Keep an Eye on Sissel


By Hadley Heath

Remember when the Supreme Court ruled that the individual mandate penalty is actually a tax?  

Well, this ruling might have created more constitutional problems than it solved.

A lesser-known case filed in 2010 - Sissel v. DHHS - challenged the law on Commerce Clause grounds (original complaint here).  Like many other individual-mandate cases, Sissel was put on hold during the Supreme Court hearing of Florida/NFIB in 2012.

But Pacific Legal, the nonprofit watchdog handling the litigation, amended the complaint this July to include a different challenge.  This time, the case is challenging ObamaCare on Origination Clause grounds. The Patient Protection and Affordable Care Act (ObamaCare's legal name) originated in the Senate (well, sort of). But Article I, Section 7 of the Constitution requires that revenue-raising provisions originate in the House of Representatives. 

This case is finally getting the attention it deserves. Last month, Forbes writer Chris Conover summarized the stakes of this case on the Apothecary blog:

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.

The amended complaint was filed on July 5, 2013. Later this month (October 24) the Appellants' opening brief is due. Keep an eye on this case as it moves forward.


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