D.C. Circuit, Federal Government, Federal Judges, Politics, Public Interest

Liberal Critiques Of Challenges To Obamacare: 2 Errors Worth Correcting

On Tuesday, the D.C. Circuit ruled against Matt Sissel, the Iowa artist and entrepreneur who challenged the Affordable Care Act’s individual mandate on the grounds that the law violated the U.S. Constitution’s Origination Clause. Article I, § 7, clause 1 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.” Obamacare raises government revenue by billions of dollars, but it was drafted in the Senate. Judge Judith Rogers wrote the opinion in Sissel v. HHS for a panel including two newly minted Obama appointees, Judge Nina Pillard and Judge Robert Wilkins.

This ruling comes in the wake of last week’s dueling decisions in Halbig v. Burwell and King v. Burwell. Another D.C. Circuit panel found that Obamacare subsidies were illegal in the 36 states that refused to set up state healthcare exchanges. On the same day, the Fourth Circuit disagreed. In court battles, Obamacare opponents are winning some and losing some.

What should we make of their track record so far?

Many liberal critics continue to paint legal challenges to Obamacare as absurd: strained legal gymnastics performed by bitter, even mean-spirited, zealots hell-bent on thwarting the public will. David Weigel calls libertarians’ attempts to change Obamacare “a sophisticated campaign of debating and gaslighting, aimed at making Obamacare unworkable through citizen boycotts and legal victories.” Weigel recently penned a piece called “The Great Obamacare Gaslighting of 2014.” Professor Richard L. Hasen considers the central question to be, “Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?” Emily Bazelon describes the challenges as “picking at the statute’s loose threads” and “reading a text so myopically that you miss its larger meaning.”

These caricatures are unfair, regardless of one’s views on healthcare. Liberal treatment of legal challenges to the ACA is mistaken on two levels. First, serious concerns about statutory and constitutional interpretation, and the legislative process itself, drive the claims. Overlooking those concerns, or minimizing their gravity, is short-sighted. Second, liberal commentators’ derision of libertarian and conservative activists reveals a deep, hypocritical bias.

Before looking closer at these mistakes, consider some background leading up to Sissel. Recall that Obamacare as we know it originated when the Senate “amended” a House bill titled the Service Members Home Ownership Tax Act of 2009. The Senate’s amendment completely replaced the full text and title of the original bill. The new ACA bill retained the Service Members Act label “House Resolution (H.R.) 390.” Every other identifier — every wit and jot of the bill itself — was changed. Congress refers to this switch as an “amendment in the nature of a substitute.”

This process of full substitution recalls the Ship of Theseus paradox. To show the philosophical puzzle of preserving identity through time, Plutarch asks us to imagine the rebuilding of a wooden ship. If each and every plank of the original ship is replaced, if none of the original materials remain, is it the same ship in the end? How can the original and the complete substitution be identical?

Congress resolves the legislative equivalent of the Ship of Theseus paradox by invoking its rule on amendments in the nature of substitutes. H.R. 3590 was the Service Members Act. Now it’s the Affordable Care Act. With no overlapping text or title, they are still the same bill. An ancient paradox is put to bed through Congressional rule-making.

What’s the upshot of amendments in the nature of substitutes? When the Senate crafts a gargantuan healthcare bill that raises billions of dollars in revenue, it can technically skirt the Constitution’s express requirement that all revenue-raising bills originate in the House. Matt Sissel, and the Pacific Legal Foundation lawyers representing him, saw this as a fatal flaw in how Obamacare became law.

When the D.C. Circuit heard Sissel’s case, the panel preferred not to wade into deep ontological waters. Instead of unraveling the paradox of substitutes, the court held that ACA’s mandate is not a law about raising revenue all. So, it doesn’t matter whether it originated in the Senate or the House. Judge Rogers wrote, “Where, as here, the Supreme Court has concluded that provision’s revenue-raising function is incidental to its primary purpose, the origination clause does not apply.” The fact that the law “generate[s] substantial revenues” did not persuade the panel that the bill preceding it was “for raising Revenue.”

Todd Gaziano, Pacific Legal Foundation’s senior fellow in constitutional law, explained in an email why the issue matters:

The DC Circuit’s ruling is based on a supposed huge loophole in the Origination Clause which has no support in the Constitution’s text and is strikingly at odds with the original understanding of it as well. The Origination Clause codifies a venerable protection of liberty that requires “Bills for raising Revenue” to originate in the People’s House, or U.S. House of Representatives. In the DC Circuit’s view, Congress can evade that requirement and impose 17 historically large taxes if it declares that the “primary purpose” of those massive tax increases is something other than raising revenue, perhaps supporting the national defense or expanding healthcare coverage. Overturning the unconstitutional process used to pass ObamaCare is worthy in itself, but in the long run, it is far more important to restore the protection for liberty in the Origination Clause from further abuse, which is why PLF will seek further review of the panel decision.

Despite liberal media commentary, if there is shiftiness afoot, Congress and the D.C. Circuit panel are more likely responsible than the libertarians challenging this misunderstanding of constitutional governance. While underestimating the importance of certain constitutional principles is bad, underestimating the importance of fairness and consistency in debate may be worse.

This is the second mistake made by many liberal critics of Obamacare challengers: they belittle and villainize libertarians for using the same strategies that they lionize liberals for using. Liberal public interest lawyers routinely evade the criticism conservative and libertarian ones are expected to tolerate.

Public interest litigation is premised on the idea that one way to achieve righteous social outcomes is through the courts. Public interest lawyers use carefully selected cases to steer society toward policy the lawyers believe to be just and moral. Their success comes in plodding increments, sweeping sea changes, or not at all. However it comes, “success” for public interest lawyers means affecting social change and advancing interests beyond an individual client. Public interest litigators must use the legal tools available to them, in order to prevail.

For example, many lawyers filing constitutional claims on behalf of death row inmates think state executions are fundamentally immoral. We don’t encourage them to barrel into court arguing ethics. We expect them to frame their cases in legal terms that are most likely to advance the interests of their particular clients, while also chipping away at a policy they dislike. There’s nothing automatically disingenuous about this approach. Moral or social concerns about broader policy don’t preclude liberal public interest litigators from their work.

Unless your picture of fairness, freedom, and morality includes conservative or libertarian values, it seems. In that case, you are probably “picking at loose threads,” waging “a sophisticated campaign of debating and gaslighting,” and aiming to make the laws you sniff at “unworkable through citizen boycotts and legal victories.”

Courts have yet to determine the ultimate outcome in Matt Sissel’s case, or the other recent ACA challenges. By the time the courts correct any of their errors, let’s hope that liberal commentators manage to correct theirs.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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