A week after a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld a conservative challenge to the Affordable Care Act, a different panel of the same court on Tuesday unanimously rejected another avenue of attack.
In Sissel v. U.S. Department of Health and Human Services, the three-judge panel held that the health insurance law did not violate the Constitution’s origination clause, which holds that all bills raising revenue must originate in the House of Representatives.
Matt Sissel, represented by the Pacific Legal Foundation, argued that the health insurance legislation—which the Senate inserted in a gutted House bill in 2009—was a revenue-raising tax bill. Passage of the legislation violated the origination clause because the tax—in the form of the individual requirement to purchase insurance—started in the Senate and not in the House, he argued.
Judge Judith Rogers, joined by judges Cornelia Pillard and Robert Wilkins, held that because the revenue raised was incidental to the main aim of the challenged law, the requirements of the origination clause did not apply.
In interpreting the clause, Rogers wrote, the U.S. Supreme Court has held “from the early days of this nation” that revenue bills levy taxes in the strict sense of the word, and are not bills approved for other purposes that may incidentally create revenue.
Following the high court’s 2012 decision upholding the law in National Federation of Independent Business v. Sebelius, Rogers said, “it is beyond dispute that the paramount aim of the Affordable Care Act” was to increase the number of Americans covered by health insurance and decrease the cost of health care.
“Where, as here, the Supreme Court concluded that a provision’s revenue-raising function is incidental to its primary purpose, the origination clause does not apply,” she said. “The analysis is not altered by the fact that the shared responsibility payment may in fact generate substantial revenues.”
The panel said that the high court’s 2012 ruling foreclosed Sissel’s other claim that the individual-purchase requirement violated the commerce clause.
“We expected that either side in this case would appeal, and eventually this case will likely have to go to the Supreme Court,” said Timothy Sandefur of the Pacific Legal Foundation.
“The judges adopted a vague ‘general purpose’ test for deciding which taxes have to start in the House and which do not,” Sandefur, who argued the case for Sissel, said in a written statement. “But the Constitution makes no such distinction, and neither does Supreme Court precedent. The D.C. Circuit for the first time holds that judges can decide for themselves what the ‘main object or aim’ of a tax is, and then pick and choose whether the constitutional rules on the enactment of new taxation should apply. We think that’s wrong, and that’s what we’ll be taking to the Supreme Court if necessary.”
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