Fifth Circuit Rejects Origination Clause Challenge to the Affordable Care Act


On April 24, 2015, the U.S. Court of Appeals for the Fifth Circuit issued an interesting opinion in another challenge to the Affordable Care Act (ACA). In the case of Steven F. Hotze, M.D., et al., v. Burwell, the Court of Appeals considered a challenge to the Patient Protection and Affordable Care Act (ACA)–based on an alleged violation of the Constitution’s Origination Clause, U.S. Const. art. I, § 7, cl. 1, which requires that all revenue raising legislation must originate with the U.S. House of Representatives.

In October 2009, the House of Representatives unanimously passed a very modest bill, the “Service Members Home Ownership Tax Act of 2009”. The bill was sent to the Senate, which preserved the House bill’s bill number but stripped out its contents and replaced it with the ACA–legislation more than 2000 pages long which reformed the nation’s health insurance system. ACA was implemented in part by private and employer mandates to acquire health insurance, which the Supreme Court reviewed in the celebrated case of National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012). There the Court held that the individual mandate could be constitutional only if it was characterized as a “tax”. On the other hand, apparently no one challenged the employer mandate as anything other than a tax.

In their complaint, the plaintiffs complained that ACA is constitutionally suspect. The Court of Appeals ruled that the plaintiffs did not have standing to challenge either the individual or the employer mandate–Dr. Hotze was already in compliance with the law, so there is no question that he is subject to any penalty. His employer’s standing is undermined by the Tax Injunction Act, and that case must also be dismissed. The Court of Appeals agreed with the plaintiffs that their law suit involved questions of “exceptional importance”, but the Court of Appeals was, however, prevented from considering them. Other circuits may be considering similar challenges to ACA.