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Opinion

Obamacare faces new legal challenge: Its 'tax' still violates the Constitution

The Supreme Court saved Obamacare by deeming the law's individual mandate a 'tax.' But in that case, the law violates the Constitution's Origination Clause, which says all tax bills must originate in the House, not the Senate. Letting the law stand sets a dangerous precedent.

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Was this “gut and amend” ploy valid?

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That question is now in front of US District Judge Beryl Howell in Washington, D.C., in a challenge to Obamacare filed on behalf of Matt Sissel, an Iowa small business owner who was decorated for service as a medic in the Iraq war.

Obamacare was passed hastily, by lawmakers who admitted they had not read the bill. The legislation was passed during the holiday season, through questionable procedural tricks. It was never popular, and a recent Kaiser Family Foundation poll found that only 36 percent of Americans currently support the law. Even the Supreme Court’s liberal wing agreed that large parts of it were unconstitutional. In part of last June’s decision, Justices Stephen Breyer and Elena Kagan joined the conservatives to hold that Congress had illegally tried to force states to expand their Medicaid rolls.

These are all good reasons not to give a reflexive pass to the law’s most controversial aspects – including the way it was enacted.

The Supreme Court has never addressed whether the Senate can evade the Origination Clause by hollowing out a House bill and substituting its own tax. “If any act violates the Origination Clause, it would seem to be the Affordable Care Act,” Randy Barnett, a Georgetown University Law School professor and leading constitutional critic of Obamacare, has written.

The Constitution’s procedural guidelines might seem like dry formalities. But such procedures were designed to safeguard the rights of the American people. And if last June’s Supreme Court decision is not to become a precedent for Congress to impose any variety of mandates on Americans under the taxing power, courts should take care to enforce democratic controls over that power.

Timothy Sandefur is a principal attorney with Pacific Legal Foundation, a public-interest legal organization that litigates for limited government, individual rights, and free enterprise. He represents small business owner Matt Sissel in challenging the constitutionality of the Affordable Care Act’s individual mandate “tax.”

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