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Oops! Anti-Obamacare Lawsuit Would Invalidate Reagan Tax Law If It Succeeds

CREDIT: AP PHOTO/PATRICK T. FALLON
CREDIT: AP PHOTO/PATRICK T. FALLON

A lawsuit attacking the Affordable Care Act relies on such a sweeping legal theory that it would invalidate countless laws if it were successful — including a prong of President Ronald Reagan’s tax policy.

The latest chapter in the “never-ending saga” of lawsuits seeking to repeal the Affordable Care Act ended in failure on Friday, and in one of the most conservative courts in the country to boot — a unanimous panel of the United States Court of Appeals for the Fifth Circuit turned away an effort to strike down the entirety of Obamacare.

Hotze v. Burwell rests on an obscure provision of the Constitution which provides 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.” The bill that became Obamacare began as a House bill, so even if it counts as a bill “for raising Revenue” — itself a doubtful proposition — the requirement that the law had to “originate in the House” is met. Nevertheless, the plaintiffs in Hotze claim that the law is void because of the particular way that it became law. As the Fifth Circuit explains, the Affordable Care Act began in the House as an irrelevant bill known as the Service Members Home Ownership Tax Act. After that bill passed the House, “the Senate struck the language of the SMHOTA in its entirety and substituted the language of the ACA.” The plaintiffs claim that this practice, of replacing an entire bill with an amendment, is not allowed.

The problem with this argument, however, is the second part of the constitutional provision quoted above: “the Senate may propose or concur with Amendments as on other Bills.” There simply aren’t any limits, whether constitutional or otherwise, on the Senate’s power to amend bills to say something entirely different than what the House originally stated. Moreover, this power to enact amendments replacing bills in their entirety stretches back almost to the beginning of the republic. As Vice President Thomas Jefferson explained in an 1801 manual on parliamentary practice, “Amendments may be made so as totally to alter the nature of the proposition[.] . . . A new bill may be ingrafted, by way of Amendment, on the words ‘Be it enacted,’ &c.;”

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Indeed, the practice of amending a revenue raising bill in its entirety is sufficiently common that, were the courts to side with the Hotze plaintiffs, it would force them to go line by line through the entirety of federal law, effectively crossing out provisions at random. One law that would need to be crossed out is the Tax Equity and Fiscal Responsibility Act of 1982, a tax bill signed by President Ronald Reagan that was enacted through the very same process as the Affordable Care Act. That alone would raise a cloud of constitutional doubt over any tax filing that would have been different if Reagan had not signed this law more than three decades ago, casting the finances of the United States into chaos.

The Fifth Circuit, for its part, avoided the question of whether Ronald Reagan and Thomas Jefferson were right about the Senate’s power to amend legislation, instead kicking the case on the grounds that it lacked jurisdiction to hear it. Nevertheless, the decision, which was authored by the conservative Reagan appointee Judge E. Grady Jolly, is a significant setback for this effort to kill Obamacare. Though the lawyers behind this suit may be able to find a better plaintiff who does have standing to bring the suit, it will take months or even years for that case to work its way up to a Fifth Circuit panel. In that time, millions more Americans will sign up for health insurance under the Affordable Care Act, and a judicial decision repealing the law will become even more reckless — potentially deterring judges who would otherwise be inclined to stretch the law in order to strike a blow at the Affordable Care Act. (It’s worth noting that Hotze is not the only case raising the same legal challenge to Obamacare. Last July, a unanimous DC Circuit panel rejected a similar lawsuit on the merits.)

In an ironic epilogue to Hotze’s failed attempt to convince the judiciary to strike down one of the most consequential acts of Congress in a generation, a publicist representing Hotze emailed this reporter a few days after the Fifth Circuit announced that it would not overrule Congress’s decision to enact the Affordable Care Act. Hotze, the email announced, will speak to media at “a Restrain the Judges Press Conference at the steps of the U.S. Supreme Court the day before the oral arguments on marriage.” The email did not explain how Hotze squares his efforts to repeal the Affordable Care Act by judicial decree with the message of the “Restrain the Judges” event.