Sissel v. HHS and Humpty Dumpty

Michael L. Grable
Obamacare's legislative and judicial history manifests as nefarious a Federal assault on its own Constitution as any single governing act in the Republic's history.  Yet a Republican-controlled House of Representatives has refused even to defund this constitutional miscarriage, let alone seriously attempting its repeal.  And all the judiciary's horses and all the judiciary's men (save for two makeshift decisions) couldn't put the Constitution together again -- until, finally, Chief Justice John Roberts pulled down even the wall on which the Constitution had sat before its fall in a decision worthy of Humpty Dumpty in Lewis Carroll's Through the Looking-Glass: "'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'"  Thus, in NFIB v. Sebelius, Congress' penalty became Roberts' tax, mooting Obamacare's shameless prostitution (as even Roberts himself recognized) of the Constitution's Commerce Clause. 

No court in the land has since dared attempt rescuing the Constitution from Roberts' Carrollian modus.  Ironically, however, it was Roberts' judicial grotesquerie itself which hatched what now comprises Obamacare's most serious extant judicial threat.  As George Will suggests here, an Obamacare tax violates the Constitution's Origination (Revenue) Clause even more clearly than an Obamacare penalty (had not Roberts sent it through the looking glass) would have prostituted the Constitution's Commerce Clause.  And the Pacific Legal Foundation (may James Madison bless it) isn't one to overlook Roberts' having jumped Obamacare out of the Constitutional frying pan and into the Constitutional fire.

PFL's initial Obamacare lawsuit, Sissel v. HHS, was a Commerce-Clause challenge.  After the intervening Roberts' decision in NFIB v. Sebelius, however, PFL amended Sissel to make it the Origination-Clause challenge which NFIB had created when Roberts transformed a legislative penalty into a judicial tax.  On June 28, 2013, however, the United States District Court for the District of Columbia found PFL's Origination-Clause challenge without merit and denied its Sissel amendment.   The Judge involved was Beryl A. Howell -- predictably an Obama nominee to the Federal Bench whom a Democratic Senate confirmed on December 27, 2010.  Moreover, Howell once spent a full decade as a senior advisor to über-liberal Patrick Leahy, the current President Pro Tempore of the U.S. Senate who has spent (going on 40 years now) virtually his entire adult life as a U.S. Senator from tiny Vermont (alas, there's Bernie Sanders too).  You may read Howell's facile Sissel decision here.

Never one to abandon a conservative cause, on July 5, 2013, PFL ("Rescuing Liberty from Coast to Coast") appealed Howell's Sissel decision (i.e., on the Origination-Clause challenge).  Briefings before the DC Circuit Court of Appeals were completed on December 20, 2013.  As George Will notes, oral argument is scheduled for May 8, 2014.  That's next Thursday.

There should be no question in any reasonable man's mind that Obamacare resulted from Harry Reid's deliberate and cynical violation of the Constitution's Origination Clause.  The only question now remaining is whether there is a Judge on the DC Circuit Court of Appeals willing to commit an act of lèse-majesté against the reigning sovereign of the Supreme Court whose makeshift decision in NFIB has since made a mockery of the Constitution and a mischief of the Nation's healthcare hereafter.

Keep your fingers crossed for PFL, Matthew Sissel, and Constitutional governance.  Because, if the "Patient Protection and Affordable Care Act" is Constitutional, virtually anything is; we've crossed the governing frontier from the rule of law to the rule of man; and everything else from here on in will mean whatever Humpty Dumpty says it means.  

 

Obamacare's legislative and judicial history manifests as nefarious a Federal assault on its own Constitution as any single governing act in the Republic's history.  Yet a Republican-controlled House of Representatives has refused even to defund this constitutional miscarriage, let alone seriously attempting its repeal.  And all the judiciary's horses and all the judiciary's men (save for two makeshift decisions) couldn't put the Constitution together again -- until, finally, Chief Justice John Roberts pulled down even the wall on which the Constitution had sat before its fall in a decision worthy of Humpty Dumpty in Lewis Carroll's Through the Looking-Glass: "'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'"  Thus, in NFIB v. Sebelius, Congress' penalty became Roberts' tax, mooting Obamacare's shameless prostitution (as even Roberts himself recognized) of the Constitution's Commerce Clause. 

No court in the land has since dared attempt rescuing the Constitution from Roberts' Carrollian modus.  Ironically, however, it was Roberts' judicial grotesquerie itself which hatched what now comprises Obamacare's most serious extant judicial threat.  As George Will suggests here, an Obamacare tax violates the Constitution's Origination (Revenue) Clause even more clearly than an Obamacare penalty (had not Roberts sent it through the looking glass) would have prostituted the Constitution's Commerce Clause.  And the Pacific Legal Foundation (may James Madison bless it) isn't one to overlook Roberts' having jumped Obamacare out of the Constitutional frying pan and into the Constitutional fire.

PFL's initial Obamacare lawsuit, Sissel v. HHS, was a Commerce-Clause challenge.  After the intervening Roberts' decision in NFIB v. Sebelius, however, PFL amended Sissel to make it the Origination-Clause challenge which NFIB had created when Roberts transformed a legislative penalty into a judicial tax.  On June 28, 2013, however, the United States District Court for the District of Columbia found PFL's Origination-Clause challenge without merit and denied its Sissel amendment.   The Judge involved was Beryl A. Howell -- predictably an Obama nominee to the Federal Bench whom a Democratic Senate confirmed on December 27, 2010.  Moreover, Howell once spent a full decade as a senior advisor to über-liberal Patrick Leahy, the current President Pro Tempore of the U.S. Senate who has spent (going on 40 years now) virtually his entire adult life as a U.S. Senator from tiny Vermont (alas, there's Bernie Sanders too).  You may read Howell's facile Sissel decision here.

Never one to abandon a conservative cause, on July 5, 2013, PFL ("Rescuing Liberty from Coast to Coast") appealed Howell's Sissel decision (i.e., on the Origination-Clause challenge).  Briefings before the DC Circuit Court of Appeals were completed on December 20, 2013.  As George Will notes, oral argument is scheduled for May 8, 2014.  That's next Thursday.

There should be no question in any reasonable man's mind that Obamacare resulted from Harry Reid's deliberate and cynical violation of the Constitution's Origination Clause.  The only question now remaining is whether there is a Judge on the DC Circuit Court of Appeals willing to commit an act of lèse-majesté against the reigning sovereign of the Supreme Court whose makeshift decision in NFIB has since made a mockery of the Constitution and a mischief of the Nation's healthcare hereafter.

Keep your fingers crossed for PFL, Matthew Sissel, and Constitutional governance.  Because, if the "Patient Protection and Affordable Care Act" is Constitutional, virtually anything is; we've crossed the governing frontier from the rule of law to the rule of man; and everything else from here on in will mean whatever Humpty Dumpty says it means.