The New York Times editorial board on the origination clause challenge to the Affordable Care Act: More Specious Attacks on Reform. The conclusion (none too subtle):
The opponents of health care reform are making desperate arguments that defy common sense and the purpose of a law that was approved by the political process and is providing benefits to tens of millions of Americans. Should these cases somehow reach the Supreme Court, the justices should reject their arguments outright.
Randy Barnett responds: Another "specious" defense of Obamacare. He begins:
The New York Times is lawyering again in defense of the Affordable Care Act in an editorial tendentiously titled More Specious Attacks on Reform. Hence the tendentious title of this post. In reality, legal arguments typically have two sides and dismissing one as specious (or frivolous) is almost always unwarranted and undermines the credibility of the critic, in this case the editorial writer of the Times.
I think there are plenty of specious and frivolous arguments out there, but (for the reasons Professor Barnett outlines later in his post) the origination clause challenge isn't one of them. The only way to defeat the origination clause challenge, it appears, is either (a) for the courts to give Congress almost complete deference in the resolution of origination clause issues, or (b) to read the origination clause in a way that renders it largely meaningless. hese are likely enough outcomes, especially given the stakes, but arguing the contrary doesn't seem specious. Instead, I think the Times editors' namecalling makes it seem like they are actually a little worried.
RELATED: Recent posts have focused on the origination clause case in the D.C. Circuit, but there's another one in the Fifth Circuit, Hotze v. HHS. Jonathan Keim at NRO reports on an amicus brief filed by House Majority Leader Eric Cantor and House Whip Kevin McCarthy in support of the challenge. It argues:
The Senate, recognizing that it is constitutionally forbidden from originating tax increases, did so by seizing upon a six-page House Bill (H.R. 3590) that provided tax credits for soldiers. The Senate took that bill, deleted every letter after the enacting clause, and replaced it with 2000 pages of unrelated tax increases, fundamental transformations of healthcare and health insurance, and various other legislative knick-knacks. But rather than simply call this new piece of legislation what it was—a Senate bill—the Senate claimed to have made only some “Amendments” to the House bill. If the Senate’s wholesale replacement of a short tax-credit-bill with massive, unrelated tax-increases does not violate the Origination Clause, then nothing does. This is not a slippery slope; it is the bottom of the puddle at the bottom of the hill.
Posted at 10:57 PM