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Andrew McCarthy: Obamacare's Unconstitutional Origins

Tax legislation has to originate in the House; the health-care law didn’t. Of all the fraud perpetrated in the passage of Obamacare — and the fraud has been epic — the lowest is President Obama’s latest talking point that the Supreme Court has endorsed socialized medicine as constitutional. To the contrary, the justices held the “Affordable” Care Act unconstitutional as Obama presented it to the American people: namely, as a legitimate exercise of Congress’s power to regulate interstate commerce.

To sustain this monstrosity, Chief Justice John Roberts had to shed his robes and put on his legislator cap. He rewrote Obamacare as a tax — the thing the president most indignantly promised Americans that Obamacare was not. And it is here that our recent debate over the Constitution’s Origination Clause — the debate in which Matt Franck, Ramesh Ponnuru, Mark Steyn, and yours truly have probed the historical boundaries of the “power of the purse” reposed by the Framers in the House of Representatives — descends from the airy realm of abstraction and homes in on a concrete violation of law.

It is not just that the intensely unpopular Obamacare was unconstitutional as fraudulently portrayed by the president and congressional Democrats who strong-armed and pot-sweetened its way to passage. It is that Obamacare is unconstitutional as rewritten by Roberts. It is a violation of the Origination Clause — not only as I have expansively construed it, but even under Matt’s narrow interpretation of the Clause.

It is worth pausing here briefly to rehearse an argument often made in these pages before the Supreme Court ruling two summers ago. The justices’ resolution, whatever it was to be, would in no way be an endorsement of Obamacare; it would merely reflect the fact that our Constitution, designed for a free people, permits all manner of foolishness. “Constitutional” does not necessarily mean “good.” What Obamacare always needed was a political reversal in Congress. Thus, it was unwise for Republicans to become passive while hoping the justices would do their heavy lifting for them — both because it was unlikely that this Supreme Court would invalidate Obamacare and because a ruling upholding it would inevitably be used by the most demagogic administration in history as a judicial stamp of approval for socialized medicine.

Contrary to Obama’s latest dissembling, the Supreme Court’s decision is far from an imprimatur. The president insisted that Obamacare was not a tax, famously upbraiding George Stephanopoulos of the Democratic-Media Complex for insolently suggesting otherwise. Yet, the narrow Court majority held that the mammoth statute could be upheld only as an exercise of Congress’s power to tax — i.e., contrary to Obama’s conscriptive theory, it was not within Congress’s commerce power to coerce Americans, as a condition of living in this country, to purchase a commodity, including health insurance.

Note the crucial qualifier: Obamacare could be upheld only as a tax. Not that Obamacare is necessarily a legitimate tax. To be a legitimate tax measure, Obamacare would have to have complied with all the Constitution’s conditions for the imposition of taxes. Because Democrats stubbornly maintained that their unilateral handiwork was not a tax, its legitimacy vel non as a tax has not been explored. Indeed, it is because Obamacare’s enactment was induced by fraud — a massive confiscation masquerading as ordinary regulatory legislation so Democrats could pretend not to be raising taxes — that the chief justice was wrong to rebrand it post facto and thus become a participant in the fraud.

We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

If you’ve followed our recent debate, you know I’ve argued that the continuing resolution (CR) — the legislation at issue in the current congressional impasse that has partially shut down the government – violates the Origination Clause. The Senate presumed to add Obamacare spending to a House CR bill. I contend that the Origination Clause means that not only tax bills but government spending bills must originate in the House because the Clause was intended to vest the House with control over the “power of the purse.” Matt disagrees.

Our dispute over Obamacare spending in the 2013 CR, however, has no bearing on the Origination Clause analysis of the 2010 Obamacare law itself. The Affordable Care Act, the Supreme Court has held, was a straightforward tax. No theorizing about spending is necessary. Everyone agrees that tax-raising measures must originate in the House.

Obamacare originated in the Senate.

It was introduced in Congress in 2009 by Senate majority leader Harry Reid, who called it the “Senate health care bill” (a description still touted long afterwards on Reid’s website). Employing the chicanery that marked the legislation through and through, the Democrat-controlled Senate turned its 3,000-page mega-proposal into a Senate amendment. The Senate attached its amendment to a nondescript, uncontroversial House bill (the “Service Members Home Ownership Tax Act of 2009”) that had unanimously passed (416–0) in the lower chamber.

Thanks to the Supreme Court, it is now undeniable that Obamacare was tax legislation. It was also, by its own proclamation, a bill for raising revenue. Democrats maintained that the Senate proposal would reduce the federal budget deficit by $130 billion. More to the point, the bill contained 17 explicit “Revenue Provisions” — none of which was remotely related to the House bill to which the Senate proposal was attached.

Therefore, Obamacare is revenue-raising tax legislation, originated in the Senate in violation of the Constitution.

This has the Obama administration and its Justice Department scrambling. House conservatives, led by Representative Trent Franks (R., Ariz.), are pushing an Origination Clause challenge in the federal courts.

Feebly, Attorney General Eric Holder’s minions rationalize that, even if the Senate initiated Obamacare, the House can be said to have “originated” it because the lower chamber did not object to the Senate’s maneuver. This desperate flyer, though, is easily grounded. Obviously, there was no objection because the House was then under control of Speaker Nancy Pelosi and the Democrats. Either they were in on the charade, or — accepting Pelosi’s curious explanation that the bill had to be passed before anyone could “find out what is in it” — they were ignorant of the bill’s contents.

More important, though, the lack of a House objection is immaterial. While the Framers were men of great foresight, their assumption that the governmental bodies they were creating would zealously defend their institutional prerogatives did not anticipate modern progressives, for whom social engineering is a higher priority than constitutional propriety. But this ideological rationale for failing to assert the House’s prerogative does not matter because the point of the Origination Clause was to vest the power of the purse in the people. The privilege to originate spending belongs to us, not to Ms. Pelosi.

The House’s default is not a waiver by the people. Moreover, it is not even clear that then-speaker Pelosi was derelict in not raising an origination objection. After all, (a) proponents were adamant that Obamacare was not tax legislation (i.e., maybe Pelosi actually believed the president); and (b) Pelosi indicated that she was in the dark about the legislation’s contents (i.e., waivers of constitutional prerogatives have to be knowing and voluntary — rights cannot be forfeited in ignorance).

Representative Franks has introduced a resolution (H.R. 153) expressing the sense of the House of Representatives that the Obamacare legislation clearly violated the Origination Clause. The measure is gaining momentum. As it rapidly picks up co-signers, the resolution should materially advance the cases filed against Obamacare, including one to be argued this fall in the D.C. Circuit federal appeals court. After all, if a statute violates the Origination Clause, it is a nullity — invalid from the moment of enactment.

Nevertheless, Republicans should not make the same mistake they made during prior legal challenges to Obamacare. This is not a time for leaders once again to sit idly by with fingers crossed, praying that judges do the heavy lifting for them. The legerdemain that characterized Obamacare’s passage, coupled with its patent lack of constitutional legitimacy, should stiffen the resolve of the House to refuse funding — as it is the House’s prerogative to do.

Once again, the president is not telling the truth about Obamacare. The Supreme Court did not endorse it. The Supreme Court said it could only conceivably be sustained as a tax. It still had to pass the Constitution’s tests for valid taxation. It failed.

Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.

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Posted: October 5, 2013 Saturday 04:00 AM