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Judges seem skeptical of health care law challenge that centers on origin

| Thursday, May 8, 2014, 7:39 p.m.

WASHINGTON — The seemingly endless legal war over health care found an esoteric new front on Thursday, as appellate judges considered where certain bills should originate.

Amid references to various 18th-century Founding Fathers, some of them obscure, skeptical-sounding judges weighed claims that the Affordable Care Act's so-called individual mandate is invalid because it violates an under-appreciated part of the Constitution called the Origination Clause.

The clause says all bills “for raising revenue” must originate in the House of Representatives. The case pressed by the Pacific Legal Foundation, based in Sacramento, is that the health care legislation was a revenue-raising measure that effectively started in the Senate.

“Origination Clause cases,” Pacific Legal Foundation attorney Timothy Sandefur acknowledged, “are very rare.”

Practically speaking, the challenge heard for 30 minutes before a packed fifth-floor courtroom of the U.S. Court of Appeals for the District of Columbia Circuit may prove a long shot. The Supreme Court upheld the law's individual mandate nearly two years ago, and in the meantime more than 8.1 million U.S. residents have enrolled through the various health insurance exchanges. Legal theories aside, judges might think hard about trying to unwind that.

All three of the judges hearing the case were Democratic appointees, and President Obama recently named two of them to the court. Their questions and observations suggested sympathy for the administration's position, including references to the congressional health care debate itself.

“It didn't occur to any House member to raise an (Origination Clause) objection,” noted Judge Robert L. Wilkins, one of the Obama nominees.

Judge Judith W. Rogers added that “no one viewed this as a bill to raise revenues” when the Senate passed what's formally known as the Patient Protection and Affordable Care Act. If the three-judge panel agrees that the Senate did not originate a revenue-raising bill, the conservative challenge fails.

As a thought provoker and show of courthouse judo, though, the case is drawing national attention.

Along with others, the foundation originally sued to block the individual mandate as a violation of the Constitution's Commerce Clause. The mandate requires most individuals to buy insurance or pay a fee, a requirement that the Supreme Court majority agreed in 2012 exceeded Congress' power to regulate interstate commerce.

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