START OF 2018 OPEN ENROLLMENT PERIOD

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(sigh) Stop me if you've heard this one before: "anti-Obamacare lawsuit could head to Supreme Court"

No, no...not that one. Not that one either. Nor that one. Nope, not even that one. It's also not this one, which I wrote about last month.

No, this is a different court case, which hinges on the "origination clause":

The challenge concerns the Origination Clause, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The original idea was to give control over the power to raise revenue to the House, which was thought to be more directly accountable to the people than the Senate, whose members were then selected by state legislatures.

Technically, the ACA adhered to this process. The bill that became the ACA was first introduced in the House as the “Service Members Home Ownership Tax Act of 2009.” Although the bill had nothing to do with health care, it did, among other things, increase corporate taxes by about $1 billion. After the bill passed in the House, the Senate amendedit to strike out its substance and replace it with the bill that became the ACA.

At least two lawsuits have now been filed arguing that this “shell bill” procedure violates the Origination Clause. Sure, the challengers argue, it’s OK for the Senate to amend House bills that raise revenue. But the Senate replaced the House bill. The Constitution, they say, can’t be satisfied with that empty formalism.

So far, the challengers haven’t had much luck. A Washington, DC district court dismissedthe lawsuit last June; a Texas district court did the same this January; and the case was argued to a decidedly unimpressed panel of the D.C. Circuit last month. Why have the challenges failed? And are they likely to fare any better down the line?

You'll notice that this write-up on the case, by University of Michigan asst. law professor Nicholas Bagley, was actually written last June.

So, what's the latest skinny today?

In 61 pages of dueling opinions, the D.C. Circuit has rejected a request to take en banc yet another challenge to the Obamacare law, one grounded in the “Origination Clause” of the Constitution (providing that all bills which raise revenue must originate in the House of Representatives).  The extensive dissent from rehearing en banc, written by SCOTUS shortlister Judge Brett Kavanaugh, and joined by Judges Henderson, Brown, and Griffith, raises an originalist and textualist argument that is sure to attract the attention of at least some of the Court’s conservatives making it a serious candidate for Supreme Court review in the next term. The main reason the Court might not want to take the case is that the dissenters would reach the same result as the majority (yet still take the case to resolve the main issue). [Update: Challengers have announced they will take the case to the Supreme Court.]

The issue presented in the case is arcane, though perhaps not as arcane as the “established by the state” fight in King v. Burwell, the last Obamacare challenge.  Like King, the question comes out of the rushed and partisan way in which the ACA got out of Congress.

Between this and the other potentially major court case still swirling around in the legal system, "House v. Burwell" (or, as I like to call it, King v. Burwell Jr.), there could still be judicial headaches ahead for the ACA after all.

Then again, the Supreme Court might tell both plaintiffs to take a flying leap. Even Scalia and Alito must be getting pretty sick & tired of hearing these cases by now.