FURTHER UPDATE Thursday 2:33 p.m. The Supreme Court has now scheduled this case to go before the Justices at their private Conference on January 15, according to the Court’s docket. If granted, this movement of the case so soon after the filings were completed helps assure that it could be finally decided in the current Term.

UPDATED Wednesday 11:53 p.m. Matt Sissel’s lawyers filed their reply brief on Tuesday, completing all of the filings and thus enabling the Court to schedule action on the case in January. On the government’s point that Sissel cannot benefit from his constitutional argument, the new brief argues that the passage of later amendments to the ACA cannot cure the constitutional defect of passage of the original version.

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Attempting to head off the fifth and latest challenge in the Supreme Court to the Affordable Care Act, the Obama administration has told the Justices that the individual protesting the mandate to buy insurance could not win even if he proved his constitutional point. His argument that the act was passed outside the limits of the Constitution would not make a difference because he is not covered by the version he opposes, according to the new government brief, filed on Monday and now available.

If the Court nevertheless took on the case of Sissel v. Department of Health and Human Services, the new filing contended, the Court should reject the core challenge that he has raised just as it has every time it has come up before the Justices in past history. That argument is that a piece of federal legislation that raises some money for the U.S. government by a tax must begin its journey in the House of Representatives, under the so-called Origination Clause of Article I.

The individual at the center of the new ACA protest case is Matt Sissel, a portrait artist in Iowa City, Iowa, who served as an Army combat medic in Iraq. He does not have health insurance, and does not want to either buy a policy, as he is required to do under the ACA mandate, or pay a financial penalty to the government. His challenge, rejected by two lower courts, relies upon this constitutional provision: “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.”

When a House-passed minor tax bill that had nothing to do with health insurance reform reached the Senate in December 2009, the Senate erased all of the substance of that bill and substituted the massive ACA as a complete amendment. That version went back to the House, and gained approval there, and President Barack Obama signed it into law in March 2010.

When Sissel lost his case in the U.S. Court of Appeals for the District of Columbia Circuit, a three-judge panel ruled that the Origination Clause only applies to bills that are intended to raise revenue, and not to those that may raise revenue but are actually intended to serve some other government purpose. The primary aim of the individual mandate, the panel decided, was to induce individuals to buy health insurance to make the overall economic project of health insurance reform work as a practical matter. Thus, the ACA did not even meet the definition of a bill governed by the Origination Clause, according to the panel.

When the eleven-member D.C. Circuit refused to reconsider the case en banc, four judges argued that the government should still win the case, but for a different reason. Those judges regarded the ACA as a bill to raise revenue, but they went on to rule that it did not violate the Origination Clause because of the second half of that clause — which authorizes the Senate to amend House-passed bills.

Sissel’s lawyers filed his petition in October, challenging both approaches taken by the D.C. Circuit judges.

Replying, the Obama administration said that its view of the limited scope of the Origination Clause had been understood as the law since 1833, when Supreme Court Justice Joseph Story spelled it out that way in his constitutional commentaries. The Supreme Court embraced that view, the brief said, in decisions beginning in 1876 and continuing as recently as 1990.

Every judge who has considered Sissel’s claim, the brief commented, “has now rejected it, and the disagreement among some over the proper reason for rejecting it does not merit this Court’s review.” Quoting one of the Court’s prior precedents, the brief said the Court “reviews judgments, not statements in opinions.”

Although almost all of the new filing is devoted to the arguments the government makes for its interpretation of the clause at issue, the final two paragraphs were intended to close off Sissel’s claim by saying he could not personally benefit from it.

The brief noted that, a week after the ACA had become law, Congress passed a series of amendments of various parts of the ACA. One of those changed the formula for calculating how much an individual would have to pay the government for failing to obtain health insurance. That measure originated in the House and little change was made in it when it then went through the Senate and then went on to be signed by the president.

Sissel himself, the brief said, is not subject to the version of the individual mandate that he seeks to challenge — the original ACA — because his situation is actually covered by the amended version. As a result, the government said, Sissel “would not be entitled to relief even if he were correct that the original enactment of that provision in the Affordable Care Act is improper.”

Moreover, the brief said, in a final thrust, the House’s approval of the amendments to the ACA should cure a violation — if any had occurred — because its action reflected congressional ratification of the mandate through a procedure satisfying the origination requirement.

Sissel’s lawyers will have an opportunity to file a reply brief. It is unclear, at this point, whether the initial filings will be completed in time for the Court to grant review and decide the case during the current Term. The Court would have to grant review sometime next month to set up a final decision this Term.

The Court already has agreed to decide, this Term, the fourth case testing the ACA — this time, the law’s mandate that female employees have access to free birth-control devices and methods under a system that allows some exemptions for religious non-profit employers — exemptions that many such institutions regard as inadequate to protect their religious objections to such devices and methods.

Recommended Citation: Lyle Denniston, U.S. seeks to head off new review of ACA individual mandate (FURTHER UPDATE), SCOTUSblog (Dec. 30, 2015, 3:17 PM), https://www.scotusblog.com/2015/12/u-s-seeks-to-head-off-new-review-of-aca-individual-mandate/