- The Washington Times - Thursday, May 8, 2014

A conservative legal group asked a federal appeals court Thursday to break new legal ground and overturn Obamacare by declaring it a tax bill that originated in the Senate — a violation of the Constitution’s demand that the House have exclusive right to initiate all revenue measures.

It’s an issue the courts have rarely dealt with, and only once has the Supreme Court struck a bill down under what’s known as the “Origination Clause” of the Constitution, lawyers said. But conservatives hope the U.S. Circuit Court of Appeals for the District of Columbia will venture into virtually uncharted territory and strike a death blow against the Affordable Care Act.

“What happened here is unprecedented and very unique,” said Timothy Sandefur, the lawyer for the Pacific Legal Foundation who argued the case.

The three judges on the panel gave little indication how they were leaning, though it appeared the challengers have a high legal bar.

The judges also took up another Obamacare case Thursday, hearing the challenge from Priests for Life and the Catholic Archdiocese of Washington, which both argue the administration’s policies violate their religious rights by requiring that employees of religiously affiliated groups get free contraception under their health plans.

At issue in that case is whether the act of certifying they are religious organizations is the key step that triggers the government to order they be granted contraceptive coverage by a third-party administrator outside of their regular health plan.

Noel Francisco, the lawyer for the archdiocese, said it is.

“That certification renders them morally complicit in immoral conduct,” he argued. The Catholic Church teaches both that contraception is intrinsically immoral and that to cooperate with another person’s evil act is itself morally wrong.

But the Justice Department, which defended the Affordable Care Act in both cases, said the administration “bent over backwards” to find a way to divorce religious affiliates from having to provide coverage. Instead, the contraceptive coverage is provided by a third party who makes it clear it’s not connected to the religious group’s plan.

In the Origination Clause case, the issues involve whether the Constitution allows the tortuous path the bill took to become law, and the fact that the Supreme Court has now judged Obamacare to be a tax for at least some readings of the law.

Senate Democrats took a House bill that referred to the tax code but was completely different, stripped out all of the language and replaced it with the massive Obamacare language.

It’s a practice that’s gone on for decades, and has rarely drawn a challenge.

The judges grappled with whether they should even question a bill Congress has passed, wondering whether the fact that the House accepted and passed the Senate version means lawmakers thought it met the intent of the Origination Clause.

The clause was designed to be a protection. Given that House members were directly elected by voters every two years, it was thought they were closer to the people and so should have the power to initiate tax bills.

But the Constitution gives the Senate rights to amend those bills, and the question is how much leeway that amendment power gives.

The judges seemed to be searching for any guidance that could be gleaned from the founding fathers, but ran into conflicting readings.

Alisa Klein, the Justice Department lawyer in the case, pointed to the 1787 constitutional convention’s debates in saying the founders anticipated the Senate being able to change revenue bills at will.

Mr. Sandefur said James Madison, speaking in the Virginia ratification debate a year later, said the Senate couldn’t just substitute its own version and send it back to the House. But Ms. Klein said the House in this case passed the version the Senate sent over — an indication that it didn’t see the bill as an infringement on its powers.

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