Origination Clause Challenge Backed By 40 Members of the House. Is it still “Off the Wall”?

November 17th, 2013

Last year, shortly after PLF filed the origination clause challenge, Jack Balkin opined on the lack of support to the suit by the Republican Party. Jack noted that without this support, this legal argument will not go from “off the wall” to “on the wall.”

My bottom line is that PLF’s arguments are likely to fail under existing law. But, I also point out, that is hardly the end of the matter. Most constitutional scholars thought that the Commerce Clause arguments in NFIB v. Sebelius were implausible, and they garnered five votes on the Supreme Court. The events of the last two years should have taught us that the considered judgments of legal academics and legal professionals mean far less than we would like to think they do when a major political party forcefully takes a stand on a key constitutional question.

The real question is not what legal academics think. It is whether the Republican Party, conservative media, and conservative intelligentsia are up for another all-out assault on Obamacare. If they are, then the PLF’s arguments will probably move quickly from “off the wall” to “on the wall;” and if the PLF can find a single federal district court to agree with them, it will be–to quote the immortal philosopher Yogi Berra–like deja vu all over again.

On the other hand, if the Republican Party is uninterested in getting behind these new constitutional objections so soon after NFIB v. Sebelius, the chances that the PLF’s theory will succeed are greatly reduced.

You probably haven’t heard much about the Origination Clause challenge, but I have been following it (along with all things Obamacare). In the case of Sissel v. HHS, D.D.C. granted summary judgment in favor for the government (Update: D.D.C. denied the motion to dismiss). The case is currently on appeal to the D.C. Circuit.

One important development, which speaks directly to Jack’s point, is an amicus brief filed on behalf of 40 members of the House. This is far from the unanimous legislative support of the commerce clause challenge. And notably, none of the House leadership has joined, but it is still significant. (In case you are wondering, there is no need for Senate support because the Senate has no involvement in the origination clause).

If you asked me several months ago about the likelihood of a court striking down the law on origination clause grounds, I would not have pegged it very high. But the events of the last few month have altered my thinking. The events of the last week have crystalized it. In light of massive, and widespread unpopularity, and tepid opposition from vulnerable Democrats, the thinking has changed. Considering the President decided to unilaterally waive one of the most significant features of the law–and wait till he delays the collection of the tax/penalty–the legitimacy and finality of this law is far from settled. If the law was settled (as everyone wanted to tell us), there would be no need for waivers.

The D.C. Circuit is not full of shrinking violets. Although Judges Kavanaugh and Silberman upheld the ACA, a panel of the Court found the President’s recess appointment power unconstitutional. Factoring in the widespread opposition, and dissatisfaction with this law, and an increasing level of support from the Republican party, this case may yet have legs.

Let’s consider the timing. As it stands now, the impact of the law is effectively delayed until January 1, 2015 (for those who have not received cancellation notices). If CADC renders a decision by the spring, it can go up for cert by the long conference in September, 2014. ┬áIt is entirely feasible to get a decision before the brunt of the law kicks in. Right around a midterm election in November 2014, where the Democrats (as is the case for midterms in the second term of an incumbent) are likely to take a drubbing, on the basis of stopping Obamacare.

And just think. Perhaps Chief Justice Roberts can get a mulligan, when there is not a presidential election around the corner. Or maybe he’ll decide because it’s not actually a tax, the origination clause doesn’t apply. Weirder things have happened!