One of the prudential considerations in the origination clause challenge to the Obamacare mandate is that Congress has used the “shell bill shell game” fairly often. If the Court strikes down the Obamacare mandate, because it is an unconstitutional tax that originated in the Senate, many other laws would have to fall.
Justice Scalia’s opinion in Noel Canning, joined by the Chief, Thomas, and Alito, dismisses those concerns, with glee:
Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—exceeded the bounds of Congress’s authority under the Constitution. 462 U. S., at 957–959. We did not hesi tate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945. Just the opposite: We said the other branches’ enthusiasm for the legislative veto “sharp ened rather than blunted” our review. Id., at 944. Like wise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress sur rendered its authority by its own hand.” Clinton, 524 U. S., at 451 (KENNEDY, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).
Perhaps the Congress’s “enthusiasm” for the shell bill will “sharpen” the Court’s review. Stay tuned.
Update: Some thoughts from Nick Bagley.