The New York Times is lawyering again in defense of the Affordable Care Act in an editorial tendentiously titled More Specious Attacks on Reform. Hence the tendentious title of this post. In reality, legal arguments typically have two sides and dismissing one as specious (or frivolous) is almost always unwarranted and undermines the credibility of the critic, in this case the editorial writer of the Times. The editorial gets off on the wrong foot here:

The suit was brought by a conservative legal foundation on behalf of an Iowa artist who does not want to buy health insurance or pay a fine, as the law requires.

Wait up there. In our challenge to the ACA, we contended that the “individual responsibility requirement” enforced by a “penalty” was an unprecedented and unconstitutional expansion of the power of Congress to “regulate commerce” among the states. In his swing vote opinion, Chief Justice Roberts agreed that this would indeed be unconstitutional, but revised the statute by giving it a “saving construction” in which the “requirement” was turned into an option to buy insurance, and the “penalty” was converted from a fine to a tax. But, like others including the administration, the Times cannot quite stick to the script here. And I don’t blame it too much. I agree with the eight Justices who thought this was a requirement enforced by a penalty or fine (but who then split 4-4 on whether it was within the power of Congress to impose).

When the Times turns to the allegedly “specious” Origination Clause challenge, it merely picked up a simplified version of the government’s argument:

The act started out as a House bill to modify tax credits for certain first-time home buyers and increase the estimated tax payments owed by corporations. That bill passed the House by a vote of 416 to 0 in late 2009. When it got to the Senate, the text and title of the bill were struck and replaced with the text and title of the Affordable Care Act. That version of the bill passed the Senate in late 2009 and then the House in March 2010, when it was signed into law by President Obama.

So far so good, except this does skip over the fact that the House bill raised no revenue at all. It increased tax credits (thereby lowering revenue) and changed the timing and amount of certain estimated tax payments and penalties for nonpayment, which the courts have ruled are not the same thing as the underlying taxes themselves. So like most everything else surrounding the adoption and implementation of the ACA, the Senate messed up and chose a non-revenue raising House bill to “amend” so as to comply with the Origination Clause.

The Times then continues:

The plaintiff’s lawyers argue that this process violated the “origination clause” in Article 1 of the Constitution, which says “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.” They contend the Senate did not merely “amend” the original House bill because the health care reform amendment was not germane to the original bill.

A federal district judge rightly rejected this argument on two grounds last year. First, the reform law is not primarily a revenue-raising measure, though it may incidentally raise some revenue through a fee, called a “shared responsibility payment,” on people who refuse to take out health insurance.

With sincere kudos to the Times for including the actual wording of the text, this just isn’t right. The very fact that the Senate went to the trouble of “amending” this House bill shows that the Democrats in the Senate believed — correctly — that the ACA was indeed a revenue bill. Of course it was, as it contained 20 or so new taxes, on a variety of things and activities, the revenue from which goes into the treasury’s general coffers. Indeed, the revenue raised by these taxes was to compensate for the costs of other provisions to hold the net cost of the ACA under a billion trillion dollars.

No doubt the Senate did not believe that the penalty enforcing the individual insurance mandate was a tax. That argument did not get devised until after the fact. But the Supreme Court has told us that it was, so we have an official ruling that it too was a tax to add to all the other taxes in the bill. If a gigantic bill containing numerous taxes raising revenue to pay for other measures is not a “bill for raising revenue” because it also includes many other non revenue provisions, then the Origination Clause is a mere drafting rule, rather than a constitutional requirement that taxes be originated in the House of Representatives and not in the Senate. Is such a claim “specious”?  Again, the Senate Democrats thought it was a bill for raising revenue or they wouldn’t have employed the “shell bill” or “gut and replace” maneuver to comply with the Origination Clause.

Second, even if the bill could be construed as a revenue-raiser, it originated in the House. The judge ruled that past Supreme Court decisions allowed the Senate to substitute the entire text and title of a bill and left it to Congress to determine in individual cases whether that was acceptable. In this case, no one in the House challenged the act as a violation of the origination clause.

This is a misstatement of prior Supreme Court cases. The Supreme Court has never ruled that this “completely gut and entirely replace” “shell bill” procedure is a proper “amendment” that satisfies the Origination Clause, though it has told us that violations of the Origination Clause are as justiciable as any other constitutional violation. Again, if striking every last word of an unrelated House revenue bill satisfies the requirement that the House originated bill be amended, then the Origination Clause is rendered a nullity.

Courts do not have to get into the weeds about how much a bill needs to be retained to make the Senate bill a legitimate “amendment,” to conclude that replacing all of the House bill is a specious subterfuge to circumvent the Origination Clause. Which everyone involved knows it was!  The fact that the Democratic majority in the House did not object to this unconstitutional incursion into the powers of the House in no way “waives” the constitutional violation, as the Origination Clause is meant to protect the people, not members of Congress.

To sum up, the government (and the New York TImes) claims that:

  1. The Senate bill that raised myriad taxes that flow to the Treasury was not a bill for raising revenue;
  2. The House bill that raised no taxes for the Treasury was a bill for raising revenue; and
  3. The Senate bill that replaced every single word of the House bill with the 2700 pages of the ACA was an “amendment” of the House bill.

Speciousness anyone? During the debate over the constitutionality of the individual insurance mandate, I repeatedly insisted that the odds always favor the courts upholding whatever Congress does. But predicting what courts will do is different than assessing the merits of a constitutional argument. This argument has merit, and if the government’s theory is accepted, then the Origination Clause will join the other lost clauses in the “Lost Constitution.” That will be a bad day for the Constitution.

[For those wish to read the long-form legal argument, the Pacific Legal Foundation briefs in Sissel v. HHS are here. Briefs have also now been filed in a second Origination Clause appeal in the Fifth Circuit, Hotze v. Sebelius. You can read the petitioner’s brief here. And my former co-counsel in the NFIB challenge, Greg Katsas and his colleagues at Jones Day have filed an excellent amicus brief on behalf of Eric Cantor and Kevin McCarthy available here.]