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Thursday, December 06, 2012

Sure People Democratically Voted For It, But There's Still No Democratic Oversight

Via Volokh, I see an interesting analysis on another angle for attacking ObamaCare through the courts:

Of course, the Court could construct a new exception to the Origination Clause, which would exempt even legislation that, like the PPACA, rests solely on Congress’ power to tax. It could expand the exception to apply not just to enforcement assessments attached to Commerce Clause enactments or other enumerated powers (such as were at issue in Munoz-Flores, Rodgers, and other cases), but also to behavior-changing taxes that rest solely on the taxing power. But that really would open the door to tax-power-based government reconstructions of American society, and with minimal democratic oversight. 

Um...per McCulloch, I'm not sure one can seriously suggest that duly-passed legislation--law that makes it through a democratically-elected Congress, is signed by a democratically-elected (well, more or less) President, and whose architects survive subsequent elections--could be the product of "minimal democratic oversight."

But I don't think any exception needs to be carved out, regardless.  If you examine the legislative history of the bill, it did, technically, originate in the House.  While the process makes the Origination Clause fairly toothless, it's not uncommon to see bills gutted like one of Hannibal Lecter's guards to be used as a shell for other legislation.  I suspect if this challenge ever got to SCOTUS, they'd probably wash their hands of it entirely as a political question regarding internal workings of Congress.


December 6, 2012 in Constitution, Schmonstitution | Permalink


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