Constitutional Law, Featured, Obamacare, Peter Blake, Taxes

Blake: ObamaCare's legislative shuffle couldn't have happened in CO

Another lawsuit challenging the constitutionality of Obamacare leads, in a roundabout way, to the conclusion that, compared to Congress, the Colorado legislature is a model of order, discipline, fairness and rationality.

Maybe the much maligned state constitution isn’t too long after all. Maybe the federal version should be a little bit longer.

Colorado Attorney General John Suthers has become a participant in the latest health care challenge, just as he was four years ago in the original one.

Filed by a Texas physician, Hotze vs. Sebelius claims that the law violates the federal Constitution’s Origination Clause. Article I, Section 7 specifies that “All bills for raising revenue shall originate in the House of Representatives…”

Obamacare was a revenue-raising bill? You’ll recall that Chief Justice John Roberts, writing for a 5-4 majority, had to conclude that the levies for not buying health insurance were actually taxes, not penalties as specified in the bill. That’s how he saved the law and kept himself welcome at Washington parties. Neither Roberts nor other conservatives on the court could stretch the Commerce Clause to include penalties on Americans for economic inactivity, like not buying insurance. But taxes? All right. Congress can levy them.

The tax issue hadn’t been argued before the court in NFIB vs. Sebelius. Roberts brought it in from the blue.

Now you can see the new Texas plaintiff’s mind at work: “OK, the chief justice says the law survives only because it is a tax. Then the bill should have started in the House of Representatives, which it didn’t. Let’s see how the courts work around that.”

A little background: H.R. 3590 was a six-page bill that provided tax breaks for homeowners serving in the military. It had nothing to do with health. It passed the House 416-0 in October 2009. But when it got to the Senate, the entire text and title were stripped out and 2,074 pages of the so-called “Patient Protection and Affordable Care Act” were substituted. It passed the Senate with a filibuster-proof 60-39 in December 2009 thanks to various bribes offered by the administration (“The Cornhusker Kickback,” “Louisiana Purchase,” “Gator Aid” et al.). Then it slipped through what was then the Democratic-controlled House 220-2111 in March 2010. The president signed it two days later.

Obamacare supporters claim that the veterans housing bill was tax related and thus the “gut and amend” maneuver was legitimate under Article I, Section 7.

But stuff like that doesn’t work in Colorado. In addition to requiring that revenue measures begin in the House, our constitution says (Article V, Section 21) that a bill must be a single subject under a title you can’t change.

Then there’s Article V, Section 17: “No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose.” Wouldn’t that look good in the U.S. Constitution!

These provisos were in the original 1876 state constitution. Apparently Colorado’s organizers were familiar with congressional and legislative hijinks elsewhere and didn’t want them here. I’ve spent my career criticizing the Colorado legislature, but only because it is often wrongheaded. It works its will through partisan muscle, not through the legislative legerdemain so common in D.C. The process, at least, is straightforward. We take it for granted, but we shouldn’t.

Suthers is one of 20 state attorneys general who’ve joined in the Hotze suit. They’ve submitted a friend-of-the-court brief to the 5th Circuit Court of Appeals, where it is waiting to be argued. Hotze lost in a Texas federal court last year. Judge Nancy Atlas rejected the suit because the Obamacare bill only “incidentally” raised revenue and that tax payments aren’t part of the bill’s “overarching purpose.” The judge also gave very wide latitude toward the Senate’s constitutional power to amend House-initiated revenue bills.

There’s a similar suit, also based on the Origination Clause, brought by Matt Sissel, who owns an art studio and gallery in Cedar Rapids, Iowa. Aided by the Pacific Legal Foundation, he made similar arguments in federal district court — and lost on similar grounds. His appeal to the D.C. Circuit Court of Appeals was argued May 8. Two of the three judges who heard the case are recent Obama appointees and reporter John Gizzi of Newsmax wrote all three “at times seemed skeptical of and even hostile toward” Sissel’s arguments.

Hotze is more optimistic, having maintained at a news conference that the 5th Circuit is more conservative and thus more likely to agree with him. In their amicus brief, the attorneys general note that the district court upheld Obamacare “on the theory that it is a tax for purposes of NFIB and the Commerce Clause, but it is not a tax for purposes of this case and the Origination Clause.”

The AGs maintained “we are aware of no case from the Supreme Court, this court, or any of its sister circuits that embraces such constitutional contortionism.”

If the 5th Circuit reaches a different conclusion than the D.C. Circuit, the case is more likely to be accepted by the Supreme Court. And that is what the plaintiffs want. They may not win, but at least they’ll enjoy watching Roberts and the Supremes practice “constitutional contortionism.”

Meanwhile we can appreciate the Colorado legislature’s orderly procedures, which require committee hearings, firm titles, single subjects, freedom to offer amendments — even time to read the bills. No hurry-up Pelosian strategies like “we have to pass the bill so that you can find out what’s in it.”

One veteran legislative drafter (they all hate to be identified) said “It’s so much easier on the state level. I’ve never understood why people want to deal with the federal stuff. I don’t want to hurt my brain.”

Longtime Rocky Mountain News political columnist Peter Blake now writes Thursdays for Contact him at You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and


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