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California Group Takes New Obamacare Challenge to Supreme Court

Obamacare has survived twice at the Supreme Court, but it may now face a third challenge brought by the California-based Pacific Legal Foundation (PLF). PLF’s case is based on the Constitution’s Origination Clause (Article I, Section 7, Clause 1): “All Bills for raising Revenue shall originate in the House of Representatives.”

Since the Supreme Court ruled in NFIB v. Sebelius (2012) that the law’s individual mandate is a “tax” and not a penalty, PLF argues, it ought to have originated in the House and not the Senate, and is therefore unconstitutional.

PLF ‘s challenge lost at the (newly-packed) D.C. Circuit Court of Appeals last year, and on Friday the court denied a request for a rehearing. In response, PLF says, it is appealing directly to the U.S. Supreme Court: “We knew going in that this case would ultimately end up on the Supreme Court’s doorstep, and now it’s time,” said PLF’s Timothy Sandefeur, writing on the organization’s blog.

It is unclear whether the Supreme Court will actually take up the case; the vast majority of appeals are denied certiorari, or “cert,” by the nation’s highest court.

Four judges dissented from the D.C. Circuit’s denial of an en banc hearing by the full court. In the dissenting opinion, Judge Brett Kavanaugh wrote that he agreed with PLF that Obamacare should fall under the Origination Clause, contrary to the court’s holding.

However, he also said that he believed Obamacare complied with that clause, because “the original House bill was amended and its
language replaced in the Senate.” Then-Majority Leader Sen. Harry Reid (D-NV) amended an unrelated House bill to move Obamacare.

The case, Sissel v. U.S. Department of Health and Human Services, has been closely watched by Constitution buffs, but many think it is unlikely to succeed even if it does receive the four votes from Supreme Court Justices needed to grant certiorari. Obamacare has survived two other constitutional challenges, thanks to activist re-writing and interpretation by Chief Justice John Roberts and his colleagues.

The Roberts court has apparently determined that it will not overturn President Barack Obama’s signature domestic law, regardless of the reason.

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