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Cornyn, Cruz Back Obamacare Lawsuit Over Origination Clause

Cornyn. (Bill Clark/CQ Roll Call File Photo)
Cornyn. (Bill Clark/CQ Roll Call File Photo)

Sens. John Cornyn and Ted Cruz are backing another Obamacare lawsuit, hoping to upend the law.  

The Texas Republicans — both lawyers — filed a court brief backing the lawsuit, which claims the Senate failed to comply with the Constitutional requirement that revenue bills start in the House.  

While the House drafted and passed a health care overhaul, the Senate did not use that bill as the base for its own effort. The legislative history for the bill that became law as the Affordable Care Act shows that it started as an innocuous measure in the House waiving the repayment requirement of the first-time home-buyer tax credit for some military personnel. In the Senate, Democratic leadership substituted the text of that chamber’s version of the health care overhaul. The move avoided the possibility of facing a “blue slip” from the House, in a procedure through which tax bills that start in the Senate get quashed. The Origination Clause has at times proven pesky to leaders in both parties.  

A three-judge panel of the D.C. Circuit rejected the argument made in the lawsuit by Matt Sissel, as the Los Angeles Times reported , holding that the so-called “shared responsibility payment” is not really a tax, and thus the rest of the debate is not relevant.  

“Because we conclude that the shared responsibility payment in Section 5000A is not a “‘Bill … for raising Revenue’ within the Supreme Court’s accepted meaning of that phrase, and thus was not subject to the Origination Clause, this court has no occasion to determine whether it originated in the House or the Senate,” the D.C. Circuit said.  

Cornyn and Cruz filed a brief in support of a re-hearing at the full D.C. Circuit on that point, citing the opinion of Chief Justice John Roberts in upholding the Affordable Care Act at the Supreme Court under the taxing power.  

“In this case, with an exclusive reliance on the taxing power, the shared responsibility penalty was constitutionally justified solely as a revenue-raising tax. Courts may not look behind the constitutional ‘object’ or purpose for this measure to any other motives that Congress may have harbored. Congress may exact money for a variety of constitutional ends, but when it attempts to achieve these ends by using its power to tax the people, such a measure is a bill for raising revenue that must originate in the House,” the senators wrote in the brief.  

Were the view taken by the two senators from Texas to be accepted by a federal court, that could lead to the underlying question of the workaround for the Origination Clause. There’s no telling how many pieces of the tax code might be affected by an adverse ruling on that front. That’s because the Senate has, as a matter of course, used the “shell” of legislation amending revenue provisions originating in the House, stripped out all of the text, and inserted material that isn’t really related except for doing something about taxes.  


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