The Supreme Court upheld most provisions of the act in June, but Chief Justice John G. Roberts Jr. took pains in the majority opinion to define Obamacare as a federal tax, not a mandate. That was when the Sacramento, Calif.-based foundations attorneys had their aha moment.
The court there quite explicitly says, This is not a law passed under the Commerce Clause; this is just a tax, foundation attorney Timothy Sandefur said at a Cato Institute forum on legal challenges to the health care act. Well, then the Origination Clause ought to apply. The courts should not be out there carving in new exceptions to the Origination Clause.
The Justice Department filed a motion to dismiss the challenge in November, arguing that the high court has considered only eight Origination Clause cases in its history and has never invalidated an act of Congress on that basis.
The U.S. District Court for the District of Columbia is expected to rule on the Justice Departments motion any day now, said Pacific Legal Foundation attorney Paul J. Beard.
The challenge citing the Origination Clause isnt the only lawsuit against Obamacare, but it is the only one that has the potential to wipe out the entire act in one fell swoop. Other claims, notably the freedom-of-religion cases dealing with the birth control requirement, nibble at the fringes but would leave the law largely intact.
In their brief, attorneys for the Justice Department argue that the bill originated as House Resolution 3590, which was then called the Service Members Home Ownership Act. After passing the House, the bill was stripped in a process known as gut and amend and replaced entirely with the contents of what became the Patient Protection and Affordable Care Act.