Attorney General John Suthers joined an amicus brief filed last week by Texas Attorney General Greg Abbott in support of a lawsuit brought by Dr. Steven Hotze of Houston. Eighteen other attorneys general have also signed onto the brief, which is now before the Fifth Circuit Court of Appeals.
“If the Origination Clause means anything, it must mean that the ACA is unconstitutional,” says the brief.
The Origination Clause argument has been embraced by Republicans but largely dismissed by many Democrats as an excuse to torpedo Obamacare, which makes Colorado’s decision to sign on to the legal challenge something of a surprise.
Colorado is one of only three states with a Democratic governor to join the lawsuit, the others being Montana and West Virginia. Colorado is also the only state participating in the lawsuit with its own state-run Obamacare health-care exchange.
At the same time, Colorado does have a history of taking on Obamacare in court: Colorado was one of 25 states to oppose Obamacare in the landmark case National Federation of Independent Business v. Sebelius, in which the ACA was upheld in June 2012 by the Supreme Court.
Suthers spokeswoman Carolyn Tyler said the Republican attorney general was unavailable Tuesday for comment, adding, “We will have to let the brief speak for itself today.”
The brief argues that the Affordable Care Act violates the constitutional requirement that “bills for raising revenue” originate in the House. In its decision upholding Obamacare, the Supreme Court defined the health-care program’s penalty for non-compliance as a tax.
The Justice Department has argued that the ACA began in the House, but the lawsuit points out that the House bill that became Obamacare originally dealt with housing tax credits for veterans. Senate Majority Leader Harry Reid removed the bill’s language and replaced it with the ACA language in a process known as “gut and amend.”
“By a voice vote of 416-0, the House passed the bill on October 8, 2009, and the enrolled version was eight pages long,” says the brief. “About one month later, on November 19, 2009, the Senate struck every single word of H.R. 3590, deleted any reference to members of the military or home-ownership tax breaks, and substituted a 2,074-page ‘amendment’ that we now know as the ACA.”
The District Court ruled in January against the Origination Clause argument, holding that Obamacare’s primary purpose was not to levy taxes but to provide health insurance. At the same time, the court agreed that Hotze had standing to file the lawsuit and that the issue was “ripe for consideration.”
The brief argues that if allowed to stand, Obamacare would effectively render meaningless the Origination Clause, which is intended to keep the taxation power closest to the people.
House members are elected every two years, while Senate members were originally appointed by state officials and are now elected every six years.
“In contravention of the Framers’ plan, public scrutiny and blame for that $1 trillion tax bill fell on the Senate instead of the more politically accountable House,” says the brief.
In addition to Colorado and Texas, the states backing the lawsuit are Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and West Virginia.
A second Origination Clause lawsuit is pending before the D.C. Circuit Court of Appeals. That challenge, filed by the Pacific Legal Foundation on behalf of Iowa artist Matthew Sissel, has been endorsed by 40 Republican members of Congress.