The Issue: Did Passage of the ACA Violate the Constitution’s Origination Clause? Obamacare imposes a charge on Americans who fail to buy health insurance — a penalty payment that the U.S. Supreme Court characterized in June 2012 as a federal tax. In this case, the non-profit Pacific Legal Foundation argues that that this purported tax is illegal because it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause. The exact procedure used to pass the ACA is succinctly described at Breitbart.com: “On September 17, 2009, Congressman Charlie Rangel introduced a bill in the House, H.R. 3590, the “Service Members Home Ownership Tax Act of 2009,” whose purpose was “to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees.” The bill passed the House on October 8 by a 416-0 vote. On November 19, Harry Reid introduced his own version of H.R. 3590 in the Senate. He took the bill that had been unanimously passed by the House, renamed it the “Patient Protection and Affordable Care Act,” deleted all its contents after the first sentence, and replaced it with totally different content. What followed was the first pass of the Senate version of ObamaCare.”
What if the Courts Rule Against Obamacare? A ruling in favor of the plaintiff would invalidate the entire law. Critics argue that courts could not justify setting aside the entire law based on such a procedural nuance. As well, the identical procedure has been used in the past, for example to pass the TARP bill in October 2008. The Supreme Court also established in 1892 an “enrolled bill rule” in its 1892 decision in the Marshall Fields Co. v. Clark case. Under this rule, “the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the ‘proper origination of the bill.’” The Supreme Court has reviewed only eight Origination Clause claims in its entire history, and has never invalidated an Act of Congress on that basis. However, recall that prior to Justice Roberts’ ruling, there was a widespread consensus that seven decades of Supreme Court precedents had pretty firmly established that there were few if any limits on the Congress’s use of the Commerce Clause. Yet a majority of the Court ultimately determined that Obamacare represented a step too far in terms of the exercise of that provision of the Constitution. It is certainly conceivable the Court could elect to put a stop to Congress’s steady erosion of the intent and letter of the Origination Clause by deciding that wiping out every word of a House-passed bill to substitute 2300 pages of Senate text would effectively render the Origination Clause meaningless were the Court to ignore it.
Current Status of the Case. The Chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks of Arizona, and 19 House colleagues have co-sponsored H.Res. 153 on April 12, “Expressing the sense of the House of Representatives that the Patient Protection and Affordable Care Act of 2009 violates article I, section 7, clause 1 of the United States Constitution because it was a ‘Bill for raising Revenue’ that did not originate in the House of Representatives.”