If you take a vanilla ice cream cone, throw the ice cream part into the trash, then refill the cone with liver pudding, do you still have a vanilla ice cream cone? Most folks, especially kids, would give you an emphatic “NO”, but the Obama Administration, in two cases making their way up the litigation ladder (perhaps to the SCOTUS) says yes. In 2010, in order to craft ObamaCare in spite of opposition in the House of Representatives, Harry Reid took a bill that had been passed in the House and then sent on to the Senate (H.R. 3590), gutted the content, and used it as a vehicle for the Patient Protection and Affordable Care Act.
There are many lawsuits pending over various issues related to ObamaCare. One issue on which many pinned their hopes was related to the “orgination clause”, which is that portion of the first sentence in Article I, Section 7 of the Constitution which reads “All bills for raising Revenue shall originate in the House of Representatives;”. However, according to an article by Jonathan Adler, posted at the law blog Volokh Conspriracy, the DC Circuit Court of Appeals is not cooperating with this effort.
A key bit:
As for the merits of the claim, what makes the Origination Clause argument difficult is that Congress observed the Origination Clause in form if not in substance. The Senate took a bill that had passed the House, stripped out its contents, and inserted the PPACA so that it could claim fealty to the Constitutional requirement. This approach clearly circumvents the purpose of the rule. So, would a Court throw out portions of the PPACA on such grounds? I doubt it. Although the Supreme Court has suggested its willingness to consider such arguments before, I am skeptical that federal courts are likely to scrutinize how legislation gets produced. Thus, for example, the D.C. Circuit has turned away challenges to federal legislation that allegedly violated the enrolled bill rule, refusing to second-guess the legislature’s certification that a given bill satisfied the relevant constitutional requirements. When a federal court reaches the merits of an Origination Clause challenge, I would expect a similar outcome, even if this means the Senate may continue to play fast and loose with the origination requirement. Utilizing shell bills may make a mockery of the rule, but it’s not the sort of thing that is likely to be overturned in federal court.
For the entire article, click HERE.