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.

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Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project.

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