The lawsuit will face hurdles from the start. The district court will look to Supreme Court precedent on the Origination Clause, and the high court has followed two broad principles in evaluating whether laws violate the clause, according to a March 2011 Congressional Research Service report. The first is that “raising money must be the primary purpose of the [contested] measure, rather than an incidental effect,” and the second is that the resulting funds must not be for general federal expenses, but rather for “a single, specific purpose.”
Under the health care law, Beard says, the penalties paid by those without health insurance would go to the Treasury, rather than to a specific program associated with health care. That, he contends, makes the overhaul more vulnerable than other statutes upheld by the Supreme Court despite Origination Clause challenges.
It is different, for example, from a Senate-originated law that the court upheld in 1990. That statute required those guilty of federal misdemeanors to pay a “special assessment,” and the court found that the law did not run afoul of the Origination Clause because the revenue created by the assessment was not going to the Treasury but to a special Crime Victims Fund.
The harder task may be persuading a lower court that the primary purpose of the health care overhaul is to raise money for the government, rather than to insure more Americans.
In addition, the House can and does object when the Senate includes a revenue provision in a bill that did not originate in the House, an objection voiced by issuing what is known as a blue slip. The House has raised such objections in the current Congress, refusing to take up a Senate-passed reauthorization of a domestic violence prevention law (S 1925) because it contains a provision that increases immigrant visa fees.
No “blue slip” was issued during negotiations on the health care law, and there may be legal questions raised about why a law should be retroactively struck down for violating the Origination Clause when the House raised no such objection during the legislative process itself.
Eric M. Jensen, a tax law professor at Case Western University in Ohio, said another consideration for the court would be how to kill the health care law without endangering scores of other revenue measures that technically may not have originated in the House.
“This could call into question the legitimacy of a huge number of federal statutes, which I think is probably another reason why any reasonable court is going to try to duck the issue,” Jensen said.
Others, meanwhile, say that what happened in the case of the health care law — a total rewrite by the Senate of a House revenue bill — is hardly unprecedented. In 1982, for example, the Senate “amended a minor House bill reducing taxes with a several-hundred-page amendment increasing taxes by about $100 billion,” according to an analysis of Origination Clause practice by Michael W. Evans, a former chief counsel to the Senate Finance Committee.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.