“... a number of cases in which courts upheld shell bills, but foundation attorneys counter that those rulings involved the Senate substitution of one revenue-raising bill for another.
“Here, by contrast, it is undisputed that H.R. 3590 was not originally a bill for raising revenue,” said the Pacific Legal Foundation lawsuit. “Unlike in the prior cases, the Senate’s gut-and-amend procedure made H.R. 3590 for the first time into a bill for raising revenue. The precedents the government cites are therefore inapplicable.””
The ‘catch’ is that this is the first case where the Senate replaced a non-tax bill with a tax bill.
Interesting that the argument has never been made before- I wonder if the Senate has never done this?
The gutted bill “Service Members Home Ownership Tax Act of 2009” was a “tax bill”, http://www.gop.gov/bill/111/1/hr3590.
So the argument is actually solely based on the claim that the Senate amended bill was not germane. Which the courts have required in previous origination clause cases.
Text of PLF’s amended complaint: http://www.pacificlegal.org/document.doc?id=672