Obamacare is headed for a do-over in the Supreme Court, and perhaps this time the court will be more amenable to doing its duty by putting this badly implemented scheme out of the nation’s misery. The high court on Monday declined to hear Liberty University’s expansive challenge to the employer mandate, but it did agree last week to consider a more focused challenge to the requirement that private firms pay for contraceptive devices and abortions, regardless of any moral objections they might have.
The justices should also give a hard look at another case wending its way up the federal court pipeline that puts Obamacare’s foundation on shaky ground. The Pacific Legal Foundation argues that President Obama rammed his health care bill through Congress in violation of the Constitution’s Origination Clause, which stipulates that taxing and spending bills must be introduced in the House, not in the Senate. An impatient Senate Majority Leader Harry Reid couldn’t wait for the House, which was under Democratic management in 2010. The Nevada Democrat took a House bill granting housing tax credits to veterans, the Service Members Home Ownership Tax Act, and in a maneuver known as “gut and amend,” deleted its language and substituted the 2,700-page monstrosity that is Obamacare.
The legal challenge to Mr. Reid’s gimmick is now on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. Forty-three House Republican members filed a friend of the court brief expressing their displeasure with the upper chamber’s usurpation. “If the Senate can introduce the largest tax increase in American history by simply peeling off the House number from a six-page, unrelated bill, which does not raise taxes,” they wrote, “and pasting it on the ‘Senate Health Care Bill,’ and then claiming that the resulting bill originated in the House, in explicit contravention of the supreme law of the land, then the American ‘rule of law’ has become no rule at all.”
In June, a federal district court judge appointed by Mr. Obama had downplayed in the constitutional concerns raised in the case. Judge Beryl Howell employed legal legerdemain to rule that the trillions of dollars raised by Obamacare were somehow “incidental” to the law’s main purpose, and as such it was not a “bill for raising revenue.”
The Justice Department’s response to the appeal is due by Monday, and the court is likely to hear oral arguments sometime before the end of March. The problem with that timeline is that it allows enough time for Mr. Obama’s three far-left nominees to the U.S. Court of Appeals for the D.C. Circuit, on behalf of whose Senate confirmation Mr. Reid detonated the nuclear option, to settle into their new lifetime appointments. They’re not likely to express their gratitude by striking down the president’s signature legislative accomplishment.
The high court must not allow the administration to render the Origination Clause a dead letter. The Founding Fathers knew well the government’s fascination with raising taxes, and they came up with this mechanism to minimize the need for future tea parties. The Founders saw the House as the federal government’s most directly accountable body, so it entrusted the leadership role on taxes to the lower chamber.
Defending this principle is about more than just stopping Mr. Obama’s destructive health law. It’s equally important to limit the number of governmental institutions with the power to dream up new tax hikes.