Pacific Legal Foundation Asks Supremes to Review Origination Clause Challenge to Obamacare

Steven D. Schwinn, John Marshall Law School

The Pacific Legal Foundation filed a  cert. petition yesterday, asking the Supreme Court to review a D.C. Circuit ruling that the individual mandate in Obamacare didn't violate the Origination Clause. We posted on the D.C. Circuit ruling here.

The Origination Clause, Article I, Section 7, Cl. 1, says that "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." Because the Court upheld the individual mandate under Congress's taxing power, the logic goes, the ACA was a "bill for raising revenue." And while a bill that ultimately became Obamacare originated in the House, the Senate gutted that bill and replaced it with the ACA. The Pacific Legal Foundation argues that this violated the Origination Clause.

The D.C. Circuit flatly rejected the argument. It said, in short, that the individual mandate wasn't a "bill for raising revenue" for Origination Clause purposes, even if Congress enacted it under its taxing authority.

Here are the QPs in the cert. petition:

1.    Is the tax on going without health insurance a "Bill[] for raising Revenue" to which the Origination Clause applies?

2.    Was the Senate's gut-and-replace procedure a constitutionally valid "amend[ment]" pursuant to the Origination Clause?