Obamacare and the Origination Clause I: Introductory Thoughts

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.  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.