Obamacare’s Unconstitutional Origins
Tax legislation has to originate in the House; the health-care law didn’t.

Chief Justice John Roberts


Andrew C. McCarthy

Feebly, Attorney General Eric Holder’s minions rationalize that, even if the Senate initiated Obamacare, the House can be said to have “originated” it because the lower chamber did not object to the Senate’s maneuver. This desperate flyer, though, is easily grounded. Obviously, there was no objection because the House was then under control of Speaker Nancy Pelosi and the Democrats. Either they were in on the charade, or — accepting Pelosi’s curious explanation that the bill had to be passed before anyone could “find out what is in it” — they were ignorant of the bill’s contents.

More important, though, the lack of a House objection is immaterial. While the Framers were men of great foresight, their assumption that the governmental bodies they were creating would zealously defend their institutional prerogatives did not anticipate modern progressives, for whom social engineering is a higher priority than constitutional propriety. But this ideological rationale for failing to assert the House’s prerogative does not matter because the point of the Origination Clause was to vest the power of the purse in the people. The privilege to originate spending belongs to us, not to Ms. Pelosi.


The House’s default is not a waiver by the people. Moreover, it is not even clear that then-speaker Pelosi was derelict in not raising an origination objection. After all, (a) proponents were adamant that Obamacare was not tax legislation (i.e., maybe Pelosi actually believed the president); and (b) Pelosi indicated that she was in the dark about the legislation’s contents (i.e., waivers of constitutional prerogatives have to be knowing and voluntary — rights cannot be forfeited in ignorance).

Representative Franks has introduced a resolution (H.R. 153) expressing the sense of the House of Representatives that the Obamacare legislation clearly violated the Origination Clause. The measure is gaining momentum. As it rapidly picks up co-signers, the resolution should materially advance the cases filed against Obamacare, including one to be argued this fall in the D.C. Circuit federal appeals court. After all, if a statute violates the Origination Clause, it is a nullity — invalid from the moment of enactment.

Nevertheless, Republicans should not make the same mistake they made during prior legal challenges to Obamacare. This is not a time for leaders once again to sit idly by with fingers crossed, praying that judges do the heavy lifting for them. The legerdemain that characterized Obamacare’s passage, coupled with its patent lack of constitutional legitimacy, should stiffen the resolve of the House to refuse funding — as it is the House’s prerogative to do.

Once again, the president is not telling the truth about Obamacare. The Supreme Court did not endorse it. The Supreme Court said it could only conceivably be sustained as a tax. It still had to pass the Constitution’s tests for valid taxation. It failed.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.

Editor’s Note: This piece has been amended since is initial posting.


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