Did Roberts Wipe His Butt With The Constitution?

The origination clause shell game.

In his majority opinion, Justice Roberts failed to even mention the bill’s legislative history. He ignored the Origination Clause problem presented by Senate Majority Leader Reid's “shell bill” and its constitutional circumvention. Presumably, he relied upon the “enrolled bill rule” established in the Court’s 1892 Marshall Fields Co. v. Clark decision as an excuse to overlook Senator Reid’s fraudulent trickery. Under the “enrolled bill rule,” the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the “proper origination of the bill.”

Roberts may have also relied upon a very recent and highly suspect legislative precedent that some claim established the legitimacy of this “shell bill” Origination Clause scam. It was the same tactic used when the Senate passed the infamous TARP Bailout Bill in October, 2008.

Roberts did, however, argue emphatically in the grotesquely twisted logic of his majority opinion that the penalty to be paid by individuals who failed to purchase health insurance was a tax. He made this dubious argument despite the facts that the bill itself fails to mention the word “tax,” and President Obama and the Democratic members of Congress who passed the bill in 2010 vigorously denied on innumerable occasions prior to its passage that it was a tax.

In effect, Justice Roberts became the second con artist in a two-man bait and switch scam. Had President Obama called the individual mandate a “tax” prior to its passage, it simply would have not had the political steam to pass. After all, it only became law by the barest of margins using the most deceptive of techniques. Justice Roberts effectively announced that the federal government had been kidding all along. Yes, of course, he said, the individual mandate was a tax.

Having accepted the “shell bill” scam, Roberts was now forced to play an Origination Clause “shell game.” Rather than explain why the Senate's ruse did not circumvent the Framers' clear intent in the Origination Clause, Roberts ignored the question entirely. But as James Saturno of the Congressional Research Service wrote in “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement,” there is good recent judicial precedent to invalidate this particular legislative chicanery:

The application of the enrolled bill rule to insulate cases arising from the Origination Clause, however, does not appear to be absolute. In [United States v. Munoz-Flores (1990)], ... the Court held that while a judicial finding that Congress had passed an unconstitutional law might in some sense be said to entail "a lack of respect" for Congress’ judgment, that this was not sufficient to make a question justiciable, on the basis of either the enrolled bill rule or as a political question. Justice Marshall, writing the majority opinion of the Court, stated that:

"If it were every [italic in original] judicial resolution of a constitutional challenge to a congressional enactment would be impressible…Congressional consideration of constitutional questions does not foreclose subsequent judicial scrutiny…Although the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve the Court of its responsibility to consider constitutional challenges to congressional enactments…A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would a law passed in violation of the First Amendment."