On August 7, 2015, the United States Court of Appeals for the District of Columbia Circuit rejected a petition for a rehearing en banc (by the entire court) in the case of Sissel v. Department of Health and Human Services. Mr. Sissel had sued, claiming that the Affordable Care Act’s individual responsibility requirement had been adopted in violation of the Constitution’s Origination Clause and should therefore be invalidated. Mr. Sissel’s claim had been rejected by both the district court and a panel of the appellate court. The August 7 decision upholds the panel’s decision.
Four of the eleven D.C. Circuit judges who ruled on the motion for a rehearing en banc dissented from the decision of the entire court — not because they disagreed with the result, however, but because they disagreed with the panel’s reasoning. The three judges who wrote the original panel decision concurred in the rehearing denial, contending that their initial decision was not only right as to the result but also as to the reasoning.
The Origination Clause, article I, section 7, clause 1 of the Constitution states that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The panel had held that the Origination Clause does not apply to the ACA because it was a bill to overhaul the nation’s health care system, not to raise revenue. In their concurring opinion, the three members of the original panel contended that their decision was supported by controlling Supreme Court precedent, and was the most appropriate approach to resolving the case.
The four dissenters took strong exception to the panel’s conclusion, arguing that the ACA was in fact a bill that raised substantial revenue. They would not have invalidated the ACA, however. Rather, they contended that the court should have relied on the plenary authority of the Senate to amend House bills that in fact were revenue bills. The Service Members Home Ownership Tax Act of 2009, the original House bill that the Senate amended to create the ACA, was in fact a bill to raise revenue. There is no requirement that Senate amendments be germane to the original House legislation, and the “gut and replace” approach used by the Senate has often been used before for adopting legislation. Therefore the ACA is valid.
The opinions are full of learned analysis of the controlling Supreme Court cases and of the positions of the framers of the Constitution. The dissenters argue forcefully that their approach is necessary to preserve the principle of separation of powers and, indeed, individual liberty itself. In the end, however, the dissenters would have simply reversed and remanded, vacating the panel decision and ruling for the government on the grounds that the House legislation was properly amended in the Senate.
Whichever side prevailed in this dispute, the ACA would still have been preserved. Mr. Sissel is reportedly going to seek Supreme Court review, but it is hard for me to believe that the Supreme Court will take certiorari to resolve this issue if nothing turns on it in the result, particularly given the grief that ACA cases have caused the Court in the past.
The Fifth Circuit Court of Appeals is currently considering a request for a rehearing en banc in another Origination Clause case, Hotze v. Burwell. In that case, a panel of the Fifth Circuit Court of Appeals threw the case out on jurisdictional grounds; the panel held that the individual plaintiffs were not injured by the individual mandate which they questioned, and that a challenge to the employer mandate brought by employers was barred by the Tax Anti-Injunction Act, which prohibits lawsuits to enjoin the collection of a tax. Although the decision of the D.C. Circuit does not touch on those issues, as a practical matter the Fifth Circuit may be less likely to grant en banc review—which is rarely granted in any event—if it is persuaded that the end result would be to rule for the government, as the Texas district court originally did in Hotze and as all of the judges of the D.C. Circuit would have done in Sissel.
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