Posted on 11/12/2013 7:18:08 PM PST by dontreadthis
Washington, D.C.; November 11, 2013: Pacific Legal Foundation's legal challenge to Obamacare received important backing in the form of an amicus brief filed by Congressman Trent Franks, R-Arizona, Chairman of the House Judiciary Subcommittee on the Constitution, joined by several dozen other members of the House.
The amicus brief was filed Friday in the U.S. Court of Appeals for the D.C. Circuit, in PLF's case, Sissel v. U.S. Department of Health & Human Services... snip PLF's challenge focuses on the individual mandate, which requires nearly all Americans to buy a federally prescribed health insurance plan or pay a penalty to the federal government — a charge that the U.S. Supreme Court identified as a “tax” in its 2012 ruling on Obamacare.
Because Obamacare's individual mandate is a tax — and, indeed, Obamacare includes more than $500 billion in new taxation, in all — the law should have been initiated in the House, where Article I, Section 7, of the Constitution says new taxes must “originate,” in order to keep the taxing power close to the people. However, in defiance of this constitutional requirement, Majority Leader Harry Reid launched the law in the Senate, by taking an entirely unrelated House bill on housing for veterans, stripping it, and inserting the language that became Obamacare.
(Excerpt) Read more at pacificlegal.org ...
Point #1, yes. Let the lawsuits being once the first tax is collected.
Point #2. Let’s hope so.
This is a bit confusing to me. Back when this happened, I read that Nancy Pelosi stripped the bill, and dropped in the senate bill. The House already had it’s own ideas, and didn’t like the Senate version that much.
However, because the Senate didn’t have the votes to pass it again, this is what they did. Pretended that the bill originated in the House. Since it had already passed the Senate, IIRC, the Senate didn’t have to vote on it.
Hence a bill originating in the house, was actually voted on in the senate first, before being voted on in the house. Does that make any sense at all? If the house originates a bill, shouldn’t it pass the house first? Any way whatever they did was a crock of rot!
Expect to hear what difference does it make anyway - the house approved it.
The problem then becomes what test should be applied as to whether something is just an amendment or an originating rewrite.
Should be interesting.
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How about the timing of the vote? If it originates in the house, then the house votes first, and the bill goes to the Senate for a vote.
In this case the bill passed the Senate first. Ergo it couldn’t have originated in the house.
Yep It’s interesting. High time they got back to following the constitutional requirements. This could save the Dems, if the court rules it unconstitutional. Chances are probably slim to none.
The tax is being unequally applied; some don’t even have to pay it; isn’t it also a case of equal protection
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I would think so, but then some people don’t pay income taxes either. It differs depending on your income. So I guess that’s not a viable argument either.
However, all these waivers, I would think are violations of the equal protection clause.
Informative post. Thanks.
So basically you’re saying that the House could have struck this, but didn’t. Right?
Actually the “House bill on housing for veterans” was voted on in the House first so the “amendment in the nature of a substitute”- obamacare- which replaced it was technically, also.
Yeah it’s some messy sausage-making there.
At heart nothing will come of this because the House did not assert it’s prerogative at the time. There’s no getting around that for the court.
Yeah. I can’t see a court overriding that.
You are no doubt correct. However, it is still mind numbing to think that the “amendment” was actually voted on in the Senate first.
Then voted on in the house, and never voted again in the Senate. Yet said to be originated in the house. Chicanery, and tricks most foul!
This all just seems to be so Kafkaesque. Its a tax for the nanosecond it need to be a tax to allow the law to stand, but not and instant longer, therefore the origination clause does not apply. The American people didn’t want nor like this law when it was proposed. They did not like the way the system was manipulated to cram it down our throats, and they do not like the law in its implementation, and yet, we cannot do away with it. Its like toe fungus.
I did not say it was practiced by the Founders. Do you have anything backing up such a contention you stated?
Conducting such covert maneuver does not sound like the open and straightforward way the Founders operated.
Wouldn’t John Roberts would have to reverse himself to sustain this challenge? In the original ruling, he turned the penalty into a tax and then he approved it. If he were of a mind to overturn it on the basis of the Origins Clause, he could have done so then. I don’t think SCOTUS will touch this.
Most of the hard liberal faction of dems certainly does not want anything to increase chances of their Holy Grail falling apart. Only a few endangered dems are not willing to support it until death do they part.
If its held unconstitutional, it would save the dems from themselves.
I don't think anybody really knows the answer to those questions.
But, then, no Justice has ever before done what Roberts did.
Kafkaesque is an apt description.
I understand that the SCOTUS only consider the specific points brought before them in any case.
When it was brought to the SCOTUS wasn’t the point the Commerce Clause forcing us to buy something? It had to be a forced purchase or a tax or would be thrown back to Congress.
From what I also understand any Commerce Clause challenge has a very tough time because the Commerce Clause is a very iffy and sticky issue that has proved most difficult in front of previous SCOTUS and such challenge could potentially dragged on for many years, whereas making it a simple tax clearly opened “origination”. The dems were holding their collective breathes so hard they (their SCOTUS friends on the bench) dared not refuse the tax contention and with crossed fingers enabled it ruled a tax.
I also think the dems Congress leadership understood it could be in danger if they wrote it to be a tax, because of origination. Commerce Clause has no “origination” restriction.
At the time I remember the pundits in masse thinking they didn’t call it a tax because it would anger the voters to have a new tax. Forcing such a monstrosity down all the voters throats surely had the potential for much greater anger. They were thinking “Origination” and they knew they could never get a re-start passed the second time to clear up origination, the votes were crumbling as it was.
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1.
That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.
The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990).
-snip-
Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
http://www.law.cornell.edu/supremecourt/text/11-393
The Founders used the British parliament as their guide and “strike and replace” and the “amendment in the nature of a substitute” were common practise in parliamemt.
So I “suspect”, as I said, there an example of their use in a revenue bill by our Founders.
And I would consider that conclusive.
If its held unconstitutional, it would save the dems from themselves.
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That’s what I was thinking too.
Either the senate should not be able to originate an amendment that includes a tax. (Probably better in line with the constitutional spirit, but I bet there is a long history of precedents of the Senate doing exactly that).
or the Senate should not be able to entirely gut a bill and substitute their own that includes a tax.
If the latter, we get into what constitutes entirely gutting a bill. If they left one word, is that gutting it? And unfortunately if it comes down to this level of minutia, I bet the Supreme court sides with the Senate and says an amendment is an amendment even if it guts the entire bill.
Oh contraire, the Constitution sure seemed somewhat original and Laws may have had some background in British Common Law, but your conclusion is unsupported by any evidence and is thus simply your opinion.
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