. U.S. Dept. of Health and Human Services. He made the too-clever-by-half contention that, if the ACA is a tax, then it should have originated in the House of Representatives, as the Constitution requires of all spending bills. Because it originated in the Senate, the law is unconstitutional.
Nice try, but the D.C. Circuit Court of Appeals wasn't having it.
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But I Don't Wanna!
Petitioner Matt Sissel is perfectly capable of purchasing health insurance, but he "does not have, need, or want health insurance." He claims that he's able to pay out of pocket for all of his medical expenses. Good for him.
For some reason, his first argument out of the gate was that Obamacare's mandate and penalty were impermissible under the Commerce Clause. I say "for some reason" because the Supreme Court already said that it wasn't valid under the Commerce Clause. The scope of Congress' tax-and-spend power isn't co-extensive with its Commerce Clause power (and is, in fact, much broader), so something can be impermissible under the latter, but not the former. The D.C. Circuit Court dismissed this in a trice.
The Origination Clause
The real meat of this opinion lies in the contention that the ACA is unconstitutional because it didn't originate in the House of Representatives. The Constitution mandates that "[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." Sissel argued that the ACA was a bill for raising revenue because it had the effect of raising revenue.
This interpretation, however, rested on a conflation of bills intended to raise revenue and bills that have the incidental effect of raising revenue, the D.C. Circuit said. "In interpreting the Origination Clause, the Supreme Court has held from the early days of this Nation that 'revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.'" The question came down to the primary purpose of the bill, which the court found was not raising revenue, but ensuring that Americans had health insurance.
This doesn't come as much of a surprise, as a D.C. Circuit Court panel affirmed dismissal in March of a case with a similar legal theory. It seems Obamacare is here to stay, in spite of the many crafty ways its opponents are trying to take it down.
- Court Throws Out an Obamacare Tax Law Challenge (Politico)
- New Obamacare Challenge: The Origination Clause (The Volokh Conspiracy)
- D.C. Circuit Panel Skeptical of IRS in Obamacare Subsidy Lawsuit (FindLaw's D.C. Circuit Blog)
- Eighth Circuit Rejects Affordable Care Act Appeal (FindLaw's U.S. Eighth Circuit Blog)