Posted on 10/19/2014 12:30:23 PM PDT by Kaslin
Randy Barnett has an excellent post at the Volokh Conspiracy about his recent amicus brief requesting the D.C. Circuit grant en banc review of Sissel v. HHS. (Sound familiar?) Sissel challenges the constitutionality of ObamaCare’s individual mandate – which the Supreme Court ruled could only be constitutional if imposed under Congress’ taxing power – on the grounds that this, ahem, tax originated in the Senate rather than the House, as the Constitution’s Origination Clause requires.
A three-judge panel of the D.C. Circuit ruled against Sissel. The panel’s rationale was that the Patient Protection and Affordable Care Act was not the sort of “Bill[] for raising revenue” that is subject to the Origination Clause, because the purpose of the PPACA is to expand health insurance coverage, not to raise revenue. Barnett explains why this reasoning is nutty. Under the Sissel panel’s ruling, no bills would ever be considered revenue measures because all revenue measures ultimately serve some other purpose. The panel’s interpretation would therefore effectively write the Origination Clause out of the Constitution. Barnett argues instead that the courts must recognize the PPACA as a revenue measure subject to the Origination Clause because the Supreme Court held the taxing power is the only way Congress could have constitutionally enacted that law’s individual mandate.
A shorter way to describe Barnett’s argument is that he turns ObamaCare supporters’ own victory against them: “You say the individual mandate is constitutional only as a tax? Fine. Then it’s subject to the Origination Clause.”
Barnett again corners the D.C. Circuit with another sauce-for-the-gander argument on the procedural question of whether that court should grant en banc review of its panel decision in Sissel:
Of course, en banc review is rarely granted by the DC Circuit, but given that it recently granted the government’s motion for en banc review of the statutory interpretation case of Halbig v. Burwell presumably because of the importance of the ACA, the case for correcting a mistaken constitutional interpretation is even more important, especially as the panel’s reasoning has the effect of completely gutting the Origination Clause from the Constitution…
Or, the shorter version: “You guys think Halbig is worthy of en banc review? Fine. If the Sissel panel erred, the downside is even greater.”
We’ll see whether the D.C. Circuit thinks the Constitution is as worthy of its protection as ObamaCare.
“We’ll see whether the D.C. Circuit thinks the Constitution is as worthy of its protection as ObamaCare.”
We already know the answer to that.
Ain’t gonna happen.
I won’t take that bet no matter what odds you give me.
That statement is satire right? Or is it sarcasm? I always get the two confused.
Actually I think Sissel and his attorneys, the Pacific Legal Foundation, are absolutely correct. But when Roberts said that the taxing power could be used to force people to follow a law he already said violated the Commerce Clause, you knew it was over for the Constitution.
Aye — We already know that neither the Democrats, nor the Republicans, value the Constitution; this is evident from the [non-]reaction when the NSA's domestic espionage was revealed, and the continual support of agencies whose raison d'être is the abridgement of the Constitution in some manner. (The BATFE and the 2nd Amendment, the TSA and the 4th Amendment, the DEA and the interstate commerce clause, etc.)
The War on Drugs further shows us just how far over the judiciary is willing to bend in order to justify the government's actions —
In Wickard they decreed that the Congress could regulate the intrastate commerce because it had some impact on interstate commerce,
In Raich, they decreed that non-commerce was regulable by Congress, even though there was no interstate market exists, because if they didn't prohibit it then the market would exist (REALLY circular "logic" there),
In King, they decreed that even though the 4th Amendment requires a warrant the "exigent circumstance" policy for disregarding that requirement was perfectly fine.
So, yeah, expecting the judiciary to abide by the limits the Congress places on the government isn't reasonable.
Given the corrupt judiciary, I am not at all hopeful.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.