Obamacare & Origination, cont’d

by Andrew C. McCarthy

I’ve gotten some very interesting mail (as I’m sure Matt has) on our discussion of the Origination Clause last week. This one, from NR reader Andrew Hyman, is worth quoting in full:

I’m an attorney in Massachusetts, and would like to comment briefly about your debate with Matt Franck.  I think that Franck is partly correct and partly incorrect. Franck is correct that the Origination Clause clearly refers to raising revenue rather than spending it. But Franck is incorrect that the Origination Clause places no limits upon Senate amendments.

There are at least two textual limits on Senate amendments:

(1) The amendments cannot be so sweeping and non-germane as to amount to an “origination”.

(2) The amendments cannot be so sweeping and non-germane as to exceed the amendments allowed “on other bills” (e.g. bills amended by the Continental Congress under the Articles of Confederation, or non-revenue bills under the Constitution and into which the Senate obviously cannot insert taxes).

Indeed, Madison said that the allowability of a Senate amendment would, “turn on the degree of connection between the matter & object of the bill and the alteration or amendment offered to it.”

Just like Madison, SCOTUS has said this (in the 1911 case of Flint v. Stone Tracy Company): “The amendment was germane to the subject-matter of the bill and not beyond the power of the Senate to propose.”

This is germane to the argument I made in the weekend column – namely, that wherever you come out on the differences between Matt and me on the outer reaches of the House’s origination power (i.e., is it only about raising revenue by taxation or does it encompass spending), we should be able to agree on the unconstitutionality of the Obamacare law itself (i.e., the Patient Protection and Affordable Care Act). As I outline in the column, the Obamacare legislation is clearly tax and revenue raising legislation, and it originated in the Senate.

Some argue that it can pass muster as a House bill because it had a House number. But that ignores how it got the House number. There was an unrelated, uncontroversial House bill called the Service Members Home Ownership Tax Act of 2009 that the House passed unanimously. The Senate then amended what Harry Reid has continued to call “the Senate Health Care bill” into this House bill. The amendment, to borrow from Mr. Hyman, was sweeping and non-germane. It gutted the House provisions regarding tax credits for veterans who buy homes and substituted the Senate-crafted revenue-raising measures – which were quite unabashedly revenue-raising provisions even before the Supreme Court ruled that the portion of the statute it upheld could be sustained only as a tax, not under Congress’s Commerce Clause power.

One last point. In the Obamacare decision, the justices really made two rulings, involving not just the individual mandate but also Medicaid expansion (sometimes called the “State mandate”). As noted, the individual mandate was found to be constitutionally infirm on the rationale offered by the administration but upheld nevertheless as a tax. The Medicaid expansion was held unconstitutional – the Court rejecting the feds’ heavy-handed threatening of Medicaid funding in order to force the states to comply with federal dictates.

I did not get into the Medicaid expansion aspect of the decision because it detracts from focus on the Origination Clause argument. But given that the administration and its apologists keep pounding their talking-point that the Supreme Court has somehow endorsed Obamacare, it is worth remembering that the truth is closer to the opposite: The Court completely rejected half of the Obamacare case before it, and, as to the other half, upheld it only by finding that it was what Obama insisted it wasn’t, a tax.