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How A Legal Technicality Could Unravel Obamacare
Business Insider ^ | Dec 3 2012 | Lucas Kawa

Posted on 12/03/2012 11:24:59 AM PST by WilliamIII

Obamacare supporters rejoiced in June when the Supreme Court ruled the U.S. could use its taxing authority to mandate that most people buy health insurance.

But their celebrations may have been a bit premature.

The Affordable Care Act faces other legal hurdles—including a challenge that only could have been made after the Supreme Court’s ruling.

The right-leaning Pacific Legal Foundation amended its challenge to the ACA after the Supreme Court upheld the insurance mandate under Congress’ taxing powers.

The group's challenge turns on the Origination Clause in the U.S. Constitution, which requires that bills for raising revenue start in the House of Representatives.

Problem is, the group argues, Obamacare started in the Senate.

(Excerpt) Read more at businessinsider.com ...


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: aca; affordablecareact; obamacare; originationclause; senate; supremecourt; unaffordablecareact
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1 posted on 12/03/2012 11:25:04 AM PST by WilliamIII
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To: WilliamIII

The Leftist Democrats will say “That’s old news”. They will argue it’s just a technicality, and ignore the point all together.


2 posted on 12/03/2012 11:27:38 AM PST by rockinqsranch (Dems, Libs, Socialists, call 'em what you will, they ALL have fairies livin' in their trees.)
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To: WilliamIII

It is a procedural technicality which will be ignored (or the ruling class will insist that it be ignored).


3 posted on 12/03/2012 11:29:43 AM PST by PGR88
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To: rockinqsranch
The courts ignored glaring unconstitutionality, ya think they're going to let a technicality stop their agenda?
4 posted on 12/03/2012 11:30:01 AM PST by DManA
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To: WilliamIII

Technicalities don’t matter in a dictatorship.


5 posted on 12/03/2012 11:30:40 AM PST by shelterguy
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To: WilliamIII

I could be wrong, but my understanding of how they circumvented that requirement was by using “gut and amend” - that is, taking an unrelated bill that had been passed by the House, stripping out the original contents of the bill, and “amending” the bill to include the Obamacare language. Under this process, the bill “technically” still originated in the House. The bill then just has to go back to the House for concurrence on the “amendment”.


6 posted on 12/03/2012 11:30:50 AM PST by CA Conservative (Texan by birth, Californian by circumstance)
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To: WilliamIII

fubocare was written as a tax, and fubo’s own lawyer testified under oath that it was a tax...

but, is it an equitable tax?

with all the exemptions written into the bill, the first time someone has to pay it (2014) it will go to court.

either the tax is ruled unconstitutional, or those that got them there nifty exemptions will lose them..

this ain’t over by a longshot..


7 posted on 12/03/2012 11:31:21 AM PST by joe fonebone (The clueless... they walk among us, and they vote...)
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To: WilliamIII

The court will rule that the Congress governs itself and if there is an objection on procedural grounds it must be raised within the Congress. If the rights of the House have been usurped then let the House object. Ordinary citizens have no standing to sue over such matters.


8 posted on 12/03/2012 11:34:18 AM PST by SeeSharp
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To: WilliamIII

The court,as currently constituted,are in awe of the 21st Century’s Mao Tse Tung just as certainly as are about 50% of the population.Regardless of the Constitutional validity of this petition the SCOTUS will shoot it down...5 to 4.And,of course,Roberts will vote the wrong way.


9 posted on 12/03/2012 11:35:15 AM PST by Gay State Conservative (Benghazi: What Did Baraq Know And When Did He Know It?)
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To: WilliamIII

I and many others here have been saying from day one that it was unconstitutionally passed.


10 posted on 12/03/2012 11:35:56 AM PST by Blood of Tyrants (Why is the government more concerned about protecting a microbe on Mars than an unborn baby here?)
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To: WilliamIII

The New Left has convinced much of our society to throw out the rule of law. The law is not just another tool for them to advance their agenda. The little people are irrelevant to them.


11 posted on 12/03/2012 11:36:56 AM PST by PieterCasparzen (We have to fix things ourselves)
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To: PieterCasparzen
The law is not now just another tool for them to advance their agenda.
12 posted on 12/03/2012 11:37:43 AM PST by PieterCasparzen (We have to fix things ourselves)
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To: WilliamIII
We no longer live under the rule of law.

We live under mob rule.

Whatever the mob wants, it gets.

13 posted on 12/03/2012 11:39:15 AM PST by E. Pluribus Unum ("The more numerous the laws, the more corrupt the state." - Cornelius Tacitus, Roman Senator)
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To: WilliamIII

There’s only one problem with this analysis: the Constitution is a dead letter.

It only means what the Supreme Court says it means.


14 posted on 12/03/2012 11:40:07 AM PST by Skepolitic
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To: WilliamIII

I’m not very optimistic about this mainly because all this was known at the time of the original ruling. It was still ruled constitutional.


15 posted on 12/03/2012 11:40:19 AM PST by Brooklyn Attitude (Obama being re-elected is the political equivalent of OJ being found not guilty.)
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To: WilliamIII

If they ignore the fact that the Country is ruled by a kenyan would-be dictator, I’m sure where the 0bamascare monstrosity originated will also be overlooked.


16 posted on 12/03/2012 11:41:19 AM PST by The Sons of Liberty ( Fast and Furious , Benghazi - What's 0bama's current body count?)
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To: WilliamIII

How A Legal Technicality Could Unravel Obamacare

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

“Dr. Orly Taitz, please pick up the white courtesy phone. Dr. Taitz!”

I can see this now. Birthers (of which I am one of) going from legal technicality to the next one.

Hoo Boy!


17 posted on 12/03/2012 11:43:47 AM PST by Responsibility2nd (NO LIBS. This Means Liberals and (L)libertarians! Same Thing. NO LIBS!!)
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To: WilliamIII

Obamacide will not be killed on a technicality. It might be mortally wounded when 20 or more states kick the legs out from under it by declining to set up exchanges at their own expense and put the burden on the Feds ..... and the ACA doesn’t provide funding for the setting up of exchanges by the Feds. Of course, the House Repubs would have to help out by starving the beast ....


18 posted on 12/03/2012 11:45:09 AM PST by MissMagnolia ("It is when a people forget God that tyrants forge their chains" - Patrick Henry)
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To: Blood of Tyrants
There IS grounds for SCOTUS to reconsider based on their own damn declaration that 0bamacare is a TAX. The days (and NIGHTS and WEEKENDS) of Passage of 0bamacare is the most egregious and despicable chain of events ever to take place in our Congress; Every trick in the book was used to explain it and pass it. Deception, , corruption, lies, trickery, false representation, bait and switch.. The usual Alinsky tactics.

The BASTARDS passed it not mentioning 'tax', then argued it as a tax before the SCOTUS who should've shot it down RIGHT THEN AND THERE.

I have NO doubt that Roberts was extorted, bribed, paid off and that there's a highly incriminating FBI file on him that was used to get him to vote the way he did. Gay bath house photos, maybe? His smile looks a bit 'sweet' if you ask me; Fruitcake alert!

19 posted on 12/03/2012 11:46:05 AM PST by Obama_Is_Sabotaging_America (IMPEACH OBAMA)
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To: Gay State Conservative
Georgetown Law School Professor Randy Barnett thinks Pacific will be successful, contending the Senate used a "shell bill procedure" to "scoop out" the contents of a House bill and insert its own language.

The traitor Roberts won't give an argument like this a second's thought.

20 posted on 12/03/2012 11:46:20 AM PST by 2nd Bn, 11th Mar (The "p" in Democrat stands for patriotism.)
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To: CA Conservative
I could be wrong, but my understanding of how they circumvented that requirement was by using “gut and amend” - that is, taking an unrelated bill that had been passed by the House, stripping out the original contents of the bill, and “amending” the bill to include the Obamacare language.

You are correct. The Senate took The Servicemembers Home Ownership Tax Act of 2009, H.R. 3590, and stripped it.

21 posted on 12/03/2012 11:46:38 AM PST by Scoutmaster (You knew the job was dangerous when you took it)
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To: Scoutmaster
It will be a sad day if that is allowed to "get around" this Constitutional requirement.

Why not have a judge sign a warrant to search a known crack house in East St Louis -- then go off and "modify" the warrant and search any house you please? Letter of the law? Spirit of the law? The Senate definitely violated at least one of these.

22 posted on 12/03/2012 11:53:08 AM PST by ClearCase_guy (Global Warming is a religion, and I don't want to be taxed to pay for a faith that is not mine.)
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To: SeeSharp
"The court will rule that the Congress governs itself and if there is an objection on procedural grounds it must be raised within the Congress. If the rights of the House have been usurped then let the House object. Ordinary citizens have no standing to sue over such matters."

But this isn't a clear-cut simple little House rules procedural issue. This is about what the Constitution clearly says: tax bills must begin in the House.

23 posted on 12/03/2012 11:56:35 AM PST by SW6906 (6 things you can't have too much of: sex, money, firewood, horsepower, guns and ammunition.)
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To: joe fonebone

I always wondered why no one has sued Obamacare under the “equal protection” clause.

McDonalds and other big, connected and well-funded corporations have waivers or exemptions. Why can not my small business get a waiver? Isn’t that ipso facto unequal protection and unequal application of the law?


24 posted on 12/03/2012 11:57:58 AM PST by PGR88
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To: Obama_Is_Sabotaging_America
Deception, corruption, lies, trickery, false representation, bait and switch.. The usual Alinsky tactics.

You forgot strong arm tactics and blackmail.

25 posted on 12/03/2012 12:00:52 PM PST by Bloody Sam Roberts (A fine is a tax for doing wrong. A tax is a fine for doing well.)
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To: shelterguy
Technicalities don’t matter in a dictatorship.

Indeed. Why should they start abiding by the constitution?

26 posted on 12/03/2012 12:02:51 PM PST by VoiceOfBruck (Goat ropers need love too)
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To: 2nd Bn, 11th Mar

The Senate did take a house bill and change it so much that it was unrecognizable, really. That, however, is the technicality upon which the court will look. They will say that technically, obamacare did begin in the house.


27 posted on 12/03/2012 12:07:21 PM PST by xzins (Retired Army Chaplain and Proud of It! True supporters of our troops pray for their victory!)
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To: WilliamIII
Codeword: IPAB


28 posted on 12/03/2012 12:10:55 PM PST by twister881
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To: joe fonebone

Considering the large number of waivers issued and the remaining organizations to which 0bamaCare is applied, is 0bamaCare a Bill of Attainder?


29 posted on 12/03/2012 12:13:43 PM PST by Uncle Miltie (Working is for suckers.)
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To: WilliamIII

These people don’t care about technicalities, and neither do they care about legality.

(The rule of law ain’t no maw.)

IMHO


30 posted on 12/03/2012 12:14:03 PM PST by ripley
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To: CA Conservative

Resolved from the House of Representatives (H.R. 3590)
Entitled
"An act to amend the Internal Revenue Code of 1986
to modify first-time home buyers credit...

THIS IS HOW OBAMA WILL RULE

31 posted on 12/03/2012 12:14:30 PM PST by RedMDer (Please support Toys for Tots this CHRISTmas season.)
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To: CA Conservative
"I could be wrong, but my understanding of how they circumvented that requirement was by using “gut and amend” - that is, taking an unrelated bill that had been passed by the House, stripping out the original contents of the bill, and “amending” the bill to include the Obamacare language. Under this process, the bill “technically” still originated in the House. The bill then just has to go back to the House for concurrence on the “amendment”."


Even if that is the case, direct taxes are required to be apportioned, and if the mandate is a tax, it is an unapportioned direct tax.

The problem with arguing the Constitutionality of a tax, you need to wait until the tax is already in effect before you can argue against it's Constitutionality.
32 posted on 12/03/2012 12:14:30 PM PST by MMaschin
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To: rockinqsranch
They will argue it’s just a technicality, and ignore the point all together.

As a trial run for arguing that the Second Amendment is just a technicality?

33 posted on 12/03/2012 12:15:11 PM PST by danielmryan
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To: WilliamIII

With all the Waivers issued, what about filing suit on an Equal Protection of the Law basis?

Massive Waivers prove 0bamaCare is unequally applied law, contrary to the 14th Amendment.


34 posted on 12/03/2012 12:15:41 PM PST by Uncle Miltie (Working is for suckers.)
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To: CA Conservative

You are correct. This method may or may not pass legal muster at the supreme court.

I am afraid this case was not the one to test the theory though. I suspect the gut and replace will be upheld and used again in the future.


35 posted on 12/03/2012 12:17:34 PM PST by cableguymn (The founding fathers would be shooting by now..)
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To: SeeSharp
The court will rule that the Congress governs itself and if there is an objection on procedural grounds it must be raised within the Congress. If the rights of the House have been usurped then let the House object. Ordinary citizens have no standing to sue over such matters.

Nope, you have no standing. You merely obey and fork the money over.

(Sorry about sounding blithe, but it sounds like the punch line to a Readers Digest joke.)

36 posted on 12/03/2012 12:20:56 PM PST by danielmryan
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To: WilliamIII
Constitution? What Constitution?

It's old, it's outdated, it was written by a bunch of rich old white men.

Who cares about the Constitution?

37 posted on 12/03/2012 12:22:25 PM PST by elkfersupper ( Member of the Original Defiant Class)
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To: WilliamIII
RE :”The group's challenge turns on the Origination Clause in the U.S. Constitution, which requires that bills for raising revenue start in the House of Representatives.
Problem is, the group argues, Obamacare started in the Senate.”

Didnt they come up with a loophole for this, by getting the House to pass the exact same bill as the Senate did? The other trick was to gut a bill already sent over and replace the details. there were a total of 3 bills passed by each house, but 2 of each matched in each house signed by O, because of budget reconciliation.

I was thinking about this because Obama and Reid are demanding that the House pass that tax bill that the Senate already passed, so its exactly the same crap.

38 posted on 12/03/2012 12:23:12 PM PST by sickoflibs (Dems want to win.The GOP wants to whine. Why dont they fight to win like Dems do?)
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To: PGR88

well, to put it simply, you cannot for damages if you have not been damaged yet..

2014, that is when the first payments will have to be made, and that is when it will go to court..


39 posted on 12/03/2012 12:23:53 PM PST by joe fonebone (The clueless... they walk among us, and they vote...)
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To: ripley
These people don’t care about technicalities, and neither do they care about legality.

And they've believed that in their sneaky little hearts for decades. Remember that blather about "Man, through Society, will finally master his Destiny"? It doesn't take much parsing to see that the blather-dispensers are calling for the "Rule of Man" - i.e., the rule of men.

40 posted on 12/03/2012 12:25:14 PM PST by danielmryan
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To: Obama_Is_Sabotaging_America

I have become convinced that Roberts was in some way coerced to change his position. Either threatening him or his family. I have never believed that such things actually take place, especially at that high a level, but when you look at his orginal declarations during the case and in the original majority opinion he originally wrote, there is no other logical reason he would have decided to change his mind and use the circuitous reasoning he eventually used in his second majority opinion. It simply makes no sense. At first I just accepted that he was afraid his court would be viewed as too political and changed, but even if he did have that change of heart, his decision would not have been such a mess.


41 posted on 12/03/2012 12:30:01 PM PST by ilgipper (Obama supporters are comprised of the uninformed & the ill-informed)
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To: WilliamIII
The group's challenge turns on the Origination Clause in the U.S. Constitution, which requires that bills for raising revenue start in the House of Representatives. Problem is, the group argues, Obamacare started in the Senate.

Well......duh!?

FMCDH(BITS).....see tagline.

42 posted on 12/03/2012 12:41:07 PM PST by nothingnew (I fear for my Republic due to marxist influence in our government. Open eyes/see)
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To: WilliamIII

Roberts already made it crystal clear that he will uphold Obamacare based on politics, not law. Unless he has somehow changed his mind in the interim, this is a waste of time.


43 posted on 12/03/2012 12:44:03 PM PST by Behind the Blue Wall
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To: WilliamIII

it’s getting clearer by the day that it’s just a question of time before the SHTF and the people will take back DC. Once that happens it would do to amend the Constitution so all elected officials can not exclude themselves from any laws they pass. They get no special treatment or perks in any way, period. All newly proposed legislation before voted upon would have to first pass Constitutional scrutiny.


44 posted on 12/03/2012 12:45:26 PM PST by drypowder
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To: WilliamIII

Going nowhere


45 posted on 12/03/2012 12:49:46 PM PST by GlockThe Vote (The Obama Adminstration: 2nd wave of attacks on America after 9/11)
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To: WilliamIII
The real issue here seems to me to be that it is impossible for HHS to issue waivers to something that has been declared a tax. Any type of exemptions to taxes must be written into the tax code. Perhaps I'm missing something but I don't understand why few have seen what appears to be an obvious oversight. If they declare all of the waivers issued null and void, ObamaCare will be repealed tomorrow.
46 posted on 12/03/2012 12:57:28 PM PST by HarleyD
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To: WilliamIII

Duh!!! That’s why Roberts let it pass. That’s how it is supposed to work


47 posted on 12/03/2012 1:00:50 PM PST by ImJustAnotherOkie (zerogottago)
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To: WilliamIII

I do not trust this Supreme Court to rule the right way a second time, considering they blew it the first time.


48 posted on 12/03/2012 1:45:02 PM PST by tbw2
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To: WilliamIII

Prediction: John Roberts will decide to rule that for purposes of this bill the Senate is actually the House.
Problem solved.


49 posted on 12/03/2012 1:50:07 PM PST by Buckeye McFrog
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To: WilliamIII

As I recall, this was discussed earlier and the Senate took an existing House effort and turned it into Obama Care. It did originate in the House as I recall


50 posted on 12/03/2012 1:55:32 PM PST by bert ((K.E. N.P. N.C. +12 .....The fairest Deduction to be reduced is the Standard Deduction)
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