Twenty states have signed onto a lawsuit challenging the Affordable Care Act on the grounds that it violated the Origination Clause by starting in the Senate instead of the House.
The brief, filed May 15 by Texas Attorney General Greg Abbott and endorsed by another 19 attorneys general, comes in support of a lawsuit filed by Dr. Steven Hotze of Houston, Texas, now before the Fifth Circuit Court of Appeals.
The Hotze case is one of two lawsuits seeking to overturn the ACA on the grounds that the bill originated in the Senate. The Constitution requires all bills for raising revenue to originate in the House.
Both lawsuits lost their first rounds in federal district court, but they’ve since been gaining momentum. The other lawsuit, filed by Iowa artist Matthew Sissel and backed by the Pacific Legal Foundation, is awaiting a decision by the D.C. Circuit Court of Appeals after oral argument was heard May 8.
In January, U.S. District Court Judge Nancy Atlas rejected the Origination Clause argument in the Hotze case, ruling that the Obamacare tax is incidental to its goal of expanding insurance coverage, but the attorneys general argue in their brief that such reasoning amounts to “constitutional contortionism.”
“The district court nevertheless upheld the ACA on the theory that it is a tax for purposes of NFIB and the Commerce Clause, but it is not a tax for purposes of this case and the Origination Clause,” says the brief. “We are aware of no case from the Supreme Court, this Court, or any of its sister circuits that embraces such constitutional contortionism.”
The other 19 states represented in the Hotze brief are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.
The House bill that became Obamacare originally provided a housing tax credit for veterans, but its language was removed in its entirety by the Senate and replaced in a process known as “gut and amend.”
The lawsuits argue that the gut-and-amend maneuver, if allowed to stand, would effectively nullify the Origination Clause, which was intended to ensure that the House closest to the voters would take the lead in proposing new taxes.