A year ago I compared decorated veteran Matt Sissel to Horatius, a Roman soldier said to have single-handedly defended a bridgehead against an invasion force intent on imposing a tyrannical regime on the free republic. Sissel is the plaintiff in a constitutional challenge to Obamacare due to be heard this Thursday by the D.C Circuit Court of Appeals. And, as the Horatius analogy suggests, he may be the last man standing between us and the legions of Beltway politicians who wish to subject us to the soft despotism of the bureaucratic state.
Sissel v. HHS is the only remaining lawsuit that has any chance of actually killing Obamacare. Neither the Hobby Lobby challenge to the egregious HHS contraception mandate nor the various lawsuits challenging the IRS decision to funnel tax credits and subsidies through ineligible federal insurance exchanges have this potential. Even if the government loses all of those cases, the much-despised “reform” law will continue to bedevil us. On the other hand, if Matt Sissel prevails against the administration’s lawyers, Obamacare is history.
Sissel’s challenge to Obamacare is based on the Constitution’s origination clause, which stipulates that all tax laws must be initiated by the House of Representatives. In June of 2012 the Supreme Court ruled that the health care law’s most conspicuous provision, the individual mandate, was a tax. Pursuant to the Court’s ruling, the Pacific Legal Foundation (PLF), which represents Sissel, filed a cause of action based on the well-documented fact that the “Affordable Care Act” originated not in the House but in the U.S. Senate.
This was accomplished by a devious series of unconstitutional procedural gimmicks concocted by Harry Reid, Nancy Pelosi, and the White House. The Democrat-controlled Senate took a piece of unrelated legislation passed by the House, the “Service Members Home Ownership Act of 2009,” removed every word from the bill, and filled the empty shell with the health care legislation that was eventually passed by Congress and which its authors endowed with the Orwellian title, the “Patient Protection and Affordable Care Act.”
Thus, the “reform” law signed by Obama—a law bursting with new taxes—contains not a syllable written in the only legislative body permitted by the Constitution to pass revenue bills. A variety of Constitutional scholars have weighed in on this skulduggery, of course, including Georgetown Law Professor Randy Barnett. Barnett writes, “If any act violates the Origination Clause, it would seem to be the Affordable Care Act. The Supreme Court has never approved the ‘strike-and-replace’ procedure the Congress employed here.”
Barnett hopes that the case will be taken up by the Court, whose justices he would like to see enforce the Origination Clause rather than let it become another provision of what he calls “the Lost Constitution.” Sissel himself has also written a number of articles explaining why he filed his lawsuit and has continued fighting: “My principles, I believe, are the same ones held by our founding fathers.… They could not have conceived of the federal entanglement in people’s personal, private choices that Obamacare represents.”
Will Sissel prevail? Last week, George Will wrote that the procedural subterfuge used by the Democrats to pass Obamacare, combined with the Supreme Court’s 2012 ruling that the individual mandate is a tax, means that the law is ultimately doomed: “Two years ago, the Supreme Court saved the ACA by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the origination clause.” And, in a world where federal judges always ruled on the merits of the cases they hear, Sissel would easily win.
Alas, we do not live in such a paradise of judicial integrity. For the specific purpose of heading off Sissel’s lawsuit and Halbig v. Sebelius, a constitutional challenge to the IRS edict noted above, President Obama has packed the D.C. Circuit Court of Appeals with reliable Democrat partisans who can be counted on to rule according to the dictates of their presidential patron. This was made possible by an act of Democrat hypocrisy in the Senate breathtaking even by the sleazy standards of Senate Majority Leader Harry Reid.
Last November, the Majority Leader and his accomplices changed the rules of the Senate so that judicial appointees can no longer be filibustered. Once one of the filibuster’s ostensible champions, Reid got his marching orders from the White House and promptly reversed his position, changed the rules of the Senate, and hurried to get Obama’s judicial hacks on the bench of the D.C. Circuit. This is the court in which Sissel v. HHS will be argued. Two of the three judges making up the appeals court panel will be new Obama appointees.
So, like Horatius, Sissel still faces formidable odds. Obama has “fundamentally transformed” the court before which his lawyers must make his case. But the PLF is ultimately aiming for the Supreme Court, and Matt Sissel is no stranger to the uneven fight. Most observers believed his lawsuit was dead in 2012, yet he will be in the second most powerful court in the nation on Thursday. He sees this lawsuit as “a battle for my liberty—my freedom to live out my life to the fullest.” He won’t abandon his post at the bridgehead.
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