10 Months Later, D.C. Circuit Finally Denies Petition for Rehearing En Banc in Sissel Origination Clause Challenge

August 7th, 2015

Sissel v. HHS presented an origination clause challenge to the ACA’s individual mandate. On July 29, 2014, a panel of the D.C. Circuit rejected the challenge, finding that the mandate was not a revenue-raising provision, and therefore the origination clause was not applicable. A petition for rehearing en banc was filed on October 6, 2014. That petition was pending for 10 months, and finally, today, the D.C. Circuit denied rehearing en banc.

Judges Rogers, Pillard, and Wilkins–who authored the panel decision–wrote a statement concurring in the denial of rehearing en banc. Judges Kavanaugh, Henderson, Brown, and Griffith, dissented from denial of rehearing en banc.

The Kavanaugh dissental, however, would not have given a victory to Sissel. Rather, he would have found that the mandate did in fact raise revenue, but that it complied with the origination clause. He would have granted re-hearing only to correct the analysis, but not the outcome.

So in concluding that the Affordable Care Act complied with the Origination Clause, the panel opinion reached the right bottom line, but relied on what I see as a faulty rationale. Does such a case still warrant en banc review? Oftentimes no, but here yes. The panel opinion sets a constitutional precedent that is too important to let linger and metastasize. Although no doubt viewed by some today as a trivial or anachronistic annoyance, the Origination Clause was an integral part of the Framers’ blueprint for protecting the people from excessive federal taxation. It is true that the Framers’ decision to grant the Senate a broad amendment power gave the Origination Clause less bite than it otherwise might have had. But the Clause nonetheless has been important historically and remains vital in the modern legislative process. By newly exempting a substantial swath of tax legislation from the Origination Clause, the panel opinion degrades the House’s origination authority in a way contrary to the Constitution’s text and history, and contrary to congressional practice. As a result, the panel opinion upsets the longstanding balance of power between the House and the Senate regarding the initiation of tax legislation. Therefore, I would grant rehearing en banc. In my respectful view, the en banc Court should vacate the panel opinion and rule for the Government on the ground that the Affordable Care Act originated in the House and thereby complied with the Origination Clause.

The 10-month delay suggests there was something going on behind the scenes here. If all the judges agreed that Sissel would ultimately lose, it isn’t clear why this took so long to get the opinion out.