- The Washington Times - Thursday, October 31, 2013

Even as Obamacare faces a rocky rollout, the legal battle against the program grinds on.

A lawsuit aimed at overturning Obamacare on the basis of the Origination Clause has moved to the appeals court after losing its first round in federal trial court.

Attorneys for the Pacific Legal Foundation in Sacramento filed an appeal last week with the District of Columbia Court of Appeals after a federal judge ruled June 28 in favor of the Obama administration’s motion to dismiss the case.

“Whoever loses at this stage of the proceeding will undoubtedly file at United States Supreme Court for a writ of certiorari, said PLF lead attorney Paul J. Beard III. “We are hopeful the U.S. Supreme Court will take this issue up again — you know it decided Obamacare on a different issue in 2012, and we believe we have a better than average chance because this issue as to whether the tax violates the [Constitution’s] origination clause was not raised in the original proceeding before the Supreme Court.”

If so, the case would give the high court a second crack at the landmark 2009 health care law. In June 2012, the court ruled that the law’s individual mandate complied with the Constitution because it was technically a tax, not a requirement to purchase insurance.

That’s where the PLF lawsuit comes in. The Constitution requires all revenue bills to originate in the House — known as the Origination Clause — but foundation attorneys argue that the health care law actually began in the Senate.

District Court Judge Beryl A. Howell rejected that argument, ruling that the Supreme Court had already decided on the law’s constitutionality and that the revenue-raising portion of Obamacare was “incidental” to its main mission.

In its Oct. 23 appeal, however, the foundation argues that the Obamacare tax “is an exercise solely of Congress’s tax power, and raises revenue generally to fund the government, much like the income tax.”

“The tax produces ‘considerable revenue’ for the government … ‘about $4 billion a year by 2017,’” said the 52-page appeal. “And this money is not earmarked to finance or defray the cost of any particular government program. Instead, it goes into the general fund for expenditure on whatever the government chooses—as with any other tax.”

The legislation that became the PPACA began as H.B. 3590, an unrelated bill regarding tax credits for veterans buying homes, but was stripped and replaced in the Senate as part of a process known as “gut and amend.”

The District Court ruling held that the Senate has the flexibility to replace the language of one bill with another, but in their appeal, PLF attorneys argue that, “If the Origination Clause has any meaning, it must be to bar the Senate from creating from scratch any bills for raising revenue.”

The Justice Department has 30 days to file an opposing brief, after which PLF would file a reply brief. After that, the case would be set for oral argument.

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