In the lore of the ancient Romans, Horatius was a soldier who single-handedly fought off an invading army. The Etruscans had attacked in order to impose a despot on Rome and, by holding them back while his comrades destroyed the bridge that was the only practical route to the city, this single warrior saved the free republic. Obamacare is certainly the bridge via which the forces of despotism plan to “fundamentally transform” the United States, and a decorated Iraq veteran named Matt Sissel may be the Horatius who prevents them from crossing.
This 32-year-old artist, businessman, and holder of the Bronze Star is the plaintiff in Sissel v. U.S. Department of Health & Human Services, which Sissel sees as “a battle for my liberty -- my freedom to live out my life to the fullest.” This is the only remaining lawsuit that has any chance of bringing down the entire health care law. His lawsuit, which was filed in July of 2010, was put on hold during the run-up to last June’s Supreme Court decision to uphold most of Obamacare. Ironically, that controversial ruling gave his case a new lease on life.
In that ruling, the Majority held that the individual mandate was essentially a tax. This finding prompted the Pacific Legal Foundation (PLF), which represents Sissel, to file a new constitutional cause of action based on the way the law was rammed through Congress. What we now know as Obamacare was initially cobbled together in the Senate, and that body of Congress is not permitted by the Constitution to write tax bills. Sissel and his PLF lawyers have therefore amended their complaint to say that the “reform” law violates the Origination Clause.
Many have by now forgotten the legislative skullduggery that the Democrats, who controlled both houses of Congress at the time, used to pass this monstrosity. The Senate took a bill that had been passed by the House of Representatives, the “Service Members Home Ownership Act of 2009,” and removed every syllable. Then, the bill’s verbiage was replaced with that of a health care bill written by Democrat Senator Max Baucus with a little help from Senate Majority Leader Harry Reid and President Obama’s creatures at the White House.
In other words, the health care law the President signed -- a law filled with a myriad of new taxes -- contains not a single word written in the only legislative body permitted by the Constitution to pass bills for raising revenue. This is one of the reasons the President and his HHS minions spent so much time denying the mandate was a tax, and it is why PLF’s amended complaint alleges “this purported tax is illegal… it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause for new revenue-raising bills (Article I, Section 7).”
At present, Sissel v. U.S. Department of Health & Human Services is languishing in the U.S. District Court for the District of Columbia, which is considering a motion to dismiss filed by the Obama Justice Department late last year. It’s a virtual certainty that any decision made by that court will be appealed. The primary PLF lawyer in the case says his organization is determined to take the Origination Clause question all the way to the top: “The Supreme Court wasn’t asked and didn’t address this question in the NFIB case.”
A variety of constitutional scholars have of course weighed in on the Sissel case. Last September Georgetown Professor Randy Barnett wrote, “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. This challenge might be a good opportunity to discover whether the Origination Clause is part of the ‘Lost Constitution,’ or whether it is still a part of the written Constitution that Congress must obey.”
Meanwhile, Sissel and PLF have attempted to raise the visibility of the lawsuit with the “Enlist with Matt Sissel” campaign. Sissel has also been writing columns since 2010 explaining why he filed his lawsuit and will continue fighting: “My principles, I believe, are the same ones held by our founding fathers. To defend individual freedom, they tried to limit the size of the federal government and what it could do. They could not have conceived of the federal entanglement in people’s personal, private choices that ‘Obamacare’ represents.”
The advocates of Obamacare would, of course, characterize this as an argument for “the living Constitution.” They would say that the very inability of the founders to imagine the world in which we live constitutes an argument for ignoring the actual words they put in the Constitution. And so they march on toward the bridgehead where Sissel stands. We’ll see if the Court is willing to tear down that bridge before Sissel is trampled underfoot.