By Lisa Schencker, Crain News Service
WASHINGTON (Nov. 4, 2015) — The U.S. Supreme Court has already saved the Affordable Care Act (ACA) twice, but that isn't stopping the law's foes from asking the justices to hear yet another challenge.
In a petition filed Oct. 26 with the high court, Washington artist Matt Sissel argues the healthcare law is unconstitutional because it is a revenue-raising bill that began in the Senate instead of the House, which holds the “power of the purse.”
More than 40 House Republicans have filed briefs in the case, in lower courts, supporting Mr. Sissel.
Democrats have said the bill did technically originate in the House as a measure focused on first-time homebuyers' credit for military members. That bill ultimately became the ACA.
“This is a great question for the court to take,” said Timothy Sandefur, an attorney for Mr. Sissel with the Pacific Legal Foundation, which is funding the case. He said the case is important both constitutionally and for the future of the ACA. “It's just a straight question about the constitutionality of this ‘gut and replace' procedure.”
Others, however, believe it's unlikely the justices will hear the Sissel v. HHS case.
“Every court to consider this argument has rejected” it,” Erwin Chemerinsky, a constitutional law professor at the University of California at Irvine, wrote in an e-mail. “Not once in American history has a law been declared unconstitutional on this basis.” He said the Senate often changes the content of House bills.
The issue of when a bill technically originates in the House versus the Senate is a serious one, but courts have been reluctant to weigh in on the matter, said James Blumstein, a constitutional and health law professor at Vanderbilt Law School. Unless the plaintiff can suggest a bright-line rule for making that determination, “I think it will be difficult to get the court to engage the issue,” he said.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit last year ruled against Mr. Sissel, saying the ACA's purpose was not to raise revenue. That court also recently rejected Mr. Sissel's request to rehear the matter before a full panel of judges. In that latest decision, a majority of the court's judges said the Supreme Court has never found a law in violation of the Constitution's origination clause.
Mr. Sandefur, however, noted that four of the D.C. Circuit judges dissented on that court's decision not to rehear the case.
Those dissenting judges said the court's ruling set a precedent that would exempt many pieces of tax legislation from the Constitution's origination clause. Those judges wrote they agree with Mr. Sissel that the ACA is a revenue-raising statute, though they still would have sided with the government in the case.
At least one other case, Hotze v. Burwell, also made the same argument as the one in Mr. Sissel. But a panel of the 5th U.S. Circuit Court of Appeals said in that case the plaintiff didn't have standing to sue. The appeals court denied the plaintiff's request for a rehearing before a full panel of judges.
Some legal experts have also said that U.S. Chief Justice John Roberts' opinion in King v. Burwell indicated the court has no interest in undoing the ACA.
In that opinion, he wrote: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Mr. Sandefur, however, said he doesn't expect challenges to cease any time soon.
“Obamacare is so unconstitutional for so many reasons even if it's not our case, courts are going to be dealing with these issues for years and years and years because the problems keep coming,” Mr. Sandefur said. “This is a statute that's going to give rise to lawsuit after lawsuit until it's repealed or amended.”
This report appeared on the website of Crain's Modern Healthcare magazine, a Chicago-based sister publication of Tire Business.