Thinking Out Loud: Does Obamacare Violate the Constitution’s Origination Clause?

Representative Trent Franks (R-AZ) believes Obamacare is unconstitutional because it violates the Constitution’s “Origination Clause” (Article I, Section 7), which says that “All bills for raising Revenue shall originate in the House of Representatives.”   Consequently, he has filed suit in federal courts and he has introduced a resolution expressing the “sense of the House” that Obamacare violates that clause.

So what’s his reasoning?  First, that Obamacare is undeniably legislation that raises revenue.  There are 17 revenue-raising measures in the bill, including the individual mandate and medical-device taxes.  Also, the Supreme Court ruled that Obamacare is a tax, and taxes are meant to raise revenue.

So what, you say?  Obamacare originated in the House.   No it didn’t according to Rep. Franks and, increasingly, other legal experts.

To set the stage, in the fall of 2009, the House unanimously passed H.R. 3590, the “Service Members Home Ownership Tax Act of 2009,” a nondescript piece of legislation giving tax breaks to military servicemen.  Whereupon Senate Majority Leader Harry Reid “amended” that bill, removing all of the language — all 714 words — granting servicemen tax breaks, and substituting the nearly 400,000 words that Sen. Reid, on his own official website, called the “Senate Health Bill.”  That “Senate (not House) Health Bill” is better known as Obamacare, and it includes $675 billion in revenue-raising measures.

So Obamacare was an amendment, attached by the Senate, to a House bill giving tax breaks to military servicemen, meaning the only part of Obamacare that originated in the House was the language — those 714 words — describing those tax breaks, and those words are nowhere to be found in the Obamacare legislation that is the law of the land today.  And speaking of the Supreme Court, in ruling that Obamacare was a tax it stipulated that, as a tax, it “must still comply with other requirements in the Constitution.”  Chief among those “requirements” is that tax legislation must originate in the House.

Makes sense to me, and although I am no legal scholar, I am a long-time student of the Constitution, which purposely gave the House, and not the Senate, the revenue-raising power.  Simply put, many Founders viewed the Senate as somewhat “elitist,” and too aloof from the electorate, what with its six-year terms, statewide constituencies and appointment by state legislatures (before the 17th Amendment).   The House was “the people’s branch.”  Members served only two years and were directly elected by popular votes, meaning they were the most beholden to the people’s will.   So it made sense to give the most awesome power a government can possess, the “power of the purse,” to the governmental branch closest to the people.   Today more than ever — as Harry Reid has demonstrated — that’s not the Senate.