Forget about the exchange litigation for the moment. Last month, I wrote about the other pending existential challenge to the ACA: the lawsuit claiming that it is unconstitutional because its enactment violated the Origination Clause. I said that nothing was likely to come of the challenge, and that nothing should. Today, a unanimous D.C. Circuit panel released an opinion saying pretty much the same thing.
The controversy turns on the procedure that Congress used to enact the ACA. The bill that became the ACA was first passed in the House as the “Service Members Home Ownership Tax Act of 2009.” It had nothing to do with health care. When the bill came to the Senate for consideration, its language was stripped out and replaced with what became the ACA.
The plaintiff here—an Iowa artist and part-time National Guard employee named Matt Sissel—argued that this “shell bill” procedure violated the Origination Clause, which says that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” The ACA raised revenue and didn’t really originate in the House. So Sissel thinks it’s unconstitutional.
The D.C. Circuit, in an opinion by Judge Rogers, disagreed. Rogers’s analysis hinges on whether the ACA is a “Bill for raising Revenue.” She notes—correctly—that “the Supreme Court has held from the early days of this Nation that ‘revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.’”
The distinction, Rogers explains, turns on the statute’s purpose. Is it mainly about raising revenue? If so, the statute had to originate in the House. But if it’s about something else, it doesn’t matter where the bill came from. Judged under that “purposive approach,” Rogers reasoned that the ACA isn’t mainly about raising revenue. It’s about extending insurance to the uninsured. As such, the Origination Clause just doesn’t apply to the ACA.
That should be the end of this litigation. Yes, Sissel will probably ask the Supreme Court to hear his case. Yes, it’s remotely possible the Court will be more sympathetic to his Origination Clause claim, much as it proved more sympathetic to the constitutional arguments over the individual mandate than many predicted. But I doubt the Court will have any interest in hearing the case. As I explained earlier:
The litigation over the individual mandate mobilized a broad social movement around widely shared and deeply personal objections to a purchase mandate that, to many, epitomized government overreach. The avid support of the Republican Party, as Jack Balkin has emphasized, gave an institutional imprimatur to that movement and made constitutional innovation at the Supreme Court much more likely.
In contrast, the Origination Clause challenge hasn’t mobilized the public at all. Maybe that’s because the purported constitutional violation seems like a technicality. Maybe it’s because the Seventeenth Amendment, which provides for the direct election of senators, makes both houses of Congress directly accountable to the public. Or maybe it’s because people are tired of the incessant wrangling over the supposed unconstitutionality of Obamacare.
Whatever the case may be, the Supreme Court isn’t likely to craft a novel constitutional holding to invalidate a statute that, just two years ago, it upheld against a more substantial constitutional challenge.
This case is over, and it should be over. Now we can all get back to worrying about the exchange litigation.