Among constitutionalists, much hope has been invested in legal challenges based on two separate strains of legal theory. One approach seeks to bring about an implosion of the Affordable Care Act by stripping out federal tax credits to fund premiums for low income applicants; those credits are authorized in States that set up exchanges, but not in the 36 States that did not do so. An IRS rule-making extended the credit in those States despite the lack of authorization for such an extension. I have previously posted on two recent, conflicting decisions addressing this approach.
Neither a Nation nor its people, nor their hopes, aspirations, dreams, labors or relationships should be governed by the whim of gamesmanship. Yet, with courts at the crux of decisions about the legality of laws like Obamacare, crucial decisions often resemble a group of judges arguing over number placement in Sudoku or attempting a “group solve” on the daily crossword. Not to put too fine a point on it, attorneys whose careers depend on appearing before the Supreme Court and federal appellate courts understand how these word games are played and craft their arguments to the tune of such judicial gamesmanship.
The appeals court concluded, however, that even though the BILL ORIGINATED IN THE SENATE and even though the BILL IMPOSED A TAX, it was not, as the Origination Clause language states, a "bill for raising Revenue." The court concluded that, while it was true that the tax would, in fact, raise revenue for the federal government coffer, the purpose of the entire Act, and the purpose of the mandate's tax, was, rather than raising revenue, to address the policy and law on health care insurance in the
Clever and conclusive, the decision abides what it must, the Supreme Court's conclusion that the penalty for failing to purchase insurance is a tax, admits what it cannot deny, that the bill originated in the Senate rather than the House and that it imposes a tax rather than a penalty, and then claims a ground of construction of the Constitution allowing it to dispose of Sissel's claim.
For now, it would seem the Origination Clause challenge to the individual mandate under Obamacare is in trouble.