Opponents of the Patient Protection and Affordable Care Act are hoping the third time is the charm. Although the Supreme Court has twice upheld central features of President Obama’s signature health law in landmark decisions, conservative activists are still hopeful that another one of their legal challenges will get a day in front of the high court.
The lawsuit, Sissel v. U.S. Department of Health and Human Services, was filed by the Pacific Legal Foundation, a conservative advocacy group, and claims the PPACA is unconstitutional because it was passed incorrectly. Specifically, it claims the legislation is in violation of the Origination Clause in the Constitution, which specifies that all bills that raise revenue must originate in the House of Representatives, rather than the Senate. Although the PPACA was never marketed as a tax bill, the Supreme Court essentially ruled that the legislation –– specifically the individual mandate to buy insurance –– was a form of taxation in its first decision upholding the law in 2012.
The Sissel challenge seeks to invoke the Court’s first decision in favor of the PPACA to argue that the law is unconstitutional.
Writing in Newsweek, James Dorn, a legal fellow at the conservative Heritage Foundation, argued that the PPACA originated in the House “in only a very formalistic sense” under the title, “Service Members Home Ownership Tax Act of 2009.” Dorn writes that that bill, which did not deal with health care, was passed by the House and later dramatically altered by the Senate to incorporate the central features of what became the PPACA. He and the plaintiffs in the legal challenge thus argue that the bill’s most important revenue-raising aspects originated in the Senate, not the House.
So far, the judiciary has not been receptive to the lawsuit, which was first launched three years ago. The U.S District Court for the District of Columbia dismissed the suit in June 2013, a decision that was affirmed in July 2014 by the U.S. District Court of Appeals in Washington D.C. Just last week, the Court of Appeals denied a request by the plaintiffs to have the case heard “en banc,” a situation in which all of the judges in the circuit would hear the case. Typically, most cases are heard by a randomly-selected three-judge panel.
The only place for the case to go now is the Supreme Court. Whether the court will take up the case is anyone’s guess, although there appears to be very little expectation that a court that has already twice upheld the landmark legislation would rule to undermine it. Dorn points out that even Justice Antonin Scalia, the most vigorous dissenter in the previous two cases, has not been receptive to legal challenges based on the Origination Clause.