The Origination Clause, the Affordable Care Act, and Indirect Constitutional Violations.

Abstract

"All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." U.S. Const. art. I, § 7, cl. 1 (Origination Clause). "As we have often noted, '[c]onstitutional rights would be of little value if they could be . . . indirectly denied.'" United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 829 (1995) The Supreme Court's opinion in National Federation of Independent Business v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act (ACA) as a permissible exercise of Congress's taxing power rekindled an old question about the constitutionality of the Act: Was the Act unconstitutional under the Origination Clause? The bill that became the ACA, H.R. 3590, originated in the House as the Service Members Home Ownership Tax Act of 2009. It was gutted by the Senate and replaced with the ACA before being passed and sent back to the House for final passage. The Supreme Court has heard very few cases on the Origination Clause, and Origination Clause challenges have met with little success. Most of these cases have developed over the questions of whether the bill is actually a revenue-raising bill that is constitutionally required to be originate in the House, and, if so, whether the Senate amendments were appropriate. But United States Term Limits v. Thornton provides another angle under which to examine the constitutionality of the ACA: an indirect violation of a constitutional prohibition. In this Article, I will provide an overview of the ACA's passage and analyze it through the lenses of traditional Origination Clause arguments and the Term Limits approach.