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Obamacare faces new legal challenge: Its 'tax' still violates the Constitution

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Article I, Section 7 of the Constitution says that tax bills – “all bills for raising revenue” – must “originate in the House of Representatives.” The framers wrote this “Origination Clause” because they recognized the potential danger in the taxing power, and they wanted to keep it as close as possible to voters. So they entrusted it to members of the House, who are elected every two years and have smaller constituencies than senators, who represent whole states and serve staggered six-year terms.

But Obamacare didn’t follow the constitutional script. Instead of originating in the lower chamber, it started in the Senate, when Majority Leader Harry Reid took an old bill the House had passed that would have given veterans tax credits to buy homes, struck out all of that bill’s language, and inserted instead the confusing web of provisions that became the Affordable Care Act.

Was this “gut and amend” ploy valid?

That question is now in front of US District Judge Beryl Howell in Washington, D.C., in a challenge to Obamacare filed on behalf of Matt Sissel, an Iowa small business owner who was decorated for service as a medic in the Iraq war.

Obamacare was passed hastily, by lawmakers who admitted they had not read the bill. The legislation was passed during the holiday season, through questionable procedural tricks. It was never popular, and a recent Kaiser Family Foundation poll found that only 36 percent of Americans currently support the law. Even the Supreme Court’s liberal wing agreed that large parts of it were unconstitutional. In part of last June’s decision, Justices Stephen Breyer and Elena Kagan joined the conservatives to hold that Congress had illegally tried to force states to expand their Medicaid rolls.

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