Everyone's A Constitutional Law Expert These Days

Take WaPo columnist George Will for instance.  He's boldly predicting Obamacare is doomed as doomed can be and that it will be struck down any day now over the "origination clause" in the Constitution that states a bill must originate in the House:

In October 2009, the House passed a bill that would have modified a tax credit for members of the armed forces and some other federal employees who were first-time home buyers — a bill that had nothing to do with health care. Two months later the Senate “amended” this bill by obliterating it. The Senate renamed it and completely erased its contents, replacing them with the ACA’s contents.

Case law establishes that for a Senate action to qualify as a genuine “amendment” to a House-passed revenue bill, it must be “germane to the subject matter of the [House] bill.” The Senate’s shell game — gutting and replacing the House bill — created the ACA from scratch. The ACA obviously flunks the germaneness test, without which the House’s constitutional power of originating revenue bills would be nullified.

Case law establishes that the origination clause does not apply to two kinds of bills. One creates “a particular governmental program and . . . raises revenue to support only that program.” The second creates taxes that are “analogous to fines” in that they are designed to enforce compliance with a statute passed under one of the Constitution’s enumerated powers of Congress other than the taxing power. The ACA’s tax, which the Supreme Court repeatedly said is not an enforcement penalty, and hence is not analogous to a fine, fits neither exception to the origination clause.

The ACA’s defenders say its tax is somehow not quite a tax because it is not primarily for raising revenue but for encouraging certain behavior (buying insurance). But the origination clause, a judicially enforceable limit on the taxing power, would be effectively erased from the Constitution if any tax with any regulatory — behavior-changing — purpose or effect were exempt from the clause.

Will argues that the individual mandate being a tax violates this principle and that there's no way the ACA can survive the Supreme Court.  At least one challenge to the law on this was waived by the DC Circuit court back in March.  But the lower courts have ruled in favor of the ACA.

Senate rules don't trump the Constitution, obviously; the bottom line is what the Constitution means when it says the Senate has the power to "propose or concur with amendments" on House revenue bills "as on other bills." If the Senate's power to amend revenue bills is no different from its power to amend any other bill, where does the germaneness requirement for tax measures come from? Because you won't find it in the text of the Constitution.

The lower court disagreed with the foundation's reasoning, ruling against Sissel in June. It held that the Affordable Care Act didn't violate the origination clause because that provision applied only to measures whose purpose was to raise revenue. And even if the origination clause applied, the court held, the Affordable Care Act satisfied it because HR 3590 started in the House.

So the question is will the Supreme Court eventually kill the ACA on a technicality some five or six years after the law was passed?  Having already survived at least one Supreme Court challenge, I would have to think that the answer would be another 5-4 ruling in the ACA's favor.

But that's well down the road.