Patterico's Pontifications


D.C. Circuit Upholds ObamaCare Against Origination Clause Challenge

Filed under: General — Patterico @ 7:41 am

I told you about the Origination Clause challenge in this post. The basic idea is that, ObamaCare being a tax, the Constitution requires it to “originate” in the House:


The Senate got around it by using a “shell bill” process, which is common. The Senate takes a bill from the House and amends it to add whatever tax they want to add. The main difference here, I believe, is that the shell bill passed in the House from which ObamaCare emerged was not a bill for raising revenue. Usually, the shell bill is.

No matter. The D.C. Circuit (the same court that ruled for the good guys in Halbig, though not the same judges) has upheld ObamaCare against the Origination Clause challenge. Their reasoning? The primary purpose of the PPACA was not to raise revenue, and under Supreme Court precedent, that is apparently what matters.

The D.C. Circuit giveth and the D.C. Circuit taketh away.

This won’t go anywhere in the Supreme Court, by the way. Justice Scalia is on record as saying that, if Congress tells you the bill originated in the House, then it originated in the House, regardless of where it actually originated. I find that reasoning puzzling, but he does not sound likely to waver. There will not be five votes to overturn this ruling.

You can pretty much write the Origination Clause out of the Constitution at this point. In that state of exile, the Clause has a lot of company.

14 Responses to “D.C. Circuit Upholds ObamaCare Against Origination Clause Challenge”

  1. At this point, ‘The Constitution’ is little more than an excuse for the appellate judiciary and their auxilliaries in the legal professoriate and public interest bar to impose their will. We would be better off were we like Israel or Great Britain – with a body of constitutional law but no charter superordinate to any other piece of legislation. Let’s blow it up.

    Art Deco (ee8de5)

  2. The Constitution gives the government power. It doesn’t limit government power. I’m pretty sure that’s how those that sit in government see the situation.

    Dejectedhead (a094a6)

  3. Scalia’s position makes sense to me. I believe his contention is that the only party with standing to dispute where a bill originated is the House itself. If the House states that it originated a bill and the Senate agrees, who can really argue otherwise? I don’t think Scalia agrees with the slight-of-hand being used by Congress but simply feels the Court can’t dictate to Congress how to arrange its own furniture. This is a good example of how there are limits to how perfectly we can button up things in this world. Our form of government only works if all (or at least most) of the stakeholders act in good faith.

    Mark Johnson (61d0de)

  4. “Our form of government only works if all (or at least most) of the stakeholders act in good faith”.
    Mark Johnson (61d0de) — 7/30/2014 @ 9:09 am

    I am reminded of John Lithgow’s performance on SNL:

    John: Acting!

    SNL player: Genius!

    John: Thank you!

    felipe (960c75)

  5. The Origination Clause can only be enforced if a bill has SB in front of it and is largely about raising taxes. Otherwise not.

    I believe the Founders, or the public at the time, wanted tax bills to have a special status and originate from “the people” not from “the elite” and this is what they tried. Didn’t work.

    It would take a Constitutional Amendment now to make anything of the sort stick, e.g. “All bills containing a net increase in taxes must pass each house by 60%.” Not that that will happen.

    Kevin M (131754)

  6. Mark,

    I disagree; the people taxed have standing if the bill originated in the Senate. But they do NOT have standing to challenge Congress’s assertions regarding that fact. If it passes as HRxxx it’s OK.

    Kevin M (131754)

  7. Our future is so bright…

    in_awe (7c859a)

  8. Add this to Slaughterhouse, and Wickard, as another milestone (or would that be a millstone?) on our journey away from a Republic.
    With a few more ruling like these, President Stompyfoot won’t have to worry about impeachment even after he cancels the ’16 election.

    All together now (to the stirring tune of “Duvalier, Leader of the New Haiti”):
    Obama, Leader of the New Ameriki, President for Life!

    askeptic (efcf22)

  9. All American’s have standing before the Supreme Court under Rule-7.62 –
    someday the Justices will understand that.

    askeptic (efcf22)

  10. 4-
    It is wholly inadequate to the government of any other.”
    – John Adams

    askeptic (efcf22)

  11. The people always have standing for violations of the Constitution, its just courts hate when peons question government’s illogical distinctions “ITS NOT A PRIMARY PURPOSE, DUH” so they use standing to keep people out of courts. One of the many ways courts play games to prop up the government.

    Patrick Henry, the 2nd (ea3541)

  12. The Origination Clause relates to the internal workings of Congress during the legislation-passing process. Justice Scalia probably thinks, and if so I agree, that those internal processes ought not be subject to judicial review, lest the judicial branch usurp the proper role of the legislative branch. Once a bill is passed by Congress — with Congress having the say on when that is — and either signed by the Executive or his veto overriden, then that’s another story.

    Justice Scalia’s (presumed) position, and mine, aren’t based on a respect for this particular Congress as a whole, nor the particular Senate and House that passed Obamacare. But the fix for Congress’ internal problems, including its telling of lies and even, within a wide boundary, its abuse of its constitutional responsibilities and prerogatives, resides with the voters, not with the executive or judicial branches.

    Beldar (fa637a)

  13. Beldar, you are correct as far as you go. But when the government goes to great lengths to assure that voter fraud can succeed while being almost impossible to prove, then how are the voters supposed to have any faith in the system? Many people don’t bother to vote because they believe the fix is in and their votes don’t really count anyway. At what point do you say that the government is the problem and that no portion of the government is the slightest bit interested in holding the other parts of government accountable?

    In other words, the system is broken, there is no desire amongst those tasked with policing the actions of the government and the government at all levels is doing everything it can to take the power away from the people. If the courts are not willing to require the other two branches of government to obey the laws, then what reason do any of us have to obey any laws at all?

    Easy Target (3e5d1d)


    We have to obey the law. It’s the Regime and its preferred clients who are exempt because Special.

    Art Deco (ee8de5)

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