In a body-blow to freedom lovers everywhere, the DC Circuit upheld the dismissal of Sissal v. HHS, a suit filed under the Commerce and Origination Clauses of the Constitution. Sissel argued the Commerce Clause did not permit the government to require him to purchase insurance, a matter settled in NFIB v. Sebelius and, given Sebelius termed the Individual Responsibility Payment a tax, which it did, the law violates the Origination Clause of the Constitution stating bills for raising revenue must originate in the House; whereas Obamacare famously was written in the Senate and subsequently passed verbatim by the House as the Democrats then in Congress (some of whom, unfortunately, are not only still alive but still in Congress) knew they hadn’t the political strength to pass it in the Senate again if the House chose to amend it and send it back.
In a short but tightly reasoned unanimous opinion, Circuit Judge Rodgers found the Commerce objection failed via a misreading of the Supreme Court’s opinion in Sebelius; specifically that Obamacare does not require the purchase of insurance, but rather offers a choice between buying insurance or paying a tax:
Although Chief Justice Roberts stated that “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance,” id., he concluded, in an opinion joined by four other Justices, that “it need not be read to declare that failing to [purchase insurance] is unlawful,”id. at 2597 (opinion of Roberts, C.J., joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (emphasis added). Rather, the Court held that Section 5000A can be read to do nothing “more than impose a tax,” and “[t]hat is sufficient to sustain it” under the Constitution. Id.at 2598
I incline my agreement. Sebelius is wrongly decided on this point (albeit correct on the Federalism and Commerce limitation points) and the Supreme Court should have sent it back to the Congress to try again. Nonetheless, DC Circuit has without doubt correctly interpreted what the Supreme Court said.
However, I disagree with DC Circuit on the Origination clause. The argument there is the Senate can’t write a tax, only the House can under the Origination Clause, which reads:
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.
Given the bill was written in the Senate, and subsequently passed without amendment by the House, and further given the Supremes have said the Individual Responsibility Payment is a tax, it looks to me, prima facie, they can’t do that. DC Circuit disagrees, and they overcome my objection by saying Obamacare is not a “bill for raising revenue,” it is rather an attempt by the Congress to provide universal health coverage, and the Origination Clause does not apply.
In our arguments before the court, we contended that this vague “overall purpose” kind of approach shouldn’t apply. No previous court decision has used it; although some language in the precedent, when read out of context, refers to the “purpose” of various laws, what the Supreme Court has actually said is that there is a category of taxes that aren’t really taxes, because they’re penalties—fines or other provisions meant to force you to comply with some other law. Those aren’t subject to the Origination Clause. But the individual mandate tax doesn’t fall into that category. Why not? Because the Supreme Court said so in NFIB v. Sebelius. It specifically held that the individual mandate tax is not a penalty—only a tax.
The D.C. Circuit says that that does not mean that there isn’t another category of taxes immune from the Origination Clause. Maybe…but the Constitution says nothing about that. And nothing in the case law holds that courts can decide for themselves what the “the main object or aim” of a tax is, and then apply whatever constitutional requirements it thinks appropriate, given that “general purpose.” [emphasis in original]
Thus, according to PLF– I suspect DC Circuit would disagree– DC Circuit has taken it upon themselves to invent a new class of taxes immune to the Origination Clause, in accordance with the “purpose of the statute,” which may apparently be determined by the sitting judge as Circuit Judge Rodgers’ opinion, which I have read, offers no bright line rule, or even guidelines, on how to determine such matters.
PLF has already been quoted as saying they intend to appeal the decision to the Supreme Court. I do not know if they will get it. The Court really doesn’t want to do that, if they can help it. They don’t like restricting the Congress any more than they have to, and deciding the case Sissel’s way would do exactly that. Ask me, that would be a good thing, because I think “All Bills for raising Revenue [should] originate in the House of Representatives.” But the Court doesn’t want to handcuff the Congress if they don’t need to do so. I also think they might pass on this one if they decide to take up Burwell, and it looks like they will sustain DC Circuit in that one. If they do, the Justices who would have overturned Obamacare on Commerce grounds might be satisfied sufficiently with that mortal wound, and not feel any need to go here. Burwell is textual, meaning they have a very firm basis for interpretation with no need to get fancy, and it’s statutory, not Constitutional. We shall see.