George Will Discovers "Obamacare's Doom" In Routine Bipartisan Senate Procedure


Washington Post columnist and National Review Online contributor George Will has found yet another legally dubious lawsuit challenging the Affordable Care Act (ACA) to champion.

At issue in this new lawsuit, which will be heard by the D.C. Circuit Court of Appeals on May 8, is whether the ACA was passed in violation of the "Origination Clause" of the U.S. Constitution. Article I, Section 7 says that "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."

Will, who apparently never met a far-fetched anti-ACA lawsuit he didn't like, dedicated his NRO column on "Obamacare's Doom" to this latest right-wing challenge. Because the Supreme Court ultimately held that the individual mandate of the ACA -- a bill drafted in the Senate -- was a tax, Will is convinced that "this surely makes the ACA a revenue measure" and therefore runs afoul of the Origination Clause. Will continued:

In June 2012, a Supreme Court majority accepted a, shall we say, creative reading of the ACA by Chief Justice John Roberts. The court held that the penalty, which the ACA repeatedly calls a penalty, is really just a tax on the activity -- actually, the nonactivity -- of not purchasing insurance. The individual mandate is not, the court held, a command but merely the definition of a condition that can be taxed. The tax is mild enough to be semi-voluntary; individuals are free to choose whether or not to commit the inactivity that triggers the tax.

The "exaction" -- Roberts's word -- "looks," he laconically said, "like a tax in many respects." It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.

Did it, however, originate in the House? Of course not.


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.

But Will ignores some key facts about the legislative process -- not to mention one-hundred-year-old Supreme Court precedent. Will's Obamacare doomsday device is actually a routine and bipartisan Congressional practice: the use of a "shell bill."

These bills, utilized by the Senate when it cannot rely on the House to pass out a revenue-raising bill, take an existing House tax bill and substitute a Senate version as an amendment. These "shell bills" are one more long-standing practice in a legislative branch built upon self-written rules and tradition, and are a common device used by lawmakers on both sides of the aisle as an exercise of the amendment provision of the Origination Clause.

As Slate's John Dickerson reported in 2009, while the ACA was still being legislated, Republicans weren't that "worked up" over the Democrats' shell bill, since "both Republicans and Democrats have used the trick while in the majority." Moreover, according to Dickerson, the meaning of "revenue bill" may not be quite as cut and dry as Will might think:

The definition of what constitutes a "revenue bill" is still up for grabs, since the founders left the definition so vague. Over time, the courts and House custom have determined the Senate can perform this switcheroo as long as the Senate does not initiate bills whose primary purpose is raising funds for the general operation of the federal government. The House, often finding the parliamentary procedure in its interest, has objected only a little more than once a year over the last 20 years. Both Republicans and Democrats have used the trick while in the majority. Even in this season of hair-trigger umbrage, Republican Senate leadership aides aren't very worked up that Democrats are going to invoke this standard procedure.

And Republicans certainly could have objected to the Democrats' decision to amend the tax modification bill that originated in the House. The House can object to apparent violations of the Origination Clause by sending the offending bill back to the Senate with a "blue slip" indicating the problem. In the case of the ACA, the House never objected to the Senate's amendment.

Though it may be too soon to say how the court of appeals will rule, this new lawsuit does not have legal precedent on its side either. According to Yale law professor Jack Balkin, "under existing law" this challenge cannot survive on the merits. Moreover, says Balkin, this is just another in a long line of right-wing challenges to the ACA that seem to value case law less than the approval of "Republican politicians, right-wing talk radio, and Fox News." From Balkin's debunking of the legal challenge in The Atlantic:

[The challengers have] to show that the Senate can't amend a House bill that raises revenue and substitute a different bill on a different subject. The Supreme Court's cases, however, say that the Senate can do precisely that.

In Flint v. Stone Tracy Co. in 1911, the Senate took a House tariff bill with an inheritance tax, jettisoned the inheritance tax, and substituted the nation's first corporate income tax. The Court said that was perfectly fine: "The bill having properly originated in the House, we perceive no reason in the constitutional provision relied upon why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject-matter of the bill, and not beyond the power of the Senate to propose." The Court didn't explain why the addition of a corporate income tax was germane to a tariff bill or to an inheritance tax, other than the fact that all three were provisions "for raising Revenue" under the meaning of the Constitution.

Perhaps the [challengers] could use this language to argue that the health care bill wasn't germane to the original House bill -- the latter was about changing income tax rules for service members. But three years after Flint, in Rainey v. United States (1914), the Supreme Court allowed the Senate to add an excise tax to a House revenue measure where there was no connection between the two at all other than the fact that both provisions were taxes.

In Rainey, the Court made clear that it would not inquire into the germaneness of the Senate's amendments. Quoting a lower court decision, it explained that "the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated act of Congress, it is not for this court to determine whether the amendment was or was not outside the purposes of the original bill."

If the standard is legal precedent and not appeal to Fox News, it looks like Will's quest for the perfect lawsuit to destroy his most obstinate foe -- affordable healthcare for all -- continues. 

Photo via Flickr/Penn State under a Creative Commons License.
Posted In
Health Care, Health Care Reform, Justice & Civil Liberties
National Review Online
George F. Will
Courts Matter
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.