PLF files opening brief in health care law 'Origination Clause' suit

By Jessica M. Karmasek | Oct 25, 2013

WASHINGTON (Legal Newsline) -- A Sacramento, Calif.-based public interest legal organization has filed its opening brief in a challenge to President Barack Obama's health care law for imposing unconstitutionally-enacted taxes.

Obamacare's individual mandate requires nearly all Americans to buy a health insurance plan or pay a charge -- $695 per person -- to the federal government.

In its ruling on the law last year, the U.S. Supreme Court identified this charge as a federal tax, but the court was not asked -- and did not address -- whether this tax was enacted constitutionally, the Pacific Legal Foundation argues in its brief, filed in the U.S. Court of Appeals for the District of Columbia Wednesday.

The foundation's lawsuit targets, in particular, the mandate's tax imposed on those who refuse to buy insurance, arguing that it originated in the wrong house of Congress.

The law started in the Senate; however, the U.S. Constitution's "Origination Clause" requires that taxes start in the House, to keep the taxing power close to the people.

"Majority Leader Harry Reid violated the Constitution by unveiling Obamacare in the Senate," PLF Principal Attorney Paul J. Beard II said in a statement Thursday. "With its hundreds of billions of dollars in new levies -- including the individual mandate -- Obamacare should have been introduced in the House, where all taxation must begin.

"But Reid pulled it out of his hat in the Senate. He used a procedural gimmick. He took an unrelated House measure designed to help veterans buy homes, and then erased its text and substituted Obamacare, with its onerous burden of new regulations and taxation."

Beard said the Supreme Court has never addressed this kind of "gut and switch."

"The violation is so blatant that it can't be given a pass, if the Origination Clause is to have any integrity," he said.

Georgetown University Law School Professor Randy Barnett, a leading constitutional critic of Obamacare, has said of PLF's argument: "If any act violates the Origination Clause, it would seem to be the (Patient Protection and) Affordable Care Act."

The foundation is appealing a June ruling exempting the mandate from the Origination Clause on the grounds that the tax is intended to encourage people to buy government-decreed health plans.

"There is no precedent for setting aside the Constitution's procedural requirements merely because a tax influences conduct," Beard said of the district court's decision.

PLF attorneys are representing Matt Sissel, a small business owner, in the case.

"I'm in this case to defend freedom and the Constitution," Sissel said in a statement. "I strongly believe that I should be free -- and all Americans should be free -- to decide how to provide for our medical needs, and not be forced to purchase a federally dictated health care plan.

"I'm very concerned about Congress ignoring the constitutional roadmap for enacting taxes, because those procedures are there for a purpose -- to protect our freedom."

The foundation isn't just challenging the mandate; it is asking the D.C. Circuit to strike down the entire law, arguing that the mandate is a "central component."

"Our case is powerful -- based on the clear text of the Constitution and a plain-as-day violation," Beard said.

"A victory in our case must mean that Obamacare should be halted, even if parts or all of it have already come online. The fact that an illegal law is operating doesn't make it any less illegal -- and subject to being struck down."

The appeals court most likely won't hear the case until next year.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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