Posted on 05/03/2014 3:01:05 PM PDT by Hotlanta Mike
Two years ago, when the Supreme Court declared Obamacare's penalty to be a tax, it doomed the healthcare reform act as an "unconstitutional violation of the origination clause," columnist George Will says.
This Thursday, the Washington, D.C., Court of Appeals, the nation's second-most important court, will hear arguments on whether the Affordable Care Act adheres to the Constitution's "origination clause," which declare 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," Will writes in his column in The Washington Post Saturday.
Will points out that the Democrat-controlled Senate passed Obamacare on a party-line vote "without a Democratic vote to spare, after a series of unsavory transactions that purchased the assent of several shrewdly extortionate Democrats.
Thursday's arguments, said Will, will show that the act was "indisputably a revenue measure" that did not originate in the House, which later passed the House on yet another party-line vote.
(Excerpt) Read more at newsmax.com ...
This is the earliest example of this exact practise I have found:
“...(S. 115) ‘‘To modify the act of the 14th of
July, 1832, and all other acts imposing duties on imports,’’ introduced by Mr. Henry
Clay, of Kentucky, February 12, 1833.6 Objection was made by Mr. John Forsyth,
of Georgia, and others, that the bill was not constitutional, as the Senate did not
have the power to originate such a bill.7 The bill was considered and carried to
a third reading, when, on February 26, it was laid on the table,8 the bill of the
House (H. R. 641) being received in the Senate at that time. This House bill had
originally been reported on December 27,9 but, on February 25, on motion of Mr.
Robert P. Letcher, of Kentucky, the Senate bill proposed by Mr. Clay had been
moved as a substitute and adopted, retaining, however, the House number10 This
bill passed the Senate and became a law.11”
... from Hind’s Precedents Chapter XLVII pg 943
The basis is that our constitution did not forbid modification of revenue bills by the ‘upper house’ as the British did= but specifically allows it.
I believe it was a mistake today, and by Henry Clay in 1833, to allow this but wonder whether a court will repudiate such a long practise.
Other than having things completely, totally ass-backwards... I can't see anything else of interest in your statement.
The Constitution is a Doctrine of Negative Rights. It asserts human rights pre-exist the Constitution. That is THE fundamental basis of the American Constitution. NOTHING comes before it, or depends upon it. That alone is its sacred strength and value.
The Bill of Rights came after the Constitution because there was a strong fear that it would suggest that Rights had to be enumerated to exist, when the opposite was true. That in fact, all of the contents of the Bill of Rights - or ANY Bill of Rights, pre-exists by virtue of them BEING rights. To allay these fears, the 10th Amendment was included in the BoR to reassert the primacy of the Doctrine of Negative Rights, and that all human rights were not contained in the Bill of Rights.
In short, the Bill of Rights is a list of EXAMPLES of SOME of the human rights acknowledged as pre-existing the Constitution. That's all it is.
You put the cart firmly before the horse - and proved those Founders correct who feared the Bill of Rights would be interpreted as definitive creations, rather than limited examples, and thus should not exist at all.
I agree.
One Stone, Two Powers: How Chief Justice Roberts Saved America
Isn't that the very definition of "The Rule of Men, rather than the Rule of Law?"
The American Constitution is one of the greatest creations of the human race. It's power and sacred value is it's timelessness. Nothing in the universe can render it meaningless, because it upholds the sacredness of human existence itself.
That people have refused to honor it - as you do - has no effect whatsoever on its essential, eternal value.
You are like a man who dismisses the value of a boat while you flail in the water. Your words only effect your life - not the value of the boat.
“...(S. 115) ‘‘To modify the act of the 14th of July, 1832, and all other acts imposing duties on imports,’’ introduced by Mr. Henry Clay, of Kentucky, February 12, 1833.
6 Objection was made by Mr. John Forsyth, of Georgia, and others, that the bill was not constitutional, as the Senate did not have the power to originate such a bill.
7 The bill was considered and carried to a third reading, when, on February 26, it was laid on the table,
8 the bill of the House (H. R. 641) being received in the Senate at that time. This House bill had originally been reported on December 27,
9 but, on February 25, on motion of Mr. Robert P. Letcher, of Kentucky, the Senate bill proposed by Mr. Clay had been moved as a substitute and adopted, retaining, however, the House number
10 This bill passed the Senate and became a law.
11” ... from Hind’s Precedents Chapter XLVII pg 943
With deepest apologies for modifying your post for the sake of readability.
Thank you much for your excellent post!
bkmk
Thank you, bear in mind that by 1833 the Founders were no longer running things and Henry Clay was a bit of a trickster and does not have their ‘authority’ on constitutional construction.
Logically allowing an “amendment in the nature of a substitute” by the Senate obviates the origination clause, and the House’s prerogative is not equivalent to an amendment to the constitution .
It’s the long standing practise of the body that ‘rules’ our courts though so it would take great intrepidity to strike it down.
\A Harry Reid smack down. This low life stripped gutted replaced the contents of a bill with Unaffordable Kare act
I don't see it happening. What's the judge going to do? Cancel everybody's insurance under Obamacare and leave them without until Congress reworks it? Order insurance companies to reinstate prior policies whether they intended to continue those policies this year or not?
A judge is going to have to provide an alternative if he voids the law. He can't leave people hanging without insurance. He can't void all those contracts without major ramifications to people's health and to government liability.
He can strike down restrictions. He can strike down taxes under the law. But I just don't see how he can void the entire thing. And if he did, SCOTUS would overrule him, or Congress would impeach him.
Probably right. And this is another example why the standing rules are too strict. This legislation is too big to fail. Too many people would be left without insurance. Too many contracts would have to be broken if the law is voided. It should have been challenged as early as possible.
The most I think a judge could do now is treat it like it had a severability clause and void specific taxes.
Unfortunately, this is a horrible bill to have to challenge congress on it's origination bypass technique. It's not a bill the judge can easily void. So what does he do if he agrees the technique is unconstitutional?
Not a prayer. The SCOTUS will look like 9 people playing Twister to make sure the law doesn’t get overturned.
BOOKMARK
The most important thing holding it together is the fact that it’s the major “accomplishment” of the first black President. It and he are the ultimate accomplishments of the last 100 years of the progressive movement. They control the media, academia, and huge parts of the courts. The Constitution hasn’t really mattered at all since FDR. No government program can be withstood on legal grounds. It will take a GOP sweep of Congress and the White House, then it will take guts. I have my doubts.
Nothing of substance holds it together. It’s unsuccessful and unpopular, yet the GOP ran the one candidate who couldn’t actually attack it.
“What is it that makes the ACA so invincible?”
The dirty little secret is both political parties support it for different reasons.
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