Con­ser­va­tive group tar­gets health care ‘tax’

Suit based on Con­sti­tu­tion’s ‘Orig­i­na­tion Clause’

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

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.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.