Since Friday I gave a talk at Hillsdale on Halbig, and Monday I give a talk at Notre Dame about Hobby Lobby, I wondered if I had anything to say on Sissel v. HHS (DC Circuit,   No.13-5202) and  Hotze v. Sebelius, (5th circuit pending, No. 14-20039).   The issue is whether the ACA, the Obamacare bill,  is a revenue bill and, if so, whether it originated in the House as revenue bills must according to the U.S. Constitution. 

   I think the revenue bill part can be severed— the medical devices tax and the 40% surcharge on high-quality health insurance. What's interesting to me, though, is the Origination Clause. What does it mean? 

    First, we need some history.  Obamacare originated as several bills– at least two versions in the Senate and one in the House. Then, the Democrats unexpectedly lost one seat when Senator Kennedy died and was replaced by a Republican. Now, they had to fear a filibuster from the 41 Republicans.  The District Court Hotze opinion gives a good description of what happened. I've removed some cites and reformatted:

 

On October 8, 2009, the House of Representatives (the “House”) passed H.R. 3590, otherwise titled at the time the “Service Members Home Ownership Tax Act of 2009.” H.R. 3590, 111th Cong., § 1 (Oct. 8, 2009). H.R. 3590 was a bill to make certain changes to the Internal Revenue Code. Specifically, the bill extended or waived the recapture of a first-time homebuyer credit for certain members of the armed forces.  The bill also expanded exclusions from gross income of certain military-related fringe benefits.   Finally, the bill increased the penalty for failure to file a partnership or “S corporation” tax return from $89 to $110, and    increased certain estimated corporate taxes by 0.5%.

 Upon receipt, the Senate struck out the entirety of H.R. 3590 aside from its enacting clause. In its place the Senate inserted new text under the title “Patient 2 Protection and Affordable Care Act.” H.R. 3590, 111th Cong., § 1(a) (Dec. 24, 2009).

The bill passed the Senate on December 24, 2009.

The amended H.R. 3590 was then sent back to the House. On March 21, 2010, the House passed H.R. 3590 as amended.

     Hotze doesn't say, but here are some other things I think are true (I might be wrong) that are relevant. First, the House had its own health care bill, which it let die. The Senate had its own  health care bill, which is the "new text" that it inserted as an amendment. Since the amended HR 3590 was almost identical to the previously passed Senate health care bill (or maybe because it was sent to the Senate as a budget bill not subject to filibustering, I forget which was the reason), Republican senators weren't allowed to filibuster it. It went straight back to the House and passed by a full House vote without going through any committees and without any opportunity to offer amendments.  For some more detail, though  not enough to satisfy me I've got it right, see John Cannan, A Legislative History of the Affordable Care Act:  How Legislative Procedure Shapes Legislative History*LAW LIBRARY JOURNAL Vol. 105:2 [2013-7] . 

   As far as labelling goes, this bill originated in the House.  The  ultimate law, though, had almost no words from the House version and was about a different subject entirely. On the other hand, the House didn't object to this.  So did the bill originate in the House?

  I'll post this now, and add my analysis later.