The Right Strikes Back: A New Legal Challenge for Obamacare

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The fight over health care reform is still going strong: A conservative group now argues that the Affordable Care Act is unconstitutional because it started in the wrong House of Congress.

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Michelle Bachmann speaks at a rally in front of the Supreme Court in March against the Affordable Care Act. (Reuters)

They're baaack.

You probably thought that once the Supreme Court upheld the Affordable Care Act last June, the Act's constitutionality would be settled.

Not a chance.

The Pacific Legal Foundation, a conservative public-interest law firm, has opened up a new front in conservatives' never-ending struggle to wipe Obamacare off the books. Their secret weapon? The Origination Clause of Article I, section 7, which states that "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 key idea is that the Supreme Court recently upheld the individual mandate as a tax. But if the mandate is a tax, the PLF argues, then it is a bill for raising revenue. That means that the Affordable Care Act must have begun in the House of Representatives. And it did not.

The House passed a version of health care reform on November 7, 2009, and sent it to the Senate. Senators wanted to produce their own bill. The Origination Clause, however, requires that all bills for raising revenue must begin in the House, and health care reform included many new taxes, including the individual mandate. So the Senate amended another tax bill that the House had recently passed: H.R. 3590, which changed the taxation rules for servicemen and women buying new homes. It struck out the text of the existing bill, and inserted its new proposal as an amendment. This procedural maneuver is called using a "shell bill." This version of health care reform passed the Senate 60-39 on December 24, 2009.

In January, the Democrats lost their filibuster-proof majority when Massachusetts Republican Scott Brown was elected on a campaign promise to be the 41st senator who could block health care reform.

Because of the filibuster, the Democrats could not get the House version through the Senate, so they used the version that had already passed the Senate as the basis for Obamacare. Then they added a reconciliation bill -- which began in the House -- that required only a majority vote of both chambers. It passed in March 2010. The current health care law is the Senate Bill as amended by the reconciliation bill.

The lawyers at the Pacific Legal Foundation argue that it was unconstitutional for the Senate to use a "shell bill" to pass their version, and therefore the Senate bill violates the Origination Clause. Therefore the entire health care bill is unconstitutional. Pretty neat, huh?

Well, there are a few problems. The PLF press release emphasizes the first part of the Origination Clause but not the last part, which says that "the Senate may propose or concur with Amendments as on other Bills." That language is the very reason why the Senate uses shell bills. In fact, the Senate has used shell bills on a number of occasions for major tax legislation. An example is the 1986 tax act, signed by Ronald Reagan.

The House has the power to enforce the Origination Clause if it wants to. If the House doesn't like what the Senate has done, it can return a bill to the Senate with a "blue slip" -- a memorandum that was traditionally printed on blue paper -- to indicate to the Senate that it thinks that the Senate has violated the Origination Clause. Or it can simply refuse to take up the Senate bill. The health care bill was not blue-slipped; the House leadership raised no objections.

The PLF will likely argue that it doesn't matter whether the House has offered a blue slip. The courts have an independent obligation to strike down laws that violate the Origination Clause. That much is true. If the House and Senate are controlled by the same party, the House may not want to exercise its constitutional prerogatives. Moreover, the Origination Clause was designed to ensure that tax bills start with the House because the framers believed that the House would be closer to the people. Its members are elected every two years (Senators serve for six years); and, unlike the Senate, where each state gets two votes, the House is apportioned by population. Therefore, in 1990, the Supreme Court, in an opinion by Justice Thurgood Marshall, held that the mere fact that the House acquiesces does not automatically resolve the Origination Clause issue.

But the PLF has to prove more than this to win its case. It has to show that the Senate can't amend a House bill that raises revenue and substitute a different bill on a different subject. The Supreme Court's cases, however, say that the Senate can do precisely that.

In Flint v. Stone Tracy Co. in 1911, the Senate took a House tariff bill with an inheritance tax, jettisoned the inheritance tax, and substituted the nation's first corporate income tax. The Court said that was perfectly fine: "The bill having properly originated in the House, we perceive no reason in the constitutional provision relied upon why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject-matter of the bill, and not beyond the power of the Senate to propose." The Court didn't explain why the addition of a corporate income tax was germane to a tariff bill or to an inheritance tax, other than the fact that all three were provisions "for raising Revenue" under the meaning of the Constitution.

The real question is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare

Perhaps the PLF could use this language to argue that the health care bill wasn't germane to the original House bill -- the latter was about changing income tax rules for servicemembers. But three years after Flint, in Rainey v. United States (1914), the Supreme Court allowed the Senate to add an excise tax to a House revenue measure where there was no connection between the two at all other than the fact that both provisions were taxes.

In Rainey, the Court made clear that it would not inquire into the germaneness of the Senate's amendments. Quoting a lower court decision, it explained that "the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated act of Congress, it is not for this court to determine whether the amendment was or was not outside the purposes of the original bill."

In addition to all these problems with the PLF's challenge, there is also the difficulty that the reconciliation bill, which started in the House, amended the individual mandate, and changed the tax. The PLF must explain why the reconciliation measure doesn't survive as valid law.

If the Court follows its existing precedents, the new challenge to the health care bill is unlikely to succeed. But of course, that's what people said about the Commerce Clause arguments in the last challenge. And five Justices eventually bought those arguments, even though the Court as a whole upheld the individual mandate as a tax.

In a previous essay for The Atlantic, I noted that even if a legal argument is currently "off the wall," it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from "off the wall" to "on the wall." The challengers' arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers' claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.

Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF's new constitutional challenge to Obamacare is likely to succeed on the merits. I've just given you my answer: not under existing law.

But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind -- again. (In 1990, Justice Scalia wrote a concurrence in which he argued that most Origination Clause challenges should be dismissed; but as we learned in the health care litigation, he is not likely to feel bound by his previous opinions.)

Of course, it is also possible that the Supreme Court will not want to take up another challenge to the Affordable Care Act so soon after the first one. Nevertheless, in the past the Court has sometimes declared unconstitutional statutes or policies it had previously upheld when a new challenge was posed under a different legal theory. For example, in 1980, the Supreme Court held that criminal trials had to be held open to the public under the First Amendment after rejecting a similar challenge a year before made under the Sixth Amendment.

Republican politicians might be ready for a new round of constitutional challenges to the Affordable Care Act, especially if they lose the presidential election, if the health care bill remains unpopular, and if they believe that eliminating Obamacare is their best ticket for regaining control of the Senate and the White House. On the other hand, if the public starts to like the health care law's benefits, Republicans might conclude that a second all-out assault is not in their best interests. They may decide to live with Obamacare, just as previous generations of Republican politicians eventually learned to live with the New Deal, Social Security, Medicare, and other social insurance programs. We won't know for certain until well after the election.

But even if the mainstream of the Republican Party does not support them, some movement conservatives will likely press onwards. They will bring challenge after challenge to Obamacare -- until they run out of plaintiffs, or money, or both -- because they genuinely believe that health care reform is both unconstitutional and a grave threat to human liberty. So if the Origination Clause challenge fails, expect to see future challenges based on other parts of the Constitution. And it won't matter one bit whether or not most law professors think these challenges are frivolous. (There are already a number of challenges to the Obama Administration's contraceptive mandate based on the Free Exercise Clause and the Religious Freedom Restoration Act. On the merits, these theories are much more serious than the Origination Clause challenge, but they do not threaten the entire health care act.)

And once the constitutional challenges run out, expect challenges to the implementation of the Affordable Care Act based on statutory interpretation and administrative law. (Several of these are either in the planning stages or have already begun.) If there's a way to gum up the works of health care reform, you can expect that opponents of Obamacare will try it. The constitutional and legal struggle over health care reform isn't over. We have only completed round one.

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Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies. More

Professor Balkin is a member of the American Academy of Arts and Sciences, and the author of over a hundred articles in different fields including constitutional theory, Internet law, freedom of speech, reproductive rights, legal philosophy, and social theory. He writes political and legal commentary at Balkinization. His books include Living Originalism; Constitutional Redemption; The Constitution in 2020 (with Reva Siegel); The State of Play: Law Games and Virtual Worlds (with Beth Noveck); Cybercrime: Digital Cops in a Networked Environment (with James Grimmelmann et al.); Cultural Software: A Theory of Ideology; The Laws of Change: I Ching and the Philosophy of Life; What Brown v. Board of Education Should Have Said; and What Roe v. Wade Should Have Said.

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