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. at

2607–08 (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. at

143 (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