Randy Barnett On ObamaCare Originating In The Senate

ObamaCare is a revenue raising tax law, which under the Constitution MUST originate in the House of Representatives.

Barnett argues that it clearly did not, thus:

a court must address whether the mere preservation of a House bill number suffices to make the Senate bill an “amendment” to a House bill. Note well: if the use of “shell bills” are held to be sufficient to satisfy Art. I, sec 7, then the Origination Clause ceases entirely to operate and becomes part of what I call the “lost Constitution.” No way did the Patient Protection and Affordable Care Act originate in the House before it was amended in the Senate. If judges cannot make this assessment, then they might as well hang up their robes.

There is no need in this case to decide how much of a House bill must be retained before we don’t consider what the Senate did to have been an “amendment.” At least some is a good enough answer for now. Nor does the fact that the House failed to defend their prerogatives change the analysis. As courts have long held, the power-limiting requirements of the Constitution are there to protect the People, not members of Congress. Some partisan faction putting a legislative victory over the requirements of the Constitution is what the Constitution is there to stop, and why we pay money for an independent judiciary to enforce it.

Judges too are the agents of the sovereign People; and the sovereign People are not the same as a majority of the 535 persons who comprise Congress. On this question, the courts should not defer to Congress, and neither should law professors defer to the courts. Revenue bills “shall” originate in the House of Representatives, but the Affordable Care Act did not. As constitutional questions go, this is about as easy as it gets.

It may be easy, but as we all know, the complex thinkers understand that phrases like "shall not be infringed" clearly mean "of course we can make it a felony."

To such complex and wise people, the Constitution means anything which is convenient.

I won't hold my breath waiting for deference to the actual Constitution.