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Obamacare's Constitutionality and the Origination Clause: New Evidence

Obamacare's Constitutionality and the Origination Clause: New Evidence

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

This article originally appeared at the American Thinker.

One of the constitutional disputes triggered by the Affordable Care Act, Obamacare, is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure. This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.

A recently-republished piece of evidence suggests that they did.

The Constitution’s Origination Clause requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”

Obamacare’s taxes, appropriations, and health-care regulations did not exist in the House-passed version of H.R. 3590. That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care. Under the guise of amendment, the Senate gutted the original language and substituted over 2000 pages of Obamacare.

Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were. Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy. The article is summarized at length here.

I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House-origination rule. I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.

This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution. Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.

The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson. Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia. At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation. Hanson argued that proposing a substitute was a recognized form of “amendment:”

Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.

Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions. Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.

Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality. During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill—or, in modern language, “germane” to the original. Otherwise, they were new bills, not valid amendments.

For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code. Under Founding-Era rules all the Senate’s revenue changes were germane to the original, and therefore valid. However, the Senate-added appropriations and regulations were not germane to the subject of revenue. By including them, the Senate exceeded its authority to amend a “bill for raising Revenue. This means that by the Founders understanding of the Origination Clause, those additions were unconstitutional and void.

King v. Burwell: The Latest Obamacare Mess at the Supreme Court

King v. Burwell: The Latest Obamacare Mess at the Supreme Court

A true environmentalist
A true environmentalist

When I first heard about King v. Burwell, the latest Obamacare controversy before the U.S. Supreme Court, I assumed it was the kind of case in which the legislative intent was clear, but for one reason or another the wording of the statute did not match the legislative intent.

That would have been an interesting case, because it would have given the Court a chance to struggle with age-old “intent vs. text” questions.

It turns out, though, that the legislative intent is unclear—if there was any unified intent at all. And the statute is at least as messy as the evidence of intent.

First as the intent: Whether Congress intended for tax credits to go to citizens of states that had not adopted state insurance exchanges depends on whom you ask. The government now says “yes,” but Obamacare architect Jonathan Gruber was captured in two separate YouTube videos saying “no.” In those videos, he claims that tax credits were to be limited to states that set up their own exchanges as a way of inducing states to cooperate (no exchange, no tax credits). Some in the media assert that a decision for the plaintiffs (limiting credits to insurance purchased on state-created exchanges) would create “chaos”—but if Gruber is right, then that was exactly what Congress wanted.

Now for the text: Reading the record in this case give you some idea of how poorly drafted the Obamacare law is. Section 1311(b)(1) of the statute requires the states to establish exchanges. A provision just a few sections later (1321(b)) tells states they may elect to establish exchanges, and another (1321(c)) provides for federally-created substitutes.

Still another section says that tax credits are available for insurance purchased on “exchanges.” In at least two provisions, the statute inserts cross references that make it crystal clear it means state-created exchanges—not the federally-created substitutes.

But still other provisions seem to assume that state-created exchanges, and therefore the tax credits, will exist in all states. But for this to be so, then the statute’s drafters had to assume that the first section (mentioned above) ordering the states to set up such exchanges was valid. Problem is, that section is clearly unconstitutional: The Supreme Court has ruled several times that the federal government may not simply order a state to adopt a law or perform a task. Whoever wrote that section had never studied elementary constitutional law, or perhaps didn’t care.

There’s another wrinkle: The way the case got to the Supreme Court is that the plaintiffs challenged an IRS interpretation of the statute. Specifically, the IRS read the law as requiring tax credits in all states. Now, as a rule of thumb (under the Court’s Chevron holding), the Court defers to any reasonable executive-branch interpretation of an ambiguous statute. But the traditional legislative grace canon holds that the Chevron rule doesn’t apply in tax-credit cases, because taxation is so central to the legislative (as opposed to the executive) power.

One argument for tax credits in all states, possibly originated by Justice Kennedy, acknowledges that the law’s mandate on states to create exchanges is unconstitutional. It also assumes that interpreting the statute to provide for credits only in states that establish their own exchanges would be unconstitutional as excessive federal “coercion.” This argument therefore concludes that the statute must be construed to provide for tax credits in all states.

There are two problems with this argument. First, if severe financial consequences for state non-cooperation constitute “coercion,” then certain other federal welfare programs, particularly Medicaid, are unconstitutional. It is unlikely that anyone who would advance this argument would really support that result. Second, by universalizing the tax credits, this argument rewards an overreaching federal government by authorizing it to spend even more money and thereby control even more lives than otherwise. It is an elementary legal principle that no one should be rewarded for his own wrong.

When faced with incurable problems in a statute, judges’ time-honored solution is to kick the issue back to the political branches for a solution. (The courts often follow a similar approach in the common law—that is, ruling in a way that forces the parties to negotiate their way out of the problem.)

Deciding the case for the plaintiffs (denying tax credits in states that do not adopt exchanges) will create either (1) a mess intended by Congress or (2) a mess not intended by Congress. Either way, the public anger generated by loss of tax credits will force Congress and the President to work together to clear matters up.

That’s exactly what the Supreme Court should do.

Chief Justice John Marshall: Not the Big Government Guy You Might Think

Chief Justice John Marshall: Not the Big Government Guy You Might Think

John Marshall
John Marshall

Chief Justice John Marshall (in office 1801-1835) is often identified with an expansive “big government” interpretation of the Constitution. Fans of big government cite him as an ally; opponents as an enemy.

This view of Marshall is a caricature. It is true that Marshall was a Federalist—he occupied a place on the political spectrum of his day closer to Alexander Hamilton than to Thomas Jefferson. But to say that he subscribed wholly to Hamilton’s constitutional views would be untrue. It is even more inaccurate to claim him as a justice who would uphold the constitutionality of the modern federal regulatory welfare state. Marshall was far more moderate than that.

The caricature of our greatest Chief Justice was created in his own time by his political opponents. In the modern era it has been nurtured by “progressives” who claim Marshall for their version of the Constitution. Among the latter group are Supreme Court justices who quote his words out of context, book authors who omit critical passages from his opinions, and law professors unfamiliar with other things Marshall wrote and with the law and language of his time.

In 2011, I authored an article correcting the record. I also co-authored another with the Independence Institute’s own Dave Kopel, explaining why Marshall would have held Obamacare to be unconstitutional.

Now Dr. Thomas K. Lindsay of the Texas Public Policy Foundation has joined in. A new contribution by Dr. Lindsay relies mostly on my research, but he introduces it to a new and much larger audience. You can read Dr. Lindsay’s essay here.

And here is my own detailed posting on the subject.

Is Obama Violating the "Take Care" Clause?

Is Obama Violating the "Take Care" Clause?

2013-0822 RGN
The Constitution requires the President to “take Care that the Laws be faithfully executed.” This “take Care” language came from 18th century commissions and formal instructions by which higher officials delineated what lower officials were to do. The premier examples were royal instructions to colonial governors, but the Continental and Confederation Congresses used the same language in instructing civil and military officials.

The Constitution’s language is both a grant of enumerated power to the President and a mandatory duty imposed on him.

The Obama administration’s partial refusal to enforce various laws has raised questions of whether the President is violating the Constitution’s command, and thus committing an impeachable offense.

The question can be a difficult one, because everyone recognizes that the President has some discretion in exercise of the executive power. For example, the cost of full enforcement might be far greater than the appropriated funds for enforcement, requiring the President to set priorties. Also, fully enforcing the law against some persons technically in violation can work great injustice.

So is Obama violating his constitutional duty or not? Legal scholar Zachary Price examines this question in a thoughtful, balanced article written for Vanderbilt Law Review.

He concludes that in its partial non-enforcement of marijuana laws, Obama is within the scope of his discretion, although somewhat close to the line. Obama crossed the line, however, in refusing to enforce mandates imposed by the Affordable Care Act (Obamacare) and in granting exemptions from the immigration laws to whole classes of people.

Professor Price finds that the George W. Bush administration also exceeded the scope of its discretion in underenforcing “New Source Review” environmental laws.

More Evidence From Last Term That It's Not a "Conservative Supreme Court"

More Evidence From Last Term That It's Not a "Conservative Supreme Court"

Rob at the Univ. of Montana
Rob at the Univ. of Montana

Note: This article was first published at cns news.

There is a common media myth that the current U.S. Supreme Court, or at least a majority of the current justices, is “conservative.”

But if a “conservative” justice is one who consistently interprets the Constitution in accordance with traditional methods of judging—as the Founders intended for it to be interpreted—then the Court is anything but conservative.

On social issues the Court has been pushing society to the Left. Otherwise, the best description of its jurisprudence is “status quo.” And in this instance, preserving the status quo renders the Court liberal, not conservative.

That is because the status quo the justices are preserving is a body of liberal jurisprudence created in the 20th century when the Court was usually controlled by “progressive” majorities.

The Court’s tendency to protect liberal jurisprudence appears even in cases where the specific outcomes are pleasing to conservatives. In fact, the “conservative” outcomes often are relatively marginal—minor victories—while the jurisprudence that underlies the result is a major triumph for liberals.

Three cases from the Supreme Court term illustrate the point.

The first is the famous Hobby Lobby case, in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protects an employer’s right not to provide abortifacients. I have written elsewhere about a liberal victory in Hobby Lobby that received almost no publicity. But there was another, more important, liberal victory on a point of fundamental principle.

The Hobby Lobby dispute arose from federal regulations of employment and of health insurance purportedly authorized by Congress in the Affordable Care Act (Obamacare). Unlike the “tax” justification for Obamacare’s individual insurance mandate, the supposed constitutional basis for those regulations is Congress’s Commerce Power, contained in the Constitution’s Commerce Clause and Necessary and Proper Clause.

Everyone concedes, at least in theory, that Congress has only the authority the Constitution grants it—Congress’s “enumerated powers.” But properly construed, Congress’s enumerated power to regulate “Commerce” does not encompass employment relations or insurance, except in some peripheral situations. The Supreme Court recognized this consistently for the Constitution’s first 150 years. Indeed, during that time the Court held repeatedly, and unanimously, that most insurance is NOT “Commerce.” It was not until “progressive” justices took control in in the late 1930s and 1940s that the rules changed, and it was not until relatively recently that Congress began systematically to interfere in the insurance market.

A bench consisting of traditional (conservative) justices, therefore, would have held that the Obamacare regulations were outside the federal government’s enumerated powers, and thereby invalid for that reason. Such a court would not have reached the RFRA issue because there was no need to do so.

A second example from the Supreme Court term just past is the campaign finance decision in McCutcheon v. Federal Election Commission. This case invalidated a congressional effort to limit the total amount any person could donate to all candidates combined. The basis for the decision was the Free Speech Clause of the First Amendment. Media outlets have described this case also as a “conservative” triumph.

Yet a truly conservative court would never have reached the First Amendment issue because in presuming to regulate campaigns, Congress again exceeded its enumerated powers. The Constitution does confer on Congress authority to regulate the “Manner of holding [congressional] Elections.” But this constitutional grant does not extend to regulation of campaigns.

The scope of the constitutional grant is quite clear from the historical record, as I explained at length a 2010 article cited last year by Justice Thomas, the only member of the Court who consistently interprets the Constitution in the traditional (“conservative”) manner. Congress’s authority to regulate “the Manner of holding Elections” refers strictly to voting mechanics. For example, Congress may specify whether we vote by open or secret ballot and whether a candidate needs a majority to win or can win by a plurality. But the Constitution leaves regulation of campaigns to state laws governing defamation, corrupt practices, and so forth.

The Supreme Court did not hold that “Manner of Election” included campaigns until a “progressive” majority did so in 1941. The Court’s accompanying opinion was based on little or no inquiry into the real meaning of the constitutional language.

Yet in McCutcheon the justices (and the parties) accepted that suspect holding without question, and proceeded immediately to the First Amendment issue.

The third example from the term just ended is NLRB v. Noel Canning, which unanimously invalidated some of President Obama’s “recess appointments.” The Constitution’s Recess Appointments Clause is an enumerated power of the President that grants him the prerogative, without Senate consent, “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court needed to decide (1) whether the “Recess” meant only the intersession recess or encompassed other breaks as well, and (2) whether for a vacancy to “happen” it had to arise during the recess or could merely continue into a recess.

The Founding-Era record is crystal clear on both questions: A “Recess” means only an intersession break and the vacancy must arise then. A traditional (“conservative”) bench would have so found. And, in fact, four justices did so find—relying on an article I wrote earlier this year that documented the Founders’ understanding at length.

But the majority did not follow the Recess Appointments Clause as the Founders understood it. Rather, it applied a sort of balancing test of the “living constitution” variety. President Obama lost only because he had violated even that flaccid and malleable standard.

The result was a small conservative victory, but at great cost: That cost was a complete revision and a serious weakening of an important constitutional check-and-balance—yet another example of the fundamentally liberal jurisprudence of a Court that many in the national media insist on calling “conservative.”