The new challenge to Obamacare (ACA) – on the grounds that it does
not conform to the Origination Clause – has been discussed by Randy Barnett and Jack Balkin
among others (including of course Mike Ramsey). Sadly, irrespective of the merits of the challenge, I
don’t see the Supreme Court taking this seriously. The Supreme Court
like other politically powerful institutions, once having decided the
matter and taken the political heat, are unlikely to revisit the issue.
Unless, of course, circumstances require them to do so. Perhaps the
Republican Party getting behind the lawsuit (as Balkin mentions) would
be one of those circumstances, but I would be surprised if it does so.
The
question, though, that I am interested in here is what is the original
meaning. Not having fully studied the issue, I don’t have a firm
position, but I do have some contributions to make to the debate.
The
Origination Clause provides 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 argument against the constitutionality of the ACA under the
Origination Clause is that the ACA “really” originated in the Senate,
not the House. According to the Pacific Legal Foundation, which is bringing the lawsuit:
what
became the ACA was introduced in the upper chamber by Senate Majority
Leader Harry Reid. In a so-called “shelf bill” maneuver, Reid took a
House-passed measure to help veterans buy homes, struck out all its
language, and inserted the federal health care legislation that became
known as the ACA, with its health insurance mandate and charge for
people who choose not to comply. In fact, the ACA, as it was created in
the Senate, included a dozen new taxes estimated to increase federal
revenue by $486 billion by 2019.
One argument made against the
constitutionality of the ACA under the Origination Clause is that, if
the Origination Clause means anything, it has to hold the Senate’s
action in this case unconstitutional.
Taken literally, I don’t
think this is correct. To my mind, the most extreme case – and the one
where the Clause would clearly prohibit the Congress’s action – is if
the Senate did not take the trouble to amend a House bill at all. It
simply introduced its own bill. That would be unconstitutional. In the
ACA case, the Senate did “amend” a House bill. Another extreme, but
less extreme case, would involve the Senate taking a House nonrevenue
bill and “amending” it. Again, that would be clearly unconstitutional.
In my next post, I will discuss Jack Balkin’s analysis of the issue.
(Cross Posted at the Liberty Law Blog)
Posted at 7:45 AM