- - Thursday, September 26, 2013

Now that the House of Representatives has voted to defund Obamacare — which even Democratic Sen. Max Baucus called “a huge train wreck” — the liberal media and the Democrats have demonized and mischaracterized this exercise of Congress’ constitutional power over the purse as an irresponsible and futile attempt to shut down the government. In truth, any such measure would authorize continued funding of 99 percent of government programs and services. Mr. Obama is threatening to shut down the government, not the Republicans.

However, there is another way to stop Obamacare, and one that I and my colleagues will be championing in the courts and in Congress. This fall, the U.S. Court of Appeals for the District of Columbia Circuit will hear an appeal in Sissel v. HHS as to whether Obamacare violates the Origination Clause of the Constitution, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives,” the people’s house.

That Obamacare raises hundreds of billions in revenues and taxes with the individual-mandate provision, medical-device taxes and 15 other revenue-raising provisions is undeniable. That Obamacare originated in the Senate should also be indisputable. However, here’s how Senate Majority Leader Harry Reid and the Justice Department perpetuate the fiction that Obamacare originated in the House.

In fall 2009, Mr. Reid introduced the entire text of Obamacare by proposing what his official website still touts as the “Senate Health Care Bill.” Using an obscure parliamentary maneuver unfamiliar to the Framers, he “amended” a totally unrelated and unanimously approved House Bill H.R. 3590 (416-0 vote). That “Senate amendment” gutted all 714 words of the House bill designed to grant a tax credit to veterans, and inserted the 379,976 words of the self-described “Senate Health Care Bill” — including $675 billion in new revenue-raising provisions. The only part of Obamacare that originated in the House is the House bill number, H.R. 3590. Not a single House Republican voted for this partisan and unconstitutional takeover of America’s health system.

Whatever legitimacy Mr. Reid’s legislative sleight of hand may have as a parliamentary maneuver for nonrevenue bills, what should be clear to all is its brazen illegitimacy under the Constitution’s Origination Clause. Even the Supreme Court, which dubiously upheld the individual-mandate penalty of Obamacare as a “tax” issued this caveat: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.” Obamacare is a tax bill that did not comply with the Origination Clause.

That is why I, as chairman of the House Judiciary subcommittee on the Constitution and civil justice, along with Rep. Louie Gohmert, Texas Republican, and 28 other members of the House of Representatives, recently introduced House Resolution 153, expressing the sense of the House that Obamacare violated the Origination Clause of the Constitution. I am also asking my colleagues to join me in filing an amicus brief in the pending court of appeals case, which court observers predict will end up in the Supreme Court next year. Lastly, I intend to hold hearings on this important issue this fall.

Our Founding Fathers were justifiably concerned that the power to raise and levy taxes should originate in the people’s house, whose members are closest to the electorate with two-year terms, rather than the Senate, whose members sit unchallenged for six-year terms, do not proportionally represent the American population, and already enjoy their own unique and separate Senate powers intentionally divided by the Framers between the two chambers.

The principle behind the Origination Clause was the moral justification for our War of Independence. Its importance was expressed through the Virginia House of Burgesses, the Stamp Act Congress and the First Continental Congress, all of whom petitioned the Crown and Parliament in England for redress of their tax grievances. It was with this memory in mind that the Origination Clause of our Constitution was written, and without it at the core of the Great Compromise of 1787, the 13 original states would never have agreed to ratify the Constitution.

If we as members of Congress, who took a solemn oath to defend and protect the Constitution, including its Origination Clause, fail to assert this right and prerogative as the immediate representatives of the people and those most accountable to them, the Founders’ fears may well continue to materialize. As George Mason observed at the Constitutional Convention on Aug. 14, 1787: “[i]f the Senate can originate [taxes], they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried (to use a common phrase) for the meeting of the H. of Reps.”

If Congress is unable to defund an unconstitutional and unworkable Obamacare, the judiciary must do its duty and strike down the law as a violation of the Origination Clause. If it doesn’t, the Origination Clause, a vital provision that animated our governing document, will sadly become a dead letter.

Rep. Trent Franks, Arizona Republican, is chairman of the House Judiciary subcommittee on the Constitution and civil justice.

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