Judges seem skeptical over latest challenge to health care law

05/09/2014 6:12 AM

05/09/2014 6:12 AM

The seemingly endless legal war over health care found an esoteric new front Thursday, as appellate judges considered where certain bills should originate.

Amid references to various 18th-century Founding Fathers, some of them obscure, skeptical-sounding judges weighed claims that the Affordable Care Act’s so-called individual mandate is invalid because it violates an under-appreciated part of the Constitution called the Origination Clause.

The clause says that all bills “for raising revenue” must originate in the House of Representatives. The case pressed Thursday by the Pacific Legal Foundation, based in Sacramento, Calif., is that the health care legislation was a revenue-raising measure that effectively started in the Senate.

“Origination Clause cases,” Pacific Legal Foundation attorney Timothy Sandefur acknowledged Thursday, “are very rare.”

Practically speaking, the challenge heard for 30 minutes Thursday before a packed fifth-floor courtroom of the U.S. Court of Appeals for the District of Columbia Circuit may prove a long shot. The Supreme Court upheld the law’s individual mandate nearly two years ago, and in the meantime more than 8.1 million U.S. residents have enrolled through the various health insurance exchanges. Legal theories aside, judges might think hard about trying to unwind that.

All three of the judges hearing the case were Democratic appointees, and President Barack Obama recently named two of them to the court. Their questions and observations Thursday suggested sympathy for the administration’s position, including references to the congressional health care debate itself.

“It didn’t occur to any House member to raise an (Origination Clause) objection,” noted Judge Robert L. Wilkins, one of the Obama nominees.

Judge Judith W. Rogers added that “no one viewed this as a bill to raise revenues” when the Senate passed what’s formally known as the Patient Protection and Affordable Care Act. If the three-judge panel agrees that the Senate didn’t originate a revenue-raising bill, the conservative challenge fails.

As a thought-provoker and show of courthouse judo, though, the case is drawing national attention.

Along with others, the Pacific Legal Foundation originally sued to block the individual mandate as a violation of the Constitution’s Commerce Clause. The mandate requires most individuals to buy insurance or pay a fee, a requirement that the Supreme Court majority agreed in 2012 exceeded Congress’ power to regulate interstate commerce.

But in an unexpected decision authored by Chief Justice John Roberts Jr., the high court’s 5-4 majority also concluded the mandate was acceptable under congressional taxing power. Though Congress had carefully sidestepped the politically toxic term, calling it instead a “shared responsibility payment,” Roberts bluntly characterized the fee to be charged those who lack insurance as a tax.

With that, the Pacific Legal Foundation flipped the complaint filed on behalf of a Washington state small-business owner named Matt Sissell. Since it includes a revenue-raising tax, the conservative lawyers argued in their revised complaint, the individual mandate should have originated in the House instead of the Senate.

Democratic lawmakers, though, took steps to meet the Origination Clause requirements. A question for the three-judge panel is whether those steps were sufficient or merely illusory. As part of the complicated Capitol Hill maneuvering, Senate Democrats stripped out all the language from an unrelated homebuyers tax credit bill the House passed in September 2009 and replaced it with the sprawling health care legislation.

“The bill that arose in the House of Representatives was not a bill for raising revenues,” Sandefur said, and then “the Senate transformed that into a bill for raising revenues.”

Judge Cornelia T. L. Pillard, another Obama nominee, countered that Democratic lawmakers “were hoping it wouldn’t raise any money,” as the intent of the measure was to induce people to enroll in insurance programs. Among other issues, Pillard and her colleagues must decide how much judges may second-guess the Senate’s amendment practices.

“The Senate can amend (legislation) as it sees fit,” said Justice Department attorney Alisa B. Klein.

Previous court cases have specified that the Origination Clause requirement doesn’t apply to measures that raise money for specified programs, such as the federal crime victims’ fund, or those that are analogous to punitive fines.

Before the Origination Clause argument Thursday morning, the panel spent about 45 minutes dealing with separate religious objections to the law’s so-called contraceptive mandate, which requires many employers to provide insurance coverage for contraceptives.

The Supreme Court, meanwhile, is expected to rule by the end of June on whether for-profit corporations may claim religious exceptions to the contraceptive mandate.

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