Does Obamacare violate the U. S. Constitution’s origination clause? The answer is no… and yes.
Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs then sued, arguing that the tax (or penalty) is void for violating the Constitution’s origination clause. The origination clause says, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
Plaintiffs have argued that Obamacare originated in the Senate, and the tax/penalty is therefore void. Thus far, those lawsuits have been unsuccessful, but they may go to the Supreme Court next year.
H.R. 3590 initially was a six-page bill addressing 1) an income tax credit, and 2) dates for paying corporate income tax. The bill probably would have had little revenue effect. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and sent it to the House, which likewise approved it.
As a constitutional scholar, I do my best to conduct objective research. And I insist on reporting my results whether I like them or not. In January, I began to research whether Obamacare violates the origination clause. The answer turns out to be both “yes” and “no.”
There are several issues here: First, what is the meaning of “Bill for raising Revenue?” And second, was the original H.R. 3590 a “Bill for raising Revenue?”
If the second answer is “yes,” then the Senate had power only to “propose or concur with Amendments as on other Bills.” What did the Founders mean by an “Amendment?” Was the complete replacement of the text of H.R. 3590 an “Amendment?”
To find the answer, I looked far beyond the usual records that everyone else cites (such as the Federalist Papers). I also examined 50 years of records of the British Parliament, where the origination rule started. I studied early state constitutions, early state and congressional legislative records, and articles and books on 18th century legislative practice. Here are my conclusions:
» The constitutional phrase “Bill for raising Revenue” means a change in the tax code that can’t be justified by any constitutional power other than the power to tax. The initial H.R. 3590 qualified, even though it didn’t raise money.
» H.R. 3590 properly arose in the House of Representatives.
» The Senate had power to propose “amendments” to H.R. 3590. An amendment can take the form of substituting new language for old. I found several examples in Founding-era legislatures.
» But any “Amendment” (including a substitution) has to address the subject matter of the original bill.
» For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of H.R. 3590’s taxes. Because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other taxes, such as the medical equipment tax.
» On the other hand, because the initial H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.
Accordingly, I concluded that the origination clause lawsuits are attacking the wrong part of the law. Under the origination clause, the invalid portions of Obamacare are not its taxes, but its many appropriations and regulations.
Legal challenges to the federal government’s health care overreach need to be adjusted accordingly.
Retired University of Montana law professor Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute, a free-market think tank in Denver, and author of The Original Constitution: What It Actually Said And Meant
