The lawsuit has been around for a while, but the Washington Times reports that a decision from the District Court is imminent, so it might be worth taking a quick look at the concept in advance of the decision. The argument, in a nutshell, is that ObamaCare being a tax, the Constitution requires it to “originate” in the House:
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 lawsuit is brought by the Pacific Legal Foundation, which explained how ObamaCare came about:
[T]he Obama Administration’s health care law did not originate in the House; it originated in the Senate, when Senator Harry Reid “amended” a bill the House had passed by striking out all of its text and replacing it with the Senate-written bill that eventually became Obamacare.
The Washington Times article says the government has (not surprisingly) filed a brief saying that shell bills are constitutional:
Using H.R. 3590 as a “shell bill” may be inelegant, but it’s not unconstitutional, according to the government motion.
“This commonplace procedure satisfied the Origination Clause,” said the brief. “It makes no difference that the Senate amendments to H.R. 3590 were expansive. The Senate may amend a House bill in any way it deems advisable, even by amending it with a total substitute, without running afoul of the Origination Clause.”
The brief cites a number of cases in which courts upheld shell bills, but foundation attorneys counter that those rulings involved the Senate substitution of one revenue-raising bill for another.
“Here, by contrast, it is undisputed that H.R. 3590 was not originally a bill for raising revenue,” said the Pacific Legal Foundation lawsuit. “Unlike in the prior cases, the Senate’s gut-and-amend procedure made H.R. 3590 for the first time into a bill for raising revenue. The precedents the government cites are therefore inapplicable.”
The original bill passed by the House of Representatives was the “Service Members Home Ownership Act of 2009.” Reid literally used that bill as a shell, eliminated every word, and replaced it with the language of ObamaCare. It is as cynical a bypass of the Origination Clause as one can imagine. The Democrats probably handled it that way because the sponsors of ObamaCare were claiming it wasn’t a “tax” — so why should they have to follow a procedure that admitted it was a tax?
No less an authority than Randy Barnett says: “If any act violates the Origination Clause, it would seem to be the Affordable Care Act.” The only way the violation could be more obvious is if the Senate hadn’t even bothered to use a shell bill, but had simply written a bill of its own without a shell.
We’ll soon learn if the District Court believes the Origination Clause means anything. It should be interesting.