Justice Roberts Turns Obamacare Into Origination Clause Shell Game

By Michael Patrick Leahy | July 1, 2012 |  Breitbart News

Chief Justice Roberts’ ruling Thursday in NFIB v. Sebelius is a bitter loss for constitutional conservatives, delivered to us by a judicial Benedict Arnold. Forget the so-called long term victory contained in the commerce clause limitations. There’ s no denying that Roberts’ majority opinion represents a clear judicial defeat for defenders of the Constitution and individual liberty.

Roberts knew he was conjuring up a decision that would make the American people wretch. But judicial activism to limit the power of the individual and extend the powers of the federal government has been going on since the Supreme Court first caved to FDR’ s power grabs in a series of capitulations that culminated in the odious 1942 Wickard v. Filburn decision.

Now comes the equally odious NFIB v. Sebelius decision, in which Roberts rewrote a law from the bench. The Chief Justice wasn’t writing a legal opinion. He offered a political solution. More importantly, he just told us which team he’s playing on. He’s with the anti-constitutionalists. His legacy as their champion is secure.

Roberts’ decision to call the individual mandate a “tax” placed the Patient Protection and Affordable Care Act in violation of the Constitution’s Origination Clause. Article 1, Section 7, Clause 1 states: “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 legislative history of the Patient Protection and Affordable Care Act is clear. The only thing about the law that “originated” in the House of Representatives was the bill number, H.R. 3590.

As I wrote in my book, Covenant of Liberty:

On September 17, 2009, Congressman Charlie Rangel introduced a bill in the House, H.R. 3590, the “Service Members Home Ownership Tax Act of 2009,” whose purpose was “to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees.” The bill passed the House on October 8 by a 416-0 vote.

On November 19, Harry Reid introduced his own version of H.R. 3590 in the Senate. He took the bill that had been unanimously passed by the House, renamed it the “Patient Protection and Affordable Care Act,” deleted all its contents after the first sentence, and replaced it with totally different content.  What followed was the first pass of the Senate version of ObamaCare.

In his majority opinion, Justice Roberts failed to even mention the bill’s legislative history. He ignored the Origination Clause problem presented by Senate Majority Leader Reid’s “shell bill” and its constitutional circumvention. Presumably, he relied upon the “enrolled bill rule” established in the Court’s 1892 Marshall Fields Co. v. Clark decision as an excuse to overlook Senator Reid’s fraudulent trickery. Under the “enrolled bill rule,” the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the “proper origination of the bill.”

Roberts may have also relied upon a very recent and highly suspect legislative precedent that some claim established the legitimacy of this “shell bill” Origination Clause scam. It was the same tactic used when the Senate passed the infamous TARP Bailout Bill in October, 2008.

Roberts did, however, argue emphatically in the grotesquely twisted logic of his majority opinion that the penalty to be paid by individuals who failed to purchase health insurance was a tax. He made this dubious argument despite the facts that the bill itself fails to mention the word “tax,” and President Obama and the Democratic members of Congress who passed the bill in 2010 vigorously denied on innumerable occasions prior to its passage that it was a tax.

In effect, Justice Roberts became the second con artist in a two-man bait and switch scam. Had President Obama called the individual mandate a “tax” prior to its passage, it simply would have not had the political steam to pass. After all, it only became law by the barest of margins using the most deceptive of techniques. Justice Roberts effectively announced that the federal government had been kidding all along. Yes, of course, he said, the individual mandate was a tax.

Having accepted the “shell bill” scam, Roberts was now forced to play an Origination Clause “shell game.” Rather than explain why the Senate’s ruse did not circumvent the Framers’ clear intent in the Origination Clause, Roberts ignored the question entirely. But as James Saturno of the Congressional Research Service wrote in “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement,” there is good recent judicial precedent to invalidate this particular legislative chicanery:

Read the full article here.

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