Sissel v. U.S. Dep't of Health & Human Servs.
| Citation | 799 F.3d 1035 (Mem) |
| Decision Date | 07 August 2015 |
| Docket Number | No. 13–5202.,13–5202. |
| Parties | Matt SISSEL, Appellant v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
799 F.3d 1035 (Mem)
Matt SISSEL, Appellant
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellees.
No. 13–5202.
United States Court of Appeals, District of Columbia Circuit.
Aug. 7, 2015.
Theodore Hadzi–Antich, Paul James Beard, II, Timothy Mason Sandefur, Pacific Legal Foundation, Sacramento, CA, for Appellant.
Alisa B. Klein, Mark B. Stern, Beth S. Brinkmann, Doj Appellate Counsel, Stuart F. Delery, U.S. Department of Justice, Washington, DC, Ronald C. Machen, Jr., Esquire, U.S. Attorney's Office, Washington, DC, for Appellees.
Before: GARLAND, Chief Judge; HENDERSON* , ROGERS, TATEL, BROWN * , GRIFFITH * , KAVANAUGH * , SRINIVASAN, MILLETT, PILLARD and WILKINS, Circuit Judges.
On Petition for Rehearing En Banc
ORDER
Appellant's petition for rehearing en banc, the response thereto, and the briefs of amici curiae in support of appellant were circulated to the full court, and a vote was requested. Thereafter a majority of the judges of the court in regular, active service did not vote in favor of the petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
A statement by Circuit Judges ROGERS, PILLARD, and WILKINS, concurring in the denial of rehearing en banc, is attached.
A statement by Circuit Judge KAVANAUGH, with whom Circuit Judges HENDERSON, BROWN, and GRIFFITH join, dissenting from the denial of rehearing en banc, is attached.
ROGERS, PILLARD, AND WILKINS, Circuit Judges, concurring in the denial of rehearing en banc:
A majority of the court has voted to deny the petition for en banc rehearing of this case. A dissenting statement, however, charges the original panel opinion with undermining individual liberty by upsetting the balance of power between the two Houses of Congress. See Dissent at 1064–65. Our opinion does no such thing.
Our examination of the Origination Clause's text and history, as well as congressional practice and Supreme Court precedent related to the Clause, persuaded us that the clearest and narrowest ground on which to resolve Sissel's challenge to the payment required under section 5000A of the Affordable Care Act, 26 U.S.C. § 5000A, was to rely on the Supreme Court's established purposive approach. The Court recognized in National Federation of Independent Business (NFIB) v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 2596, 183 L.Ed.2d 450 (2012), that, “[a]lthough the [section 5000A ] payment will raise considerable revenue [if people do not ‘sign up’], it is plainly designed to expand health insurance coverage,” acknowledging that the purpose of the Affordable Care Act (“ACA”) and its tax penalty was to spur conduct, not to raise
revenue for the general operations of government.
Doctrinal and prudential reasons counseled against relying on the alternative ground that the dissent proposes the en banc court adopt. Among other things, the panel's narrow course avoided more categorical and less historically rooted holdings that the dissent's approach would require: (1) that all bills containing tax provisions that do not designate the funds raised for use by a specified government program implicate the Origination Clause, and (2) that the Senate may amend House-originated revenue bills without limit. The former is contrary to the best reading of governing law, which does not support application of the Origination Clause to legislation like the ACA. The latter may be contrary to congressional practice or, relatedly, be perceived as judicial endorsement of treating the Origination Clause as empty formalism. The panel found no reason to tread on such infirm ground. The dissent disagrees, and in doing so occasions this response.
The dissent misreads the Supreme Court's Origination Clause precedent. The novel approach proposed by the dissent—exempting bills that levy taxes from the Origination Clause where they designate the funds for exclusive use by a particular government program—is also flawed for a number of other reasons. Textually, the dissent asserts that the Origination Clause “unmistakably embraces all bills that are intended to raise revenue.” Dissent at 1055. The dissent provides no satisfying explanation why bills that raise revenue designated for expenditure only on specified programs—and only such bills—are outside the Clause, nor how the Clause's text forecloses the panel's interpretation. See Dissent at 1055, 1057–59. The dissent's analysis of congressional practice suffers from the same defect. The House of Representatives has at times interpreted the Clause more broadly than does the Supreme Court, the panel, or the dissent, and it retains the prerogative to do so. The dissent's discussion of the history of the Constitution's ratification as relevant to the Origination Clause analysis omits essential context that undercuts the dissent's conclusions. See Dissent at 1055–57, 1061–62. We take up the dissent's principal concerns below.
I.
The panel opinion rests, as it must, on binding Supreme Court precedent. The Supreme Court has never found an Origination Clause violation. And, in three separate cases spanning more than a century, it held that the variable controlling whether a statutory provision falls within the ambit of the Origination Clause is whether raising revenue for the general Treasury is that provision's primary purpose. See United States v. Munoz–Flores, 495 U.S. 385, 399, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990) ; see also Twin City Nat'l Bank v. Nebeker, 167 U.S. 196, 203, 17 S.Ct. 766, 42 L.Ed. 134 (1897) ; Millard v. Roberts, 202 U.S. 429, 436–37, 26 S.Ct. 674, 50 L.Ed. 1090 (1906). The panel opinion rests on the purposive reading adopted and applied by the Supreme Court in these three cases.
A.
Munoz–Flores, the Supreme Court's most recent pronouncement on the Origination Clause, restated that “a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support Government generally, is not a Bill for raising Revenue within the meaning of the Origination Clause.” 495 U.S. at 398, 110 S.Ct. 1964 (internal quotation marks and brackets omitted).
The dissent quotes that language, but then adds a new and different test by which a statute could escape the requirements of the Origination Clause only if it raises funds “designated for use in a specific program,” and does not “raise revenues paid into the general treasury and available for general governmental use[ ].” Dissent at 1057. The Court in Munoz–Flores, however, described and followed Nebeker 's holding that “a bill creating a discrete governmental program and providing sources for its financial support is not a revenue bill simply because it creates revenue.” 495 U.S. at 400, 110 S.Ct. 1964. The Court could have been talking about the ACA.
The dissent nonetheless argues that this court should convene en banc to announce that the holdings in Munoz–Flores, Millard , and Nebeker are narrower than the purposive test expressly employed by the Supreme Court. Those cases, the dissent contends, establish only a very limited exception to the Origination Clause for taxes designated exclusively for use by a specific program or service. Dissent at 1057–59. That argument relies on a faulty premise. The cases considered by the Supreme Court involved revenue-generating measures that supported identified government programs or services but that were not designated by law for exclusive use by the particular program or service, and in any event none of them was resolved on the grounds proposed by the dissent.
Munoz–Flores concerned a challenge to a law imposing a “special assessment” on any person convicted of a federal misdemeanor, with the proceeds up to a threshold amount deposited into a Crime Victims Fund, and any surplus beyond the threshold deposited into the general fund. 495 U.S. at 398–99, 110 S.Ct. 1964. The dissent observes that “[t]he Court first swept [the general fund spillover] scenario aside as one that would rarely occur in practice.” Dissent at 1059. The Munoz–Flores Court did sweep that scenario aside, though it could do so only because it was engaged in an interpretation of the law's “primary purpose” rather than because assessments paid would never go into general revenue. 495 U.S. at 399, 110 S.Ct. 1964 ; see also Minor and Technical Criminal Law Amendments Act of 1988, Pub.L. No. 100–690 § 7121, 102 Stat. 4419, 4422 (1988) (codified at 42 U.S.C. 10601(c)(1)(A) (1988) ) (stating that if the Crime Victims Fund hits a specified ceiling in deposits in any given year, the excess “shall be deposited in the general fund of the Treasury.”). In fact, Munoz–Flores expressly acknowledged that some of the law's proceeds already had gone to general revenue. 495 U.S. at 399, 110 S.Ct. 1964. The case cannot support the dissent's bright-line test.1
Nebeker involved three bank taxes in Section 41 of the National Bank Act of 1864, ch. 106, 13 Stat. 99, 111 (1864), that allegedly originated in the Senate. Nebeker,
167 U.S. at 202–03, 17 S.Ct. 766. The...
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