Insurance Mandate Illegal Because of Chief Justice Roberts’ Ruling

After the arguments were heard before the U.S. Supreme Court in March, it appeared that the insurance mandate portion of the Affordable Care Act was doomed.  Many were hoping that the entire health care package would be thrown out as well.

On June 28, 2012, the U.S. Supreme Court rendered its decision.  In a move that stunned the nation, the vote was 5-4 to uphold the insurance mandate and the rest of the Affordable Care Act.  The vote had come down to a 4-4 vote, giving Chief Justice John Roberts the deciding vote.  Although known as a conservative, Roberts voted that the insurance mandate was illegal ONLY because it was tied to a tax.  He ruled that since the penalty for not being insured was to be collected by the I.R.S., that it amounted to a tax and that Congress has the legal right to levy taxes.

In his ruling, Robert’s also stated that the requirement to force someone to purchase a product or pay a penalty does violate the Commerce Clause of the U.S. Constitution.  Because he also ruled that the insurance mandate was a tax and not a penalty, that it no longer violated the Commerce Clause and as such was legal.

However, by Roberts’ very ruling, he actually made the insurance mandate illegal and subject to further litigation and possibly still being thrown out.

In 2010, the Pacific Legal Foundation filed a suit on behalf of Matt Sissel challenging the legality of the insurance mandate on the grounds of his being forced to purchase health insurance or face a penalty.  When the U.S. Supreme Court took on three other cases, the PLF put Sissel’s case on hold pending the court’s decision.

We all know what that decision was, but in making his ruling, Chief Justice Roberts opened up the door for another legal challenge.  PLF has just asked the courts once again to overturn the insurance mandate on two grounds.

The first issue was created when Roberts declared the penalty to be a tax.  According to the Origination Clause of the U.S. Constitution, all tax or revenue generating legislation must begin in the U.S. House of Representatives.  The Affordable Care Act was first introduced by Senate Majority Leader Harry Reid in the U.S. Senate and not the House.  Therefore, the insurance mandate tax violates the Origination Clause of the U.S. Constitution and must be struck down.

The second issue is that since the U.S. Senate cannot initiate any tax or revenue generating legislation, the penalty for not purchasing health insurance cannot be a tax according to the Origination Clause.  If it cannot be a tax, then it has to be a penalty and thus we go back to a violation of the Commerce Clause which Chief Justice Roberts said the insurance mandate would be.

Pacific Legal Foundation has amended their initial suit, Sissel v. U.S. Department of Health & Human Services, to include the argument of the Origination Clause.  The legal action is currently pending in the U.S. District Court for the District of Columbia.

Even if America is cursed with four more years of Barack Obama and Democratic rule, there is still hope that the insurance mandate will be repealed by the courts.  If so, it is vitally important that the Republicans continue to control the House because as long as they do, they should be able to block any legislation to impose the penalty as a tax.