Conservative Federal Judges Wave The White Flag On Obamacare | ThinkProgress

Another little known case with huge implications:

More than a year ago, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Sissel v. Department of Health and Human Services. Matt Sissel and his attorneys claimed that a key provision of the Affordable Care Act must be struck down because of an alleged procedural error committed by Congress while the law was debated and passed. The three-judge panel rejected this claim, but Sissel’s attorneys responded by asking the full DC Circuit to reconsider the case. That petition, seeking full court review, languished for months without an answer from the court’s judges.
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Sissel challenges the Affordable Care Act under a provision of the Constitution known as the Origination Clause, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” In practice, this clause creates a procedural roadblock that Congress frequently avoids through the Senate’s broad amendment power. Though a “Bill for raising Revenue” must begin in the House, the Senate has the power to amend such a bill with an amendment that completely rewrites its text. Thus, to avoid violating the Origination Clause, the Senate will take a bill that already passed the House, amend it to replace that bill with its own preferred language, and then pass the amended bill and send it back to the House.

This is a common practice that the Senate has used for many years. In 1986, for example, the Senate used this process to enact tax reforms that were signed into law by President Ronald Reagan. The same process was also used to enact the Affordable Care Act.

Sissel, however, claimed that this process could not be used to enact Obamacare, in part because original House bill that the Senate amended “had nothing to do with health insurance reform.” Yet, as Judge Brett Kavanaugh explained in an opinion joined by the DC Circuit’s three other Republican members, this claim has no basis in the text of the Constitution. “The Origination Clause,” Kavanaugh explains, “imposes no germaneness requirement on the Senate when it amends revenue-raising bills that originated in the House.”

Kavanaugh summarizes the fatal flaw in Sissel’s argument in just a few sentences:

The Origination Clause permits the Senate to “propose or concur with Amendments as on other Bills.” The text of the Origination Clause therefore grants the Senate as much authority to amend revenue bills as it grants the Senate to amend other bills. There is no general germaneness requirement when the Senate amends other House bills. It follows that there is no germaneness requirement when the Senate amends revenue bills. “As on other Bills” means “As on other Bills.”

Conservative Federal Judges Wave The White Flag On Obamacare | ThinkProgress