“Obamacare” looks increasingly inevitable, but one lawsuit making its way through the court system could pull the plug on the sweeping federal health care law.
A challenge filed by the Pacific Legal Foundation contends that the Affordable Care Act is unconstitutional because the bill originated in the Senate, not the House. Under the Origination Clause of the Constitution, all bills raising revenue must begin in the House.
The Supreme Court upheld most provisions of the act in June, but Chief Justice John G. Roberts Jr. took pains in the majority opinion to define Obamacare as a federal tax, not a mandate. That was when the Sacramento, Calif.-based foundation’s attorneys had their “aha” moment.
“The court there quite explicitly says, ‘This is not a law passed under the Commerce Clause; this is just a tax,’” foundation attorney Timothy Sandefur said at a Cato Instituteforum on legal challenges to the health care act. “Well, then the Origination Clause ought to apply. The courts should not be out there carving in new exceptions to the Origination Clause.”
The Justice Department filed a motion to dismiss the challenge in November, arguing that the high court has considered only eight Origination Clause cases in its history and “has never invalidated an act of Congress on that basis.”
The challenge citing the Origination Clause isn’t the only lawsuit against Obamacare, but it is the only one that has the potential to wipe out the entire act in one fell swoop. Other claims, notably the freedom-of-religion cases dealing with the birth control requirement, nibble at the fringes but would leave the law largely intact.