The Wall Street Journal’s James Taranto writes that Pacific Legal Foundation’s challenge to Obamacare is unlikely to succeed. Assuming that Obamacare’s monetary exaction for not buying insurance is a tax, as the Supreme Court called it in its June opinion, still not all taxes are “bills for raising revenue,” which the Constitution requires to be generated by the House. Thus “the revenues from the ObamaCare mandate tax are ‘incidental’ to its primary purpose, which is to encourage people to buy insurance.” And if that’s the case, writes Taranto, the Origination Clause does not apply, under the Supreme Court’s decision in United States v. Munoz-Flores.
Obviously we cannot say what the courts will decide until they do, but we’re under no illusions at PLF. We’ve been in the business of litigating for freedom for 39 years, and in that time we’ve learned that such battles are typically waged uphill. We are all too familiar with the obstacles, particularly when it comes to the Patient Protection And Affordable Care Act—a law most Americans oppose, and which at the last minute was rescued from constitutional oblivion by a “saving construction” which to this day the Obama Administration itself refuses to accept. (It’s telling that the Administration claims to have won the NFIB case, but still denies it’s a tax.) On the other hand, remember that a year ago the overwhelming consensus of lawyers, judges, and law professors was that the Commerce Clause challenge to Obamacare was doomed—indeed, legally frivolous and laughable. Ultimately, that challenge succeeded, and it did so because it was right on the merits. All honest lawyers can do to win a case is be right on the merits. The rest is up to the court. In any event, we’ve learned through nearly two generations of suing the government not to try to predict a judge’s decision.
But is the Obamacare tax a “bill for raising revenue”?