Sissel v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW SISSEL,
Plaintiff,
Civil Action No. 10-1263 (BAH)
v.
Judge Beryl A. Howell
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.
MEMORANDUM OPINION
Pending before the Court is a facial constitutional challenge to 26 U.S.C. § 5000A, which
is the requirement to maintain minimum essential insurance coverage contained in the Patient
Protection and Affordable Care Act, as amended. The plaintiff, Matthew Sissel, complains that
this minimum coverage provision—commonly referred to as the “individual mandate”—is
unconstitutional because Congress lacked the power to enact it under the Commerce Clause of
the Constitution, and also because it was passed in violation of the Origination Clause of the
Constitution. The defendants, who are the primary government agencies and officials charged
with overseeing the implementation of the individual mandate, have moved, under Federal Rule
of Civil Procedure 12(b)(6), to dismiss the plaintiff’s complaint for failure to state a claim on
which relief may be granted. In that motion, the defendants contend that the plaintiff’s
Commerce Clause arguments are foreclosed by the Supreme Court’s decision in National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). The defendants also
argue that the plaintiff’s Origination Clause allegations fail to state a claim because the
individual mandate is neither a “Bill[] for raising Revenue” subject to the Origination Clause,
1
nor a bill that originated outside the House of Representatives. For the reasons discussed below,
the Court grants the defendants’ motion.
I. BACKGROUND
A. The Affordable Care Act’s Minimum Coverage Provision
The Patient Protection and Affordable Care Act (the “Affordable Care Act”) began as a
bill introduced in the House of Representatives entitled the “Service Members Home Ownership
Tax Act of 2009.” See H.R. 3590, 111th Cong. (2009). That bill proposed certain amendments
to the Internal Revenue Code, including provisions that extended tax benefits to members of the
military, the Foreign Service, or the intelligence community who are called to extended duty
service, as well as a provision that increased the estimated tax payments owed by corporations
with at least $1 billion in assets. See id. §§ 2–3, 6. That bill passed the House of Representatives
by a vote of 416 to zero. See 155 Cong. Rec. H11126–27 (daily ed. Oct. 8, 2009). Upon arrival
in the Senate, the entire text and title of the bill were stricken except for its enacting clause, and
in its place was inserted the text and title of the Affordable Care Act. See 155 Cong. Rec.
S11607 (daily ed. Nov. 19, 2009). 1 That version of the bill passed the Senate on December 24,
2009 by a vote of sixty to thirty-nine, see 155 Cong. Rec. S13890–91 (daily ed. Dec. 24, 2009),
and later passed the House on March 21, 2010, by a vote of 220 to 211, see 156 Cong. Rec.
H1920–2169 (daily ed. Mar. 21, 2010).
On March 23, 2010, the Affordable Care Act was signed into law. See Pub. L. No. 111-
148, 124 Stat. 119. One of the provisions in the Affordable Care Act is a requirement that every
“applicable individual . . . ensure that the individual, and any dependent of the individual who is
1
The individual mandate provision included in the amendment to H.R. 3590 was also contained in a separate bill
that originated in and was passed by the House on November 7, 2009. See H.R. 3962, 111th Cong. § 501 (2009);
155 Cong. Rec. H12623–H12968 (daily ed. Nov. 7, 2009).
2
an applicable individual, is covered under minimum essential coverage.” 2 See id. § 1501, 124
Stat. at 244 (codified at 26 U.S.C. § 5000A). This same provision provides that, if any
“applicable individual” fails to meet the requirement of maintaining “minimum essential” health
insurance coverage, that individual is required to pay a “shared responsibility payment” to the
federal government. 3 Essentially, this minimum coverage provision—commonly referred to as
the “individual mandate”—requires every “applicable individual” to maintain “minimum
essential” health insurance coverage, or else make a “shared responsibility payment.” The
individual mandate takes effect on January 1, 2014. See id. (requiring “minimum essential
coverage” for “each month beginning after 2013”).
B. Factual and Procedural Background
The plaintiff in the instant case is an artist who lives in Cedar Rapids, Iowa. See Am.
Compl. ¶ 5, ECF No. 40. He alleges in his Amended Complaint that he “is financially stable, has
an annual income that requires him to file federal tax returns, and could afford health insurance if
he wanted to obtain such coverage.” Id. He claims that “[h]e is able to and does pay for any and
all of his medical expenses out of pocket” and “does not have, need, or want health insurance.” 4
Id. Despite his alleged aversion to purchasing health insurance, however, the plaintiff also
alleges that “[h]e is subject to the [Affordable Care] Act’s provisions requiring either the
purchase of federally prescribed health insurance or the payment of a tax.” Id.
2
The term “applicable individual” is defined as any individual that does not qualify for one of four enumerated
exceptions. See 26 U.S.C. § 5000A(d).
3
The amount of the shared responsibility payment “is calculated as a percentage of household income, subject to a
floor based on a specified dollar amount and a ceiling based on the average annual premium the individual would
have to pay for qualifying health insurance.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012)
(citing 26 U.S.C. § 5000A(c)).
4
The plaintiff is also employed part time as a Public Affairs Specialist for the National Guard, though it is unclear in
which branch of the National Guard the plaintiff serves. See Am. Comp. ¶ 5. As a part of his service in the National
Guard, the plaintiff was temporarily covered by government-provided health insurance while he participated in
National Guard training from October 31, 2012 to February 11, 2013. See Notice Regarding Plaintiff Matt Sissel at
2, ECF No. 42. The plaintiff lost this health insurance coverage, however, when his training ended. See id.
3
The plaintiff alleges that “he must act now to make financial plans to either buy insurance
or make the [shared responsibility] payment.” Id. ¶ 23. Specifically, the plaintiff claims that
“[i]n anticipation of the costs he must incur to satisfy the [Affordable Care] Act’s purchase
requirement, he calculates that he will be unable to afford to continue his professional
education,” and he “has begun selling his artwork, and will continue to do so, rather than devote
his attention full-time to his studies.” Id. ¶ 26. Further, the plaintiff alleges that his “ability to
attend national and international conferences and workshops relevant to his art profession has
been curtailed because he is obliged to reduce expenditures in light of anticipated new health
care costs, imposed by the [Affordable Care] Act.” Id. ¶ 27.
On July 26, 2010, the plaintiff filed his original Complaint in this Court, which alleged
that the Affordable Care Act’s individual mandate provision was unconstitutional “because it
exceeds Congress’s authority under the Commerce Clause.” See Compl. ¶ 1, ECF No. 1. 5 The
defendants moved to dismiss the plaintiff’s Complaint on November 15, 2010. On August 9,
2011, however, the Court stayed proceedings in this case pending the D.C. Circuit’s decision in
Mead v. Holder, No. 11-5047, which was a case challenging the individual mandate on the same
grounds as the plaintiff in the instant case. See Minute Order dated Aug. 9, 2011. The D.C.
Circuit issued its decision in that case on November 8, 2011. See Seven-Sky v. Holder, 661 F.3d
1 (D.C. Cir. 2011).
On November 14, 2011, the Supreme Court granted a writ of certiorari in three other
cases from the Eleventh Circuit that were, like Seven-Sky and the instant case, facial challenges
to the individual mandate. See 132 S. Ct. 603–04 (2011) (mem.). In light of these events, the
parties jointly requested that the Court stay these proceedings further, pending the Supreme
Court’s decision in those three consolidated cases. See Joint Mot. to Stay Proceedings, ECF No.
5
This case was reassigned to the current presiding judge on June 3, 2011.
4
34. The Court granted the parties’ motion on December 1, 2011. See Minute Order dated Dec.
1, 2011. On June 28, 2012, the Supreme Court issued its decision in National Federation of
Independent Business v. Sebelius (“NFIB”), 132 S. Ct. 2566 (2012), the substance of which the
Court will discuss in more detail below.
On September 11, 2012, the plaintiff moved to amend his Complaint “based on the
Supreme Court’s new legal framework for assessing the constitutionality of the purchase
requirement and the payment” required by the individual mandate. See Pl.’s Mot. for Leave to
Amend Compl. at 2, ECF No. 37. In particular, the plaintiff sought to make a “minor
amendment” to his Commerce Clause claim “reflecting the fact that, under the Supreme Court’s
ruling, it is the legal obligation to buy insurance—not the payment—that is unconstitutional.”
See id. at 1. The plaintiff also sought to add a second claim asserting that the Affordable Care
Act’s shared responsibility payment violates the Origination Clause of the Constitution. See id.
The Court granted the plaintiff’s motion to amend on October 11, 2012, and also denied without
prejudice, as moot, the defendants’ previously filed motion to dismiss. See Minute Order dated
Oct. 11, 2012. The defendants then filed a motion to dismiss the plaintiff’s Amended Complaint,
and in connection with that motion the Court granted leave to the Center for Constitutional
Jurisprudence to file an amicus curiae brief in support of the plaintiff’s challenge. See Minute
Order dated Dec. 4, 2012. Currently pending before the Court is the defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint, ECF No. 43, and, for the reasons discussed below, the
Court grants that motion. 6
6
The plaintiff has requested oral argument on the pending motion to dismiss. See Pl.’s Opp’n to Mot. to Dismiss
(“Pl.’s Opp’n”) at 3, ECF No. 45. The Court concludes in its discretion, however, that the issues have been amply
briefed in both motions and that a hearing for oral argument is therefore unnecessary. See LCvR 7(f). As a result,
the plaintiff’s request for oral argument is denied.
5
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough
facts to state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are
more than “‘merely consistent with’ a defendant’s liability.” Id. (quoting Twombly, 550 U.S. at
557). Rather, “the plaintiff [must] plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.; accord Rudder
v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). The Court “must assume all the allegations in
the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all
reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal quotation marks
omitted).
III. DISCUSSION
The Court will begin by discussing the plaintiff’s Commerce Clause challenge before
turning to the plaintiff’s Origination Clause challenge. 7
A. The Plaintiff’s Commerce Clause Challenge Fails.
The merits of the plaintiff’s Commerce Clause challenge have already been decided by
the Supreme Court. In NFIB, a majority of the Supreme Court reached two conclusions
7
At the outset, the Court concludes that the plaintiff has standing to bring this lawsuit, since he alleges that he has
suffered concrete financial injury as a direct result of his efforts to comply with the individual mandate. See, e.g.,
Am. Compl. ¶¶ 26–27. Clearly, invalidation of the individual mandate would remedy these allegedly ongoing
financial injuries, since the plaintiff would no longer be “obliged to reduce expenditures in light of anticipated new
health care costs, imposed by the [Affordable Care] Act.” See id. ¶ 27.
6
regarding the constitutionality of the individual mandate that control the outcome of the instant
case, both of which were announced by the opinion of Chief Justice Roberts. First, the Chief
Justice and four dissenting Justices concluded that the individual mandate “cannot be sustained
under” the Commerce Clause. See NFIB, 132 S. Ct. at 2591; accord id. at 2593 (“[T]he
individual mandate cannot be sustained as a law regulating the substantial effects of the failure to
purchase health insurance . . . . The commerce power thus does not authorize the mandate.”). 8
Second, the Chief Justice held that “[o]ur precedent demonstrates that Congress had the power to
impose the exaction in § 5000A under the taxing power, and that § 5000A need not be read to do
more than impose a tax. That is sufficient to sustain it.” Id. at 2598; accord id. at 2601
(“Section 5000A is . . . constitutional, because it can reasonably be read as a tax.”). Thus, NFIB
compels the conclusion that § 5000A is constitutional, regardless of whether it exceeded
Congress’s power under the Commerce Clause, because it is a constitutional exercise of the
taxing power.
The plaintiff attempts to avoid this conclusion by contending that “the NFIB Court
distinguished between a legal command to act or refrain from acting . . . and a tax on not having
insurance.” See Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”) at 3, ECF No. 45. Insisting that
8
The NFIB decision contained four separate opinions. The opinion of Chief Justice Roberts announced the
judgment of the Court and delivered the opinion of the Court with respect to Parts I (factual and procedural
background), II (Anti-Injunction Act), and III-C (Taxing Clause). Justice Ginsburg, joined by three other Justices,
wrote separately, concurring in part and dissenting in part but concurring in the judgment. Justices Scalia, Kennedy,
Thomas, and Alito wrote a joint dissenting opinion, and Justice Thomas wrote a separate dissent to express his
continuing disagreement with the “substantial effects” test under the Commerce Clause. Part III-A of the Chief
Justice’s opinion, in which he was joined by the four dissenting Justices, concluded that the individual mandate
could not be sustained under the Commerce Clause. See NFIB, 132 S. Ct. at 2585–93. The Chief Justice argued in
Part III-D of his opinion that his conclusion in Part III-A regarding the Commerce Clause was a holding of the case
because “[w]ithout deciding the Commerce Clause question, I would find no basis to adopt . . . a saving construction
[of the individual mandate under the Taxing Clause].” Id. at 2600–01. Justice Ginsburg, joined by three other
Justices, disagreed with Part III-D of the Chief Justice’s opinion, writing that there was “no reason to undertake a
Commerce Clause analysis that is not outcome determinative.” Id. at 2629 (Ginsburg, J., concurring in part and
dissenting, in part). Although the plaintiff urges that “[t]his case is an appropriate vehicle for resolving the
confusion over whether lower courts are bound by Chief Justice Roberts’ statement” regarding the Commerce
Clause, see Pl.’s Opp’n at 7, this Court takes no position on whether Part III-A of the Chief Justice’s opinion was a
holding or mere dictum because deciding that issue is not necessary to rule on the defendants’ motion to dismiss.
7
this “distinction between the purchase requirement and the tax on not having insurance was
critical to the NFIB decision,” the plaintiff frames his first claim as a challenge only to the
“purchase requirement” of the individual mandate, 26 U.S.C. § 5000A(a). See id. at 4–5
(emphasis omitted). In this vein, the plaintiff argues that “[w]hatever else the Supreme Court did
in NFIB . . . it did not hold that the purchase requirement is a constitutional regulation of
interstate commerce or a rule necessary and proper to carrying into effect a regulation of
commerce.” Id. at 4.
The Court first observes the perplexing implications of the plaintiff’s interpretation of the
Supreme Court’s NIFB decision. On the one hand, the plaintiff insists that the
unconstitutionality of the “purchase requirement” was “endorsed by four other Justices and
therefore is a holding of the Court.” See id. at 4 (citation omitted). In fact, the plaintiff goes out
of his way to contend that “[w]hile the Court did refer throughout the opinion to ‘section
5000A,’ it is evident from the context that the mandatory aspect of that section—which
purported ‘to compel individuals not engaged in commerce to purchase an unwanted product’—
was ruled unconstitutional.” Id. at 5 (citation omitted) (quoting NFIB, 132 S. Ct. at 2586(opinion of Roberts, C.J.)). Yet, on the other hand, the plaintiff prays this Court to declare the
“purchase requirement” unconstitutional and immediately enjoin its enforcement because he “is
currently injured by the purchase requirement.” See Am. Compl. ¶ 23; id. at 12–13. This begs
the question: How can the plaintiff be injured by a law that the Supreme Court has (supposedly)
already declared to be unconstitutional? Indeed, if the Supreme Court did what the plaintiff
claims, there would appear to be no case or controversy for this Court to resolve.
The simple and unavoidable answer to this quandary is that the Supreme Court did not do
what the plaintiff claims. The Supreme Court did not, as the defendants put it, “subdivide
8
[§ 5000A] into a requirement to purchase insurance and a penalty on those who fail to do so.”
See Defs.’ Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Mem.”) at 1, ECF No. 43. Rather, from
the very beginning of his controlling opinion in NFIB, the Chief Justice referred to “the
individual mandate” as a single provision of the Affordable Care Act, which he described as a
provision that “requires individuals to purchase a health insurance policy providing a minimum
level of coverage.” See NFIB, 132 S. Ct. at 2577. Indeed, the Chief Justice consistently referred
to “the individual mandate” at nearly every stage of his analysis. See, e.g., id. at 2580 (“The
individual mandate requires most Americans to maintain ‘minimum essential’ health insurance
coverage.” (citing 26 U.S.C. § 5000A)); id. at 2591 (“The individual mandate . . . . cannot be
sustained under a clause authorizing Congress to ‘regulate Commerce.’”); id. at 2592 (“The
individual mandate cannot be sustained under the Necessary and Proper Clause.”); id. at 2599
(“Upholding the individual mandate under the Taxing Clause . . . does not recognize any new
federal power.”).
What is more, the Chief Justice could not have been clearer in Part III-B of his opinion
that the individual mandate was susceptible to “more than one possible meaning” and that “it is
therefore necessary to ask whether the Government’s alternative reading of the statute—that it
only imposes a tax on those without insurance—is a reasonable one.” See id. at 2593 (emphasis
added); see also id. at 2594 (“The Government asks us to interpret the mandate as imposing a
tax, if it would otherwise violate the Constitution. Granting the [Affordable Care] Act the full
measure of deference owed to federal statutes, it can be so read . . . .”). Hence, in NFIB, the
Supreme Court did not subdivide the minimum coverage provision into a “purchase
requirement” and a “tax on not having insurance” as the plaintiff contends. See Pl.’s Opp’n at 5
(emphasis omitted). Rather, in NFIB, the Supreme Court considered two alternative readings of
9
a single provision—26 U.S.C. § 5000A—and concluded that one reading violated the Commerce
Clause, while the alternative reading passed muster under the Taxing Clause. See, e.g., NFIB,
132 S. Ct. at 2600–01 (opinion of Roberts, C.J.) (“It is only because the Commerce Clause does
not authorize [a command to buy insurance] that it is necessary to reach the taxing power
question. And it is only because we have a duty to construe a statute to save it, if fairly possible,
that § 5000A can be interpreted as a tax.”). In fact, the Chief Justice specifically foreclosed the
plaintiff’s reading of his opinion by writing in no uncertain terms that “§ 5000A need not be read
to do more than impose a tax . . . to sustain it.” Id. at 2598. The plaintiff’s insistence on reading
§ 5000A to “do more than impose a tax” is therefore a non-starter. 9
The plaintiff’s Commerce Clause claim is thus premised on a misreading of the Supreme
Court’s opinion in NFIB. The individual mandate, § 5000A, as interpreted by the Supreme
Court—whose interpretation of federal statutes binds this Court—does not consist of a “purchase
requirement” and a separate “tax on not having insurance,” but rather is to be read as a single
provision for purposes of constitutional analysis under either the Commerce Clause or the
Taxing Clause. Since the plaintiff’s reading of the statute was rejected by the Supreme Court in
NFIB, the plaintiff’s Commerce Clause claim, which relies on such a reading, must fail.
B. The Plaintiff Fails to State a Claim Under the Origination Clause.
The first clause of Article I, section 7 of the Constitution 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.” U.S. CONST. art. I, § 7, cl. 1. This clause is commonly
known as the “Origination Clause.” See, e.g., United States v. Munoz-Flores, 495 U.S. 385, 387
9
Further evidencing the fact that the Supreme Court rejected any subdivision of the individual mandate in its
opinion, the Chief Justice never applied a severability analysis to § 5000A to determine whether the purportedly
unconstitutional “purchase requirement” could be severed from the rest of the statute. See, e.g., NFIB, 132 S. Ct. at2607–08 (opinion of Roberts, C.J.) (performing severability analysis after finding Medicaid expansion provision
unconstitutional).
10
(1990). The plaintiff in this action claims that the individual mandate provision of the
Affordable Care Act violates the Origination Clause because it is a “Bill[] for raising Revenue”
that did not “originate in the House of Representatives.” See Am. Compl. ¶¶ 36–41. To state a
claim under the Origination Clause, the plaintiff must at least satisfy both elements of the
constitutional text. In other words, the statute in question must (1) be a “Bill[] for raising
Revenue” that (2) did not “originate in the House of Representatives.” The plaintiff’s
allegations, however, do not satisfy either requirement.
1. The Individual Mandate Is Not a “Bill for raising Revenue.”
First, to be subject to the Origination Clause, a statute must be a “Bill[] for raising
Revenue.” See U.S. CONST. art. I, § 7, cl. 1. The plaintiff contends that the Origination Clause
separates bills into two categories: (1) “those that raise revenue and are subject to the Origination
Clause,” and (2) “those that are ‘bills for other purposes which may incidentally create
revenue.’” Pl.’s Opp’n at 14 (quoting Twin City Nat’l Bank of New Brighton v. Nebecker, 167
U.S. 196, 202 (1897)). From this premise, the plaintiff argues categorically that “where a tax is
imposed only as an exercise of the tax clause, and not as an adjunct to a regulation of commerce,
or the exercise of some other enumerated power, then it is a tax for raising revenue subject to the
Origination Clause.” Id. at 15. To support this broad contention, the plaintiff cites six cases, five
of which held that the statutes under review were not subject to the Origination Clause because
they were not “Bills for raising Revenue.” See id. (citing South Carolina ex rel. Tindal v. Block,
717 F.2d 874, 887 (4th Cir. 1983), Mulroy v. Block, 569 F. Supp. 2d 256, 262 (N.D.N.Y. 1983),
Nebecker, 167 U.S. at 202, United States v. Norton, 91 U.S. 566 (1875), Millard v. Roberts, 202
11
U.S. 429 (1906), and Munoz-Flores, 495 U.S. at 398). 10 The plaintiff also quotes extensively
from a seventy-year-old decision from the Sixth Circuit, which stated in pertinent part that
“[t]axation is a congressional power specifically mentioned and described in the Constitution,
but always in connection with the subject of the revenue for the support of the government
generally.” See Rodgers v. United States, 138 F.2d 992, 995 (6th Cir. 1943).
Although the plaintiff’s argument may be superficially appealing, it cannot withstand
even a cursory review of previous interpretations of the Origination Clause. The Supreme Court
has long held that “the practical construction of the constitution and the history of the origin of
the [Origination Clause] prove that revenue bills are those that levy taxes, in the strict sense of
the word, and are not bills for other purposes which may incidentally create revenue.” Nebecker,
167 U.S. at 202 (emphasis added) (citing 1 Joseph Story, Commentaries on the Constitution of
the United States § 880 (1833)). Hence, when any revenues raised by a bill are “‘incidental’ to
that provision’s primary purpose,” the bill is not one “for raising Revenue” within the meaning
of the Origination Clause. See Munoz-Flores, 495 U.S. at 399; accord Nebecker, 167 U.S. at
203 (concluding that provision under review was not revenue-raising where its “main purpose”
was “to provide a national currency”); see also United States v. King, 891 F.2d 780, 781 (10th
Cir. 1989) (“Where the main purpose of the act is other than raising revenue, it is not subject to
challenge under the origination clause.”); United States v. Herrada, 887 F.2d 524, 528 (5th Cir.
1989) (holding that Supreme Court precedents “instruct us to consider the overarching purpose
of an Act when one of its provisions is subject to an Origination Clause challenge”). The text of
the Clause itself confirms this purposive approach. See U.S. CONST. art. I, § 7, cl. 1 (applying
10
South Carolina ex rel. Tindal v. Block did not reach the Origination Clause question, holding instead that the
exaction under review was “a fee rather than a tax,” and therefore “not an unconstitutional exercise of the taxing
power.” See 717 F.2d at 887.
12
only to “Bills for raising Revenue.”(emphasis added)). A purposive analysis is therefore
necessary to discern whether a provision is “for raising Revenue.”
Following this purposive approach, the Supreme Court has held that “a statute that
creates a particular governmental program and that raises revenue to support that program, as
opposed to a statute that raises revenue to support Government generally, is not a ‘Bill for raising
Revenue’ within the meaning of the Origination Clause.” Munoz-Flores, 495 U.S. at 398.
Hence, when revenues raised by a provision support a “particular governmental program,” id., it
is clear that the primary purpose of that provision is not “to raise revenue to be applied in
meeting the expenses or obligations of the government,” see Nebecker, 167 U.S. at 203. The
earmarking of revenues for a particular government program, however, is but one way for a court
to discern that the revenues raised by a provision are merely “‘incidental’ to that provision’s
primary purpose.” See Munoz-Flores, 495 U.S. at 399. The court may also analyze more
generally whether the provision in question “was a means for effectually accomplishing” an end
other than “meeting the expenses or obligations of the government.” See Nebecker, 167 U.S. at
203. Under the Supreme Court’s precedents—sparse as they may be on this subject 11—so long
as the primary purpose of the provision is something other than raising revenue, the provision is
not subject to the Origination Clause.
There is no dispute that the individual mandate will raises revenues through the “shared
responsibility payments” required under § 5000A. There is also no dispute that those revenues
are “paid into the Treasury by taxpayers when they file their tax returns.” See NFIB, 132 S. Ct.
at 2594 (internal quotation marks omitted) (citing 26 U.S.C. § 5000A(b)). Just because the
11
The Court has only located six reported decisions of the Supreme Court that reached the merits of an Origination
Clause challenge. See Munoz-Flores, 495 U.S. 385; Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone
Tracy Co., 220 U.S. 107 (1911); Millard, 202 U.S. 429; Nebecker, 167 U.S. 196; Norton, 91 U.S. 566. The
Supreme Court has never invalidated an act of Congress under the Origination Clause.
13
revenues collected from the individual mandate do not support a “particular governmental
program,” however, does not mean that those revenues are raised for the purpose of
“support[ing] Government generally.” See Munoz-Flores, 495 U.S. at 398. Both the Supreme
Court and the D.C. Circuit have concluded that the individual mandate (and its associated shared
responsibility payment) are “plainly designed to expand health insurance coverage” even though
they “will raise considerable revenue.” See NFIB, 132 S. Ct. at 2596; accord Seven-Sky, 661
F.3d at 6 (observing that “congressional findings never suggested that Congress’s purpose was to
raise revenue,” but rather “congressional findings emphasize that the aim of the shared
responsibility payment is to encourage everyone to purchase insurance; the goal is universal
coverage, not revenues from penalties”). 12 It is unavoidable, in light of this clear congressional
purpose, that any revenue created by the individual mandate is merely incidental. Every shared
responsibility payment, though it may grow the government coffers, symbolizes the
government’s failure to attain its stated “goal [of] universal coverage.” See Seven-Sky, 661 F.3d
at 6. In other words, Congress’s preference would be for the individual mandate to raise zero
revenues, and thus the provision cannot fairly be characterized as a “Bill[] for raising Revenue.”
12
Although the Supreme Court has cautioned that “[i]nquiry into the hidden motives which may move Congress to
exercise a power constitutionally conferred upon it is beyond the competency of courts,” see Sonzinsky v. United
States, 300 U.S. 506, 513–14 (1937), that admonition was applied when examining whether a particular exaction
was passed pursuant to Congress’s taxing power, not when determining whether the exaction is subject to the
Origination Clause. The Origination Clause, unlike the Taxing Clause, contains a clear textual cue that the Framers
intended the purpose of the legislation in question, rather than only its effects, to be considered in determining
whether the Clause is applicable. Compare U.S. CONST. art. I, § 7, cl. 1 (applying only to “Bills for raising
Revenue.”(emphasis added)), with U.S. CONST. art. I, § 8, cl. 1 (granting Congress the “Power To lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of
the United States”). Thus, although the Supreme Court has suggested that it has “abandoned” any “distinctions
between regulatory and revenue-raising taxes” when analyzing Congress’s taxing power or the applicability of the
Anti-Injunction Act, see Bob Jones Univ. v. Simon, 416 U.S. 725, 741 n.12 (1974), that distinction still retains force
with respect to the Origination Clause. Indeed, Chief Justice Roberts can be read to have revived this distinction to
some degree in NFIB by citing with approval a line of cases that distinguished between taxes and “punitive
exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority.” See
NFIB, 132 S. Ct. at 2599 (citing United States v. Butler, 297 U.S. 1 (1936) and Bailey v. Drexel Furniture Co., 259
U.S. 20 (1922)).
14
See Def.’s Mem. at 10 (“[B]y encouraging the purchase of health insurance, the provision will
operate most successfully by generating even less revenue.”).
From the perspective of the Origination Clause, the instant case is analogous to the
Supreme Court’s decision in Nebecker. There, like here, “[t]he tax [was] a means for effectually
accomplishing [a] great object” of government. See Nebecker, 167 U.S. at 203. In Nebecker,
that “great object” was “to provide a national currency,” id., while in the instant case that object
is “to expand health insurance coverage,” NFIB, 132 S. Ct. at 2596. Here, as in Nebecker, any
revenue raised by the tax will be merely “‘incidental’ to that provision’s primary purpose.” See
Munoz-Flores, 495 U.S. at 399. Hence, under the Supreme Court’s precedents, the individual
mandate challenged in this case is not a “Bill[] for raising Revenue” within the meaning of the
Origination Clause and therefore it need not have “originate[d] in the House of Representatives.”
2. The Individual Mandate Was an Amendment to a Bill That Originated
in the House of Representatives.
Even if the individual mandate could arguably be interpreted as a “Bill[] for raising
Revenue,” the plaintiff’s Origination Clause would still fail as a matter of law because the bill
that later became the Affordable Care Act originated in the House of Representatives. The
plaintiff alleges that the Affordable Care Act “originated in the Senate, not the House.” Am.
Compl. ¶ 40. Although the plaintiff appears to concede that H.R. 3590—the bill that was later
enacted as the Affordable Care Act—was first passed by the House in September 2009, see id.,the plaintiff nevertheless contends that the particular provision at issue, § 5000A “originated in
the Senate when the Senate struck the entire text of H.R. 3590, a House-passed bill that was not
for raising revenue, and replaced it entirely with the text that ultimately became the PPACA,”
Pl.’s Opp’n at 9 (emphasis omitted). The plaintiff argues that this so-called “gut-and-amend”
procedure “is not ‘origination’ as the Origination Clause contemplates.” Id. According to the
15
plaintiff, “[a] bill originates in the House when it is initiated there—i.e., when its substance is
submitted for deliberation and enactment in the House in the first instance.” Id. (emphasis in
original) (citing Hubbard v. Lowe, 226 F. 135, 137–38 (S.D.N.Y. 1915)). 13
The defendants contend that the plaintiff “misunderstands the requirements of the
Origination Clause” because that Clause “does not require that each individual provision of a
‘Bill for raising Revenue’ originate in the House, but rather that the ‘Bill’ originate in the
House.” Defs.’ Reply Mem. in Supp. Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Reply”) at 7–8
ECF No. 49. Contrary to the plaintiff’s view, the defendants argue, “[t]he Clause does not
preclude the Senate from inserting new provisions, or even from substituting out the entire text
of the House bill.” Id. at 8. The defendants characterize “gut-and-amend” as a “commonplace
procedure,” and thus the defendants warn that the plaintiff’s “test for compliance [with the
Origination Clause] would lead courts to set aside Congressional enactments as a matter of
routine.” Id. at 7–8. The defendants further contend that “the Court’s role here is limited to
ensuring that the bill originated in the House . . . and does not entail a comparison of the subject
matter of the two bills.” Id. at 11. Finally, the defendants emphasize that, even assuming that
(1) the Affordable Care Act were considered a “Bill[] for raising Revenue,” and (2) comparison
of the subject-matters of the two versions of the bill were warranted, the statute still passes
muster under the Origination Clause because H.R. 3590’s original text “concerned the
13
The plaintiff’s reliance on Hubbard on the origination question is puzzling. In that case, the court acknowledged
that a “bill” is “a draft of a proposed statute submitted to the Legislature for enactment,” and thus “what the
Constitution requires to originate in the House of Representatives is not the final product of the legislative will, not
the statute, but a project for a statute, which may b[y] amendment take a very different shape by the time it is ready
for promulgation as a law.” Hubbard, 226 F. at 138 (emphasis added). Indeed, Hubbard involved the converse of
the situation presented in this case: the Senate had proposed a bill, “but the House struck out everything after the
enacting clause and substituted the act as subsequently concurred in by the Senate.” Id. The court not only held that
the bill had originated in the Senate, but it specifically upheld this gut-and-amend practice, commenting (nearly 100
years ago) that “[a]mendments by substitution are a well known method of expediting legislation,” and even
complete substitution of the text of a bill “was legitimate amendment” because “though an amendment may be the
most important part of an act, it remains formally only an addition or subtraction; it has no independent
parliamentary vitality.” Id. at 139–40. Thus, for the plaintiff to cite Hubbard for the notion that “gut and amend” is
not true “origination” is completely at odds with that case’s substance.
16
Government’s collection of revenue,” and thus the amendments to H.R. 3590 in the Senate were
“germane” to the subject-matter of the House bill. Id. at 9–11.
At the outset, the Court observes that the defendants are correct that the text of the
Origination Clause clearly only requires a “Bill[] for raising Revenue” to originate in the House,
rather than requiring that particular provisions originate there. Holding otherwise would
substantially limit the Senate’s explicit power to “propose or concur with Amendments” to
revenue bills. See U.S. CONST. art. I, § 7, cl. 1; see also Rebecca M. Kysar, The ‘Shell Bill’
Game: Avoidance and the Origination Clause, 91 WASH. U. L. REV. (forthcoming 2014) (citing
historical argument that a germaneness requirement “would deny to the Senate the power to
make anything more than mere formal amendments” (internal quotation marks omitted)).
Indeed, by focusing on the first half of the Origination Clause, the plaintiff misses the question at
the heart of the origination question in this case, which is whether, under the second half of the
Origination Clause, the Senate exceeded its power to “propose or concur with Amendments as
on other Bills” when it struck out the entire text of the House-passed H.R. 3590 and replaced it
with the Affordable Care Act.
The Supreme Court has only addressed the origination question—i.e., whether a bill
“originated in the House of Representatives”—in two published decisions. First, in Flint v.
Stone Tracy Co., the Court addressed an Origination Clause challenge to a law that began in the
House with an inheritance tax, but was later amended in the Senate by striking the inheritance
tax and substituting a corporation tax. See 220 U.S. 107, 143 (1911), abrogated on other
grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). In that case, the
Court did not discuss the origination question at length, simply concluding that the Court
“perceive[d] no reason in the [Origination Clause] why [the statute] may not be amended in the
17
Senate in the manner which it was in this case” because “[t]he amendment was germane to the
subject-matter of the bill, and not beyond the power of the Senate to propose.” Id. 14 Only three
years after Flint, the Court again addressed an Origination Clause challenge and discussed the
origination question. See Rainey v. United States, 232 U.S. 310 (1914). There, the Court refused
to “intimat[e]” that courts had the power “after an act of Congress has been duly promulgated, to
inquire in which House it originated, for the purpose of determining its validity.” Id. at 317. The
Court proceeded to “adopt and approve” the reasoning of the lower court, which was that a bill
sufficiently complies with the Origination Clause if the law in question “was proposed by the
Senate as an amendment to a bill for raising revenue which originated in the House.” Id.Notably, the Court also stated that “it is not for this court to determine whether the amendment
was or was not outside the purposes of the original bill.” Id.The Court recounts at the outset that it has already decided that the Affordable Care Act
was not a “Bill[] for raising Revenue” that needed to originate in the House of Representatives.
See supra Part III.B.1. Thus, in addressing the origination question, the Court assumes, for the
purpose of argument only, that the Affordable Care Act was a “Bill[] for raising Revenue.” With
the analysis thus framed, the Court begins by considering whether the Supreme Court’s
precedents impose a “germaneness” requirement on the Senate’s Origination Clause amendment
power. Certainly, in Flint, the Court made clear that if a Senate amendment is “germane to the
subject-matter of the bill, and not beyond the power of the Senate to propose,” the resulting piece
of legislation comports with the Origination Clause. See Flint, 220 U.S. at 143. The plaintiff
reads this as a requirement under the Origination Clause that “Senate amendments . . . be
14
The Court was also careful to point out that it did “not wish to be regarded as holding that journals of the House
and Senate may be examined to invalidate an act which has been passed and signed by the presiding officers of the
House and Senate, and approved by the President, and duly deposited with the State Department.” Flint, 220 U.S. at143 (citing Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)).
18
‘germane’ to the subject of the original House bill.” Pl.’s Opp’n at 11. The Supreme Court did
not couch this as a requirement in Flint, however. Rather, the Supreme Court concluded that it is
sufficient to comport with the Origination Clause when a Senate amendment to a House revenue
bill is “germane to the subject-matter of the bill” and is not otherwise “beyond the power of the
Senate to propose.” See Flint, 220 U.S. at 143.
Even if germaneness were a limit on the Senate’s Origination Clause amendment power,
the Supreme Court’s statement that “it is not for this court to determine whether the amendment
was or was not outside the purposes of the original bill,” Rainey, 232 U.S. at 317, strongly
suggests that it is for Congress, not the courts, to decide whether an amendment is properly
germane in any given case. 15 It is true that the Supreme Court has held that Origination Clause
claims are not categorically beyond the jurisdiction of Article III courts. See Munoz-Flores, 495
U.S. at 396; accord id. at 397 (“A law passed in violation of the Origination Clause would . . . be
no more immune from judicial scrutiny because it was passed by both Houses and signed by the
President than would be a law passed in violation of the First Amendment.”). Notably, however,
in Munoz-Flores the Supreme Court had no occasion to adjudicate the origination question
because the Court had already held that the law in question was not a revenue-raising bill. See
id. at 401. Thus, Munoz-Flores did not hold that questions about the germaneness of Senate
amendments to revenue bills are justiciable.
This conclusion is supported further by the Supreme Court’s discussion in Munoz-Flores
that distinguished the Supreme Court’s much earlier decision in Marshall Field. That brief
discussion was laid out in what the D.C. Circuit has called “an oblique footnote.” See Pub.
15
Indeed, the House of Representatives has a longstanding procedure for enforcing the Origination Clause,
commonly referred to as “blue-slipping.” See, e.g., Rebecca M. Kysar, On the Constitutionality of Tax Treaties, 38
Yale J. Int’l L. 1, 12 (2013). By that process, the House passes a resolution which returns to the Senate any bill that
the House considers to be revenue-raising. See id.; see also Rules of the House of Representatives, 113th Cong.,
Rule XVIII, cl. 3 (2013).
19
Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1352 (D.C. Cir. 2007). That footnote, whose
final two sentences “defy easy comprehension,” id. at 1354, appeared to say that the Origination
Clause, unlike the Journal Clause addressed in Marshall Field, contained a “constitutional
requirement binding Congress.” See Munoz-Flores, 495 U.S. at 391 n.4. 16 Whatever this
footnote means, the Supreme Court in Munoz-Flores did not purport to address the justiciability
of inquiring into the “germaneness” of a Senate amendment to a House revenue bill, and there is
certainly no textual “constitutional requirement binding Congress” to make only germane
amendments to revenue bills. See id. Thus, the line drawn in Munoz-Flores between justiciable
and non-justiciable inquiries under the Origination Clause clearly allows review of whether a
provision is a “Bill[] for raising Revenue,” but likely stops short of permitting scrutiny of
whether a Senate amendment to a revenue bill is germane.
The fact that the Senate’s power to amend revenue bills is not cabined by a justiciable
germaneness requirement is further confirmed by the text of the Origination Clause itself. The
second half of the Origination Clause makes clear that the Senate’s power to amend revenue bills
is “as on other Bills.” See U.S. CONST. art. I, § 7, cl. 1. This language indicates that the Senate’s
power to amend revenue bills is no different than its ability to amend non-revenue bills. That
more general power to amend legislation, however, likely falls within Congress’s exclusive
power to “determine the Rules of its Proceedings,” U.S. CONST. art. I, § 5, cl. 2, and thus
compliance with the more general amendment power is arguably a non-justiciable political
16
The Court in Munoz-Flores also stated in a separate footnote that the Supreme Court had “reserved the question
whether ‘there is judicial power after an act of Congress has been duly promulgated to inquire in which House it
originated.” See Munoz-Flores, 495 U.S. at 389 n.2 (quoting Rainey, 232 U.S. at 310). The Munoz-Flores Court,
however, did not mention the portion of Rainey which stated that “it is not for this court to determine whether the
amendment was or was not outside the purposes of the original bill.” See Rainey, 232 U.S. at 317.
20
question. See Baker v. Carr, 369 U.S. 186, 217 (1962). 17 Indeed, the second clause of Article I,
section 5 is a “textually demonstrable constitutional commitment of [an] issue to a coordinate
political department” if ever there was one, and having courts scrutinize parliamentary procedure
relating to the required relevance of a legislative amendment would “express[] lack of the respect
due coordinate branches of government.” See id.Even assuming that the Origination Clause contains a germaneness requirement, and
assuming that the question of compliance with such a requirement is justiciable, Flint established
a very loose conception of germaneness in any event. As discussed above, the bill reviewed in
Flint originally included an inheritance tax, and it was later amended to remove the inheritance
tax and to insert in its place a corporate income tax. See Flint, 220 U.S. at 143–44. Although a
corporate income tax is germane to an inheritance tax insofar as they are both taxes, the
similarities end there. Hence, if the Supreme Court imposed a germaneness requirement in Flint,
the most that it would require would be that both the original House bill and the Senate
amendment be revenue-raising in nature. 18 The same requirement was applied in Rainey, where
the Supreme Court found it sufficient that the provision in question “was proposed by the Senate
as an amendment to a bill for raising revenue which originated in the House.” See Rainey, 232
U.S. at 317. 19 That requirement is met here. As the defendants point out (and the plaintiff
17
Both Houses of Congress have promulgated rules governing the germaneness of amendments. See Rules of the
House of Representatives, 113th Cong., Rule XVI, cl. 7 (2013); Standing Rules of the Senate, 112th Cong., 1st
Sess., Rule XVI, ¶ 4 (2008) (germaneness requirement for amendments to appropriations bills); see also id. Rule
XXII, ¶ 2 (germaneness requirement when Senate operating under cloture).
18
The word “germane” is usually defined as “[r]elevant” or “pertinent.” See BLACK’S LAW DICTIONARY 756 (9th
ed. 2009); 6 OXFORD ENGLISH DICTIONARY 468 (2d ed. 1989).
19
This broad conception of a germaneness requirement is also in keeping with current congressional practice with
respect to revenue bills. See Kysar, On the Constitutionality of Tax Treaties, 38 Yale J. Int’l L. at 13 (“Current
precedent . . . recognizes that the Senate generally has the power to amend a House-originated revenue bill without
regard to germaneness, but that it may not propose a revenue-related amendment to a non-revenue bill.”).
21
chooses not to discuss), “every provision of H.R. 3590 [as it originated in the House] concerned
the Government’s collection of revenue.” Defs.’ Reply at 9.
On this point, the plaintiff asserts, without citation, that “it is undisputed that H.R. 3590
was not originally a bill for raising revenue,” see Pl.’s Opp’n at 10 (emphasis omitted), but this
statement is both incorrect and self-defeating. It is incorrect because the defendants do contend
that “if the ACA is a ‘Bill for Raising Revenue,’ then so is the House [version of H.R. 3590].”
Defs.’ Reply at 9. The plaintiff’s statement is also self-defeating because it entirely undercuts
the plaintiff’s position that the individual mandate is a “Bill[] for raising Revenue.” How can it
be that a law which, inter alia, collects a tax on failing to buy health insurance is a “Bill[] for
raising Revenue,” but a law which, inter alia, raises income taxes on large corporations, as the
original House version of H.R. 3590 proposed, is not? Although the plaintiff’s position cries out
for resolution of this tension, the plaintiff provides none. Indeed, the plaintiff repeatedly asserts,
without explanation, that the House version of H.R. 3590 was “not for raising revenue,” see, e.g.,
Pl.’s Opp’n at 9, 20 but such a conclusory assertion does not advance the plaintiff’s argument,
particularly when it is in such palpable tension with one of his other primary contentions.
The Court concludes for the foregoing reasons that, even assuming the individual
mandate was a “Bill[] for raising Revenue,” that bill “originate[d] in the House of
Representatives” as H.R. 3590 and was later duly amended by the Senate in a manner consistent
with the Origination Clause.
IV. CONCLUSION
In sum, the Court first holds that the plaintiff’s Commerce Clause challenge to the
Affordable Care Act’s individual mandate is foreclosed as a matter of law by the Supreme
20
See also Pl.’s Opp’n at 10 (asserting House bill “was not a bill for raising revenue”); id. (“H.R. 3590 was not
originally a bill for raising revenue.”); id. at 12 (asserting that “H.R. 3590 was not a bill for raising revenue when it
originated in the House”); id. at 14 (contending that H.R. 3590 was “a House-passed bill that did not raise revenue”).
22
Court’s decision in NFIB, and thus the plaintiff fails to state a claim under the Commerce Clause.
The Court further holds that the individual mandate was not a “Bill[] for raising Revenue,” and
thus the plaintiff’s Origination Clause challenge likewise fails to state a claim upon which relief
may be granted. In any event, even if the individual mandate were a “Bill[] for raising
Revenue,” the Court holds that it was nevertheless an amendment to a bill that “originated in the
House of Representatives” and thus was enacted in compliance with the Origination Clause.
An appropriate Order accompanies this Memorandum Opinion.
Date: June 28, 2013
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
23