On Friday, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Association of American Physicians and Surgeons v. Sebelius, rejecting several challenges to the constitutionality or implementation of the Patient Protection and Affordable Care Act (PPACA). Among the claims made by AAPS is that Congress violated the Constitution’s Origination Clause in enacting the PPACA. Specifically, AAPS alleged that insofar as the PPACA contained revenue-raising measures, such as the individual mandate (recognized as a “tax” by the Supreme Court in NFIB v. Sebelius), the bill had to originate in the House of Representatives. This is a potential problem for the PPACA because, although the PPACA utilized a House bill number, the substance of the bill was produced in the Senate.
The Origination Clause argument forces courts to choose whether it is enough that Congress observes simple formalities — using a bill passed by the House as an empty shell for a bill drafted in the Senate — or whether Congress must also fulfill the substance of constitutionally mandated procedural rules. The point of the Origination Clause is that the House of Representatives would provide a greater check on the abuse of the taxing power, as the House is closer to the people: House districts are smaller, representatives stand for election every two years and, at the time of the founding, only the House was subject to popular election. If the Senate can make an end-run around the Origination Clause by substituting its own bill for something unrelated passed by the House, the clause does not serve its intended purpose. On the other hand, courts are understandably reluctant to look under the hood and scrutinize legislative procedures.
The D.C. Circuit did not have to address the substance of the Origination Clause challenge in AAPS v. HHS as it concluded this claim had been waived below. This is not the end of the issue, however. . . .