Academic journal article Harvard Law Review

Constitutional Law - Origination Clause - D.C. Circuit Reaffirms That Affordable Care Act Falls outside Scope of the Origination Clause by Denying Petition for En Banc Review

Academic journal article Harvard Law Review

Constitutional Law - Origination Clause - D.C. Circuit Reaffirms That Affordable Care Act Falls outside Scope of the Origination Clause by Denying Petition for En Banc Review

Article excerpt

Constitutional Law--Origination Clause--D.C. Circuit Reaffirms that Affordable Care Act Falls Outside Scope of the Origination Clause by Denying Petition for En Banc Review.--Sissel v. United States Department of Health & Human Services, 799 F.3d 1035 (D.C. Cir. 2015).

Article I, Section 7, Clause 1 of the Constitution, known as the Origination Clause, reads: "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." (1) Recently, in Sissel v. United States Department of Health & Human Services, (2) the D.C. Circuit held that the Patient Protection and Affordable Care Act (3) (ACA) was not a bill "for raising Revenue" implicated by the Origination Clause. (4) In August 2015, the D.C. Circuit denied a petition to rehear the case en banc over a lengthy dissenting opinion from Judge Kavanaugh. (5) Judge Kavanaugh argued that the ACA was a bill "for raising Revenue" that lawfully originated in the House, even though the Senate took a House bill and amended it by striking its text in its entirety and inserting the ACA. (6) In rejecting Judge Kavanaugh's reasoning, due in part to worries that it would "be perceived as judicial endorsement of treating the Origination Clause as empty formalism," (7) the judges of the original D.C. Circuit panel strongly suggested that the question of whether a bill originated in the House is justiciable--and hinted that the Origination Clause imposes substantive limitations on the Senate's ability to amend a bill without altering its origination in the House.

In an effort to expand individual access to healthcare, the ACA requires individuals to maintain health insurance (or else pay a shared-responsibility payment), (8) provides tax credits to low-earning households, (9) and expands Medicaid to households with incomes below 133 percent of the poverty line. (10) In order to offset the budgetary impact of these reforms, the ACA imposed not only the shared-responsibility payment, but also a series of other taxes estimated to raise revenues of $473 billion over ten years. (11)

The ACA began as the Service Members Home Ownership Tax Act of 2009, (12) a bill introduced in the House of Representatives. (13) On October 8, 2009, the bill passed the House. (14) Upon receiving the bill, the Senate wholly replaced its contents with the ACA, which passed the Senate on December 24, 2009. (15)

Matt Sissel, an artist from Cedar Rapids, filed suit alleging, in relevant part, that the individual mandate of the ACA was unconstitutional under the Origination Clause. (16) The district court granted the government's motion to dismiss. (17) Judge Howell held that the individual mandate was not a bill "for raising Revenue" and therefore fell outside the scope of the Origination Clause. (18) Noting that the bill's purpose was critical to whether it was a revenue-raising bill, the court held that the ACA's primary aim was to encourage individuals to purchase health insurance, rather than to raise revenue to support government generally. (19) Although this determination was sufficient to decide the case, the district court additionally held that the ACA was an amendment to a bill that originated in the House and therefore would survive even if the ACA were an ordinary tax bill. (20) To reach this conclusion, Judge Howell relied upon a 1914 Supreme Court case, Rainey v. United States, (21) which rejected a requirement that Senate amendments be germane to the House-originated text. (22) Judge Howell held that such a requirement would be satisfied even if it applied, because the original bill concerned revenue. (23)

The D.C. Circuit affirmed, albeit on narrower grounds. Writing for the panel, Judge Rogers (24) held that the bill was not "for raising Revenue," (25) but did not reach the question of whether the ACA originated in the House. Judge Rogers also followed a purposive approach, relying upon Twin City Bank v. …

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