Monday, May 05, 2014

It's. The. Law. Too

When Chief Justice Roberts provided the vote to uphold Obamacare (the ACA), I was conflicted over the reasoning as I weighed the defense of the act and the potential long-term implications. But did he give us both?

I was disappointed that the law was defended. I was relieved of the potential that it was established that Congress could not compel commerce under the power to regulate commerce. And I even drew a little comfort that the courts could declare revenue a "tax" even if Congress denies it is levying a tax.

But the problem is that the Constitution's origination clause (Article I, Section 7) requires revenue bills (which the ruling said it was--not a penalty) must originate in the House:

“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.”

The bill that became the ACA cannot be said to have followed this requirement. And if it is ruled that it did, the clause is toothless:

In October 2009, the House passed a bill that would have modified a tax credit for members of the armed forces and some other federal employees who were first-time home buyers — a bill that had nothing to do with health care. Two months later the Senate “amended” this bill by obliterating it. The Senate renamed it and completely erased its contents, replacing them with the ACA’s contents.

Case law establishes that for a Senate action to qualify as a genuine “amendment” to a House-passed revenue bill, it must be “germane to the subject matter of the [House] bill.”

I was familiar with the concept of "vehicle" bills from my time in the state legislature (in the LSB, not as a legislator), but even here the substitution must match the bill itself (although there is no restriction regarding house of origin). When leadership is smart, they move "vehicle" bills forward in the process just to have a germane bill to substitute if time is short and the need/desire to act on a particular subject is strong. So I'd have thought that I'd have been upset about this subterfuge at the national level.

Why the Senate did not have a vehicle bill in position to host their substitution is another issue, and would seem to be an indictment of Senate Majority Leader Reid's leadership. But he did not use a vehicle bill that satisfied the germaneness issue. Perhaps the Koch brothers are at fault.

If the issue of house of origin was an issue at the time during the passage of Obamacare, I have forgotten it. I remember being quite upset at the shredding of the legislative process in general in order to pass the bill, but not the issue of whether Obamacare is unconstitutional because the bill that established the law did not originate in the House of Representatives--as all revenue bills must.

Which means:

Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the origination clause.

So for all the heat Justice Roberts has taken from the right even as the left praised his vote, did he just get the left to bring the giant horse into the castle?

Perhaps. But the courts have failed to strike down acts that seem clearly unconstitutional before. I'm thinking of what I think was a campaign finance limitation bill that Bush 43 signed, which many conservatives considered in violation of the Constitution, and which many assumed the Supreme Court would strike down. The high court let that act go through.

So no, it isn't a slam dunk (tip to Instapundit). The fact that the act continues to be unpopular will help, however, as disturbing as the notion that opinion polls can affect the reading of the law and Constitution.

I'm guessing that if this case strikes down Obamacare on this constitutional process issue, act supporters won't be tweeting out "It's. the. law" on an hourly basis.