05/12/2014 10:35 am ET Updated Jul 12, 2014

George Will Strikes Out vs. Obamacare


Right-wing columnist George Will tries to change his image as a pompous snob by being a big baseball fan, just another one of us common folks.

But Spurious George, who has no problem paying for his own healthcare and, at age 73, can always depend on Medicare, doesn't have much sympathy for ordinary people who couldn't afford decent healthcare before Obamacare became law.

Few foes of the Affordable Care Act have damned it more than George. If thousands of children and older people get sick or die because they lack healthcare, that's not George's problem.

His latest anti-Obamacare effort came in his May 2 column, in which he eagerly anticipated that a fatal blow to Obamacare would be signaled last Thursday by the U.S. Court of Appeals for the District of Columbia. The column was headlined "Obamacare's doom."

"If the president wants to witness a refutation of his assertion that the survival of the Affordable Care Act is assured," the pompously self-assured Will wrote, "he should stroll the 13 blocks from his office to the nation's second-most important court," where "he can hear an argument involving yet another constitutional provision that evidently has escaped his notice."

Will's argument is that Obamacare is unconstitutional because the Supreme Court's 5-4 majority opinion by Chief Justice Roberts ruled it a tax, and that a tax is a form of revenue, and that the so-called origination clause of the Constitution says all bills for revenue must originate in the House of Representatives.

Like the lawyers who argued against it in court, Will claims that Obamacare originated in the Senate, not the House. "Two years ago, the Supreme Court saved the ACA [Obamacare] by declaring its penalty to be a tax. It thereby doomed the ACA as an unconstitutional violation of the origination clause," his column concluded.

Too bad that the courts and others, don't agree.

Even before last Thursday's session of the appeals court, Media Matters, a website aimed at refuting right-wing nonsense, pointed out that Will ignored some key facts about the legislative process, as well as a century-old Supreme Court precedent. In fact, says Media Matters, both parties in the Senate have often successfully gotten around the Constitution's origination problem by amending House-passed legislation; and MM quotes Slate's John Dickerson as saying that "both Republicans and Democrats have used the trick while in the majority."

Yale Law Professor Jack Balkin, reached much the same conclusion in a 2012 article in the Atlantic. Balkin noted that challengers to the law who cite the origination clause would have to show that "the Senate can't amend a House bill that raises revenue and substitute a different bill on a different subject. The Supreme Court's cases, however, say that the Senate can do precisely that," wrote Balkin.

The three federal appeals court judges who heard the case last Thursday, all Democratic appointees, seemed to agree with Prof. Balkin and the lower Federal court that turned thumbs down on Wills's argument. USA Today reported that "the judges appeared even more dubious" about that claim than others brought against the healthcare law.

The judges didn't seem impressed. [Judge Judith] Rogers said the House bill [the one amended by the Senate's Obamacare measure] related to corporate taxes and fit the Supreme Court's criteria for a revenue bill. [Judge Robert] Wilkins noted the opponents had no successful legal precedents on which to base their challenge, nor did any House members object at the time.

Of course George can still hope that, despite the appellate judges' lack of enthusiasm for his side's argument, they will, in the end, accept it. Most anything is possible. But how likely is it that a lower court could rule unconstitutional a law already declared constitutional by the Supreme Court? I'm not a lawyer, but I'd say, not very likely.

Even if the Appeals Court rejects the origination argument Wills supports, the Supreme Court's conservative majority could still conceivably take the case, reverse that judgment and throw Obamacare out. But how likely is it that Chief Justice Roberts or any of the four liberal justices who found the new healthcare law to be constitutional as a tax would now turn around and declare it unconstititutional because of the Congressional origin of that tax? Again, not very likely.

There are at least two powerful additional arguments that Will's case against Obamacare is doomed: Would a court really be willing to risk the chaos that would come about if it cancelled a law that has just given eight million people new health insurance policies, especially in view of the chaos surrounding Obamacare's introduction? And would the court throw into doubt the legality of a whole range of other laws passed in the same way that Obamacare was?

I think the answer is clearly NO. Even worse luck next time, George.