On Friday, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Association of American Physicians and Surgeons v. Sebelius, rejecting several challenges to the constitutionality or implementation of the Patient Protection and Affordable Care Act (PPACA). Among the claims made by AAPS is that Congress violated the Constitution’s Origination Clause in enacting the PPACA. Specifically, AAPS alleged that insofar as the PPACA contained revenue-raising measures, such as the individual mandate (recognized as a “tax” by the Supreme Court in NFIB v. Sebelius), the bill had to originate in the House of Representatives. This is a potential problem for the PPACA because, although the PPACA utilized a House bill number, the substance of the bill was produced in the Senate.
The Origination Clause argument forces courts to choose whether it is enough that Congress observes simple formalities — using a bill passed by the House as an empty shell for a bill drafted in the Senate — or whether Congress must also fulfill the substance of constitutionally mandated procedural rules. The point of the Origination Clause is that the House of Representatives would provide a greater check on the abuse of the taxing power, as the House is closer to the people: House districts are smaller, representatives stand for election every two years and, at the time of the founding, only the House was subject to popular election. If the Senate can make an end-run around the Origination Clause by substituting its own bill for something unrelated passed by the House, the clause does not serve its intended purpose. On the other hand, courts are understandably reluctant to look under the hood and scrutinize legislative procedures.
The D.C. Circuit did not have to address the substance of the Origination Clause challenge in AAPS v. HHS as it concluded this claim had been waived below. This is not the end of the issue, however. The Pacific Legal Foundation also raised this claim in another suit (discussed by my co-blogger Randy Barnett here and here), and another Origination Clause challenge remains pending before the D.C. Circuit [Sissel v. U.S. Dep’t of Health & Human Svcs., No. 13-5202 (D.C. Cir.)).
As for the merits of the claim, what makes the Origination Clause argument difficult is that Congress observed the Origination Clause in form if not in substance. The Senate took a bill that had passed the House, stripped out its contents, and inserted the PPACA so that it could claim fealty to the Constitutional requirement. This approach clearly circumvents the purpose of the rule. So, would a Court throw out portions of the PPACA on such grounds? I doubt it. Although the Supreme Court has suggested its willingness to consider such arguments before, I am skeptical that federal courts are likely to scrutinize how legislation gets produced. Thus, for example, the D.C. Circuit has turned away challenges to federal legislation that allegedly violated the enrolled bill rule, refusing to second-guess the legislature’s certification that a given bill satisfied the relevant constitutional requirements. When a federal court reaches the merits of an Origination Clause challenge, I would expect a similar outcome, even if this means the Senate may continue to play fast and loose with the origination requirement. Utilizing shell bills may make a mockery of the rule, but it’s not the sort of thing that is likely to be overturned in federal court.