40 GOP House Members Join Lawsuit That Could Give Justice Roberts an Obamacare 'Do-Over'

On November 8, Representative Trent Franks (R-AZ) and thirty-nine other Republican members of the House of Representatives filed a "friend of the court" brief in support of a legal challenge to the Affordable Care Act ("Obamacare") based on the Origination Clause that will be heard by the District of Columbia Federal Court of Appeals in early 2014.

The case, Sissel v United States Department of Health and Human Services, was filed in the Washington, D.C. District Federal Court by the Pacific Legal Foundation on behalf of Matt Sissel, an Iraq war veteran who lives in Iowa, where he owns a small business, on July 26, 2010.

The Origination Clause of the Constitution, Article 1, Section 7, Clause 1 states "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." Not a word of the Affordable Care Act originated in the House of Representatives. Instead, using a legislative trick, Senate Majority Leader Harry Reid (D-NV) took an innocuous bill that had passed the House unanimously on October 8, 2009 by a 416-0 vote, the Service Members Home Ownership Tax Act of 2009, removed every word of its text following the first sentence, and replaced it with the Affordable Care Act language.

On June 28, 2013, Judge Beryl Howell, an Obama appointee, ruled against Sissel, dismissing his complaint using reasoning that required a rejection of Chief Justice John Roberts' controversial and even ridiculed majority opinion in the Supreme Court's 5-4 decision in the 2012 NFIB v Sebelius case. In that opinion, Roberts declared Obamacare constitutional based upon his opinion that the law's individual mandate was, in fact, a tax.

Judge Howell ruled that the type of revenue raised by the act that Justice John Roberts deemed to be a tax was not the type of revenue that constituted a tax under the Origination Clause.

Specifically, Judge Howell made two assertions in her ruling that conservative critics believe are belied by the facts:

1. The individual mandate is not a "Bill for raising Revenue."

2. The individual mandate was an amendment to a bill that originated in the House of Representatives. 

Even though Justice Roberts declared that the individual mandate was a tax in NFIB v Sebelius, Judge Howell ruled that the revenue raised by Affordable Care Act was "incidental" to the law, and therefore was not covered by the Origination Clause.

Equally baffling, Judge Howell ruled that the tactic of "gutting and replacing" a bill, which Majority Leader Reid used to push the Affordable Care Act through, was in fact merely the issuing of an amendment, despite the fact that not a single word of the original bill was kept in the so-called "amendment."

On July 9, 2013, the Pacific Legal Foundation appealed Judge Howell's dismissal of Sissel v United States Department of Health and Human Services to the District of Columbia Federal Court of Appeals. On filing the appeal, Timothy Sandefur, one of the two principal attorneys on the case for Pacific Legal Foundation, said "[t]he district court wrongly held that the individual mandate is not a 'bill for raising revenue.' " The district court's ruling "misses the point of what the individual mandate is and what it does," he argued.

"While some kinds of taxes have been held not to be 'bills for raising revenue' and not subject to the Origination Clause, this is only where the tax is really just a penalty or a fine used to enforce compliance with some other constitutionally valid law," he stated."Such logic," he concluded, "doesn’t apply to the individual mandate, because the Supreme Court itself, in its Obamacare ruling last year, explicitly denied that the individual mandate is a 'penalty.' Therefore it must be a ‘bill for raising revenue’ subject to the Origination Clause."

Paul J. Beard II, the second principal attorney for the Pacific Legal Foundation, disputed the district court's claim that the Affordable Care Act was a true amendment added in the Senate to a bill that originated in the House of Representatives. "The problem with that analysis is that the House bill had no connection to health care," he said. "It was about helping veterans buy homes. Moreover, it didn’t raise revenue. Its tax credits for veterans and corresponding tax increases on corporations were designed to be revenue neutral. Finally, Obamacare wasn’t added as a true amendment. Rather, Obamacare was substituted for the provisions of the House bill, which were totally stripped out."

The filing of the "friend of the court" brief by the forty House Republicans adds an element of constitutional legitimacy to Sissel's case. As the Washington Times reported on Sunday, the brief noted that "given that an Origination Clause challenge against a taxing bill of this magnitude has never before been mounted, it is imperative that this Court not sanction the lower court’s superficial analysis of the Origination Clause."

The Pacific Legal Foundation's Beard told the Times, "this support from members of the House is especially significant because PLF’s lawsuit defends the constitutional authority of the lower chamber, the legislative body that is closest to the people."

Regardless of the decision made by the Court of Appeals, it seems likely that the losing party will appeal the case to the Supreme Court, which might take the case for consideration in the fall of 2014. This would set up the announcement of a decision in June 2015, three years after the NFIB v Sebelius decision, but still a full year and five months before the 2016 Presidential election.

The potential Supreme Court decision in the Sissel v Department of Health and Human Services case could offer Justice Roberts, as Josh Blackman, Assistant Professor at the South Texas College of Law wrote on Sunday, an opportunity for the greatest "legal mulligan" in history. Golfers use the term "mulligan" to describe "do-overs" on bad shots.

"If you asked me several months ago about the likelihood of a court striking down the law on origination clause grounds, I would not have pegged it very high," Blackman wrote. "But the events of the last few months have altered my thinking. The events of the last week have crystallized it." 

Blackman argued that "in light of massive, and widespread unpopularity, and tepid opposition from vulnerable Democrats, the thinking has changed. Considering the President decided to unilaterally waive one of the most significant features of the law . . . the legitimacy and finality of this law is far from settled. If the law was settled . . . there would be no need for waivers."

Blackman noted that "[t]he D.C. Circuit is not full of shrinking violets. Although Judges Kavanaugh and Silberman upheld the ACA, a panel of the Court found the President’s recess appointment power unconstitutional. Factoring in the widespread opposition, and dissatisfaction with this law, and an increasing level of support from the Republican party, this case may yet have legs."

Blackman concluded that "perhaps Chief Justice Roberts can get a mulligan, when there is not a presidential election around the corner. Or maybe he’ll decide because it’s not actually a tax, the origination clause doesn’t apply."

Constitutional conservatives across the country are in agreement that NFIB v Sebelius is a Supreme Court decision desperately in need of a do-over. Members of Congress may have just increased the likelihood that it will get just such an opportunity.


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