Just a quickie post to debunk an argument that we’re already seeing in threads and e-mails: Namely, doesn’t Article I, section 7 of the Constitution say that all bills that raise revenue must originate in the House? And didn’t ObamaCare pass the Senate before it passed the House? And doesn’t that in turn mean that our nifty new health care “tax” was passed according to unconstitutional procedures?

Unless I’m missing something, no. The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before. In fact, the conservative opinion today specifically mentioned Article I, section 7 at one point while raising no objection to Reid’s sleight of hand. Quote:

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

The Court tolerates the “shell bill” procedure, I think, because the Seventeenth Amendment has somewhat undermined the Framers’ intent of making sure that tax bills begin in the chamber that’s more accountable to the people. The House is still more accountable, but less so now that the Senate is also popularly elected. And in the case of O-Care, which passed a deep blue House at the time and a barely filibuster-proof Senate, there’s no doubt that the tax-mandate would have passed the House easily even if it had originated there. I suppose O-Care opponents could sue anyway and claim that “shell bills” in tax matters should be deemed unconstitutional because they violate the spirit of Article I, section 7, but c’mon: How likely do you think Roberts would be to say, “You’re right, I totally spaced on the origination clause in my earlier landmark ruling. Decision overturned”?

The silver lining here procedurally is that, now that the mandate’s officially a “tax,” it falls squarely within the parameters of budgetary matters than can be dealt with in the Senate via reconciliation. That means the GOP will only need 51 votes to get rid of it, not 60.

Update: While we’re at it, one more bit debunkery. Some people on Twitter this morning were speculating about whether it’d be legal now to tax guns or abortion in order to regulate them. The problem with those examples is that each involves a constitutional right, which makes taxing them a lot trickier legally. Eugene Volokh wrote a bit about it a few years ago over at his site. You can impose some sort of minimal fees, but once your tax is onerous enough that it’s deemed to have imposed a “substantial” burden on the right in question, it’s unconstitutional.