Constitution Check: Is Obamacare headed for new trouble?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the two latest court challenges to the Affordable Care Act, or Obamacare, which involve two constitutional clauses.



“The Origination Clause [in Article I] was designed to ensure as much democratic control as possible over the taxing power, by vesting that power in a House of Representatives elected biennially by the people. The [Circuit Court’s] new test allows the Senate to circumvent that constitutional mandate merely by asserting that a tax the Senate originates is meant to serve some larger goal, or by embedding that tax in an omnibus bill that serves a variety of different goals….This upsets the longstanding balance of power between the House and the Senate…and endangers the liberty secured by the Constitution’s procedural requirements.”

– Excerpt from a new appeal filed October 26 at the Supreme Court by a legal advocacy group, the Pacific Legal Foundation, in a case on the constitutionality of many of the key sections of the Affordable Care Act.

“[The government] strongly disagrees with the court’s decision holding that the House of Representatives has institutional standing to sue over the alleged spending of billions of dollars [under the Affordable Care Act] without a congressional appropriation, in violation of the U.S. Constitution….The government will have a chance to make its arguments to the Court of Appeals; the only question is whether it may do so now….The motion [to allow an immediate appeal] is denied.”

– Excerpt from a ruling October 19 by U.S. District Judge Rosemary M. Collyer of Washington, D.C., refusing to allow the Obama administration to take an immediate appeal to the Court of Appeals for the District of Columbia Circuit in an attempt to scuttle the House’s constitutional challenge to spending of $250 million a year to pay for subsidies under the new health care law.


When Congress and the presidency team up to create a truly sweeping new federal program, it is bound to stir up fundamental constitutional challenges. Energetic use of national power seems always to be suspect, at least to some critics in America. Provisions of the Constitution that do not often get examined by the courts re-emerge in new cases, taking the courts back to the basics of how power is to be divided up.

The truly ambitious plan to overhaul the nation’s health care system – the Affordable Care Act (popularly, Obamacare) – has been under that kind of core protest from the very hour that President Obama signed it in March 2010. Already, in the historically short span of five years, it has withstood two such challenges in the Supreme Court – first, the challenge to the law’s mandate that nearly everyone in the nation obtain health insurance or pay a penalty, and, second, the law’s system of subsidies to help lower-income people afford health insurance for the first time. .

It is not too much to suggest that a loss for the Act in either of those cases might have brought about a re-ordering of constitutional authority, with the likely demise of the Act itself, and the Supreme Court showed, both times, that it was not ready for that.

Still, the Act remains bitterly contested, and there is as yet no sign of when the legal siege might actually come to an end. It is plain, though, that the legal protests will likely run through the rest of President Obama’s time in office, and perhaps beyond, if the Act remains on the books.

Moving into line as the next two challenges, at the basic constitutional level, are court battles over two provisions in Article I: the Origination Clause, and the Appropriations Clause.

The first of those requires that all federal legislative bills “for raising revenue” must begin in the House of Representatives, although the Senate has the authority to amend such measures. After all these decades of constitutional history, it is still not entirely settled just what is a bill to raise revenue, and just how far the Senate is free to go to amend revenue bills.

The second of those provisions bars the spending of any federal funds out of the U.S. Treasury unless Congress has approved such spending in advance. Because the process of authorizing and appropriating spending has grown immensely complex, it remains something of a puzzle just when the government is free to spend federal money.

A court case that has just arrived at the Supreme Court aims at using the Origination Clause to strike a crippling blow at Obamacare. Many of the interacting parts of the Act depend upon new tax provisions – including the penalty to enforce the individual mandate. But the Act did not get its start in the House; a completely unrelated piece of legislation that did start in the House went over to the Senate, and that chamber simply substituted – totally – all of the new health care law.

Lower courts have rejected that protest, on one of two grounds: either that the Act is not a revenue-raising measure at all, or that the Senate has the authority to amend it as it did. The challengers are seeking to contest both of those findings in the new appeal, which the Justices may act upon early next year.

On a slower timetable, at least for now, is a court case that seeks to use the Appropriations Clause to stop the government from spending some $250 million a year to support the complex scheme of subsidies in the Act – subsidies that have enabled millions of consumers to afford health insurance for the first time. The House of Representatives, in a truly rare move, has sued the Executive Branch with the claim that Congress has never given its approval to those specific outlays of federal money.

The government has tried to persuade a federal trial judge that the House should not be able to sue over what the government insists is nothing more than a spat over how the Executive Branch carries out its duty to implement a law. That, too, is a claim based directly on the Constitution: the provision in Article III that federal courts can only hear live cases or controversies, not theoretical or merely political disputes. So far, the judge has allowed the lawsuit to go forward, and recently refused to let the government push the right-to-sue issue up to a federal appeals court to get it resolved before any further unfolding of the case.

The judge in the case, Rosemary M. Collyer, has chosen to keep the case in her court until she decides whether the House is right in its challenge to the spending, and she has already shown some sympathy for the House’s claim. That is likely to keep the case going in her court at least through the early part of next year. In fact, the court battle the House has started might run on until after President Obama has left office.

The constitutional legacy of the Act, therefore, remains a work in progress.

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