799 F.3d 1035 (D.C. Cir. 2015), 13-5202, Sissel v. United States Department o Health & Human Services

Docket Nº:13-5202
Citation:799 F.3d 1035
Party Name:MATT SISSEL, APPELLANT v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES
Attorney:For Matt Sissel, Plaintiff - Appellant: Theodore Hadzi-Antich, Paul James Beard II, Attorney, Timothy Mason Sandefur, Pacific Legal Foundation, Sacramento, CA. For United States Department of Health and Human Services, Sylvia Mathews Burwell, in her official capacity as United States Secretary of...
Judge Panel:Before: GARLAND, Chief Judge; HENDERSON[*], ROGERS, TATEL, BROWN[*], GRIFFITH[*], KAVANAUGH[*], SRINIVASAN, MILLETT, PILLARD and WILKINS, Circuit Judges. ROGERS, PILLARD, AND WILKINS, Circuit Judges, concurring in the denial of rehearing en banc. KAVANAUGH, Circuit Judge, with whom Circuit Judges...
Case Date:August 07, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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799 F.3d 1035 (D.C. Cir. 2015)

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

August 7, 2015

Appeal from the United States District Court for the District of Columbia. (No. 1:10-cv-01263).

For Matt Sissel, Plaintiff - Appellant: Theodore Hadzi-Antich, Paul James Beard II, Attorney, Timothy Mason Sandefur, Pacific Legal Foundation, Sacramento, CA.

For United States Department of Health and Human Services, Sylvia Mathews Burwell, in her official capacity as United States Secretary of Health and Human Services, United States Department of the Treasury, Jacob J. Lew, in his official capacity as United States Secretary of the Treasury, Defendant - Appellees: Alisa B. Klein, Attorney, Mark B. Stern, Attorney, Beth S. Brinkmann, Esquire, DOJ Appellate Counsel, U.S. Department of Justice, (DOJ) Civil Division, Appellate Staff, Washington, DC; Stuart F. Delery, Ronald C. Machen Jr., Esquire, U.S. Attorney, U.S. Department of Justice, (DOJ) Civil Division, Washington, DC.

For Center for Constitutional Jurisprudence, Amicus Curiae for Appellant: Anthony T. Caso, John C. Eastman, Center for Constitutional Jurisprudence, c/o Chapman University School of Law, One University Drive, Orange, CA.

For Trent Franks Joseph, John Fleming, Robert Pittenger, Randy K. Weber, Sr., Stevan Pearce, Doug LaMalfa, Doug Lamborn, Mark Sanford, Joe Barton, Jeff Duncan, Louie Gohmert, Marsha Blackburn, Michele Bachmann, Matt Salmon, Kerry L. Bentivolio, James F. Bridenstine, Morris J. Brooks, Jr., K. Michael Conaway, Steven J. Chabot, John J. Duncan, Jr., Robert Brian Gibbs, Andrew P. Harris, Timothy Alan Huelskamp, Walter B. Jones, Jr., Steven Arnold King, Mark Randall Meadows, Robert Randolph Neugebauer, David P. Roe, Theodore Edward Rokita, Marlin Andrew Stutzman, Lee Raymond Terry, Timothy Lee Walberg, Brad Robert Wenstrup, Leon Acton Westmoreland, Robert Joseph Wittman, Theodore Scott Yoho, Thomas Massie, David Schweikert, Bill Posey, Mark Latta, Markwayne Mullin, Ronald Dion DeSantis, James Daniel Jordan, Amicus Curiae for Appellants Amicus Curiae for Appellants: Joseph Edward Schmitz, Attorney, Joseph E. Schmitz, PLLC, Bethesda, MD; Paul Douglas Kamenar, Attorney, Law Office of Paul Kamener, Washington, DC.

For Association of American Physicians and Surgeons, Amicus Curiae for Appellant: Lawrence J. Joseph, Attorney, Law Office of Lawrence J. Joseph, Washington, DC.

For Kevin O. McCarthy, House Majority Leader, Stephen Joseph Scalise, House Majority Whip, Judicial Education Project, Movant-Amicus Curiae for Appellants: Gregory George Katsas, Jones Day, Washington, DC; James M. Burnham, Jones Day, Chicago, IL.

For John Cornyn, Ted Cruz, Movant-Amicus Curiae for Appellants: Erik Scott Jaffe, Law Office of Erik S. Jaffe, Washington, DC; Lawrence J. Joseph, Attorney, Law Office of Lawrence J. Joseph, Washington, DC.

For State of Texas, Movant-Amicus Curiae for Appellant: Gregory George Katsas, Jones Day, Washington, DC; Jonathan Franklin Mitchell, Andrew Stephen Oldham, Deputy General Counsel, Office of the Attorney General, State of Texas, Austin, TX.

For State of Alabama, Movant-Amicus Curiae for Appellant: Luther J. Strange III, Office of the Attorney General, State of Alabama, Montgomery, AL.

For State of Alaska, State of Arizona, State of Colorado, State of Florida, State of Georgia, State of Kansas, State of South Dakota, State of West Virginia, Movant-Amicus Curiae for Appellants: Andrew Stephen Oldham, Deputy General Counsel, Office of the Attorney General, State of Texas, Austin, TX.

For State of Idaho Movant-Amicus Curiae for Appellant: Lawrence G. Wasden, Office of the Attorney General, State of Idaho, Natural Resources Division, Boise, ID.

For State of Nebraska, Movant-Amicus Curiae for Appellant: Jon Cumberland Bruning, Office of the Attorney General, State of Nebraska, Lincoln, NE.

For State of South Carolina, Movant-Amicus Curiae for Appellant: Gregory Wayne Abbott, Jonathan Franklin Mitchell, Office of the Attorney General, Andrew Stephen Oldham, Deputy General Counsel, State of Texas, Austin, TX.

Before: GARLAND, Chief Judge; HENDERSON[*], ROGERS, TATEL, BROWN[*], GRIFFITH[*], KAVANAUGH[*], SRINIVASAN, MILLETT, PILLARD and WILKINS, Circuit Judges. ROGERS, PILLARD, AND WILKINS, Circuit Judges, concurring in the denial of rehearing en banc. KAVANAUGH, Circuit Judge, with whom Circuit Judges HENDERSON, BROWN, and GRIFFITH join, dissenting from the denial of rehearing en banc.

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.

CONCUR

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 32. 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, 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

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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 13. 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 13, 17-20. 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 13-16, 25-28. 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 (internal quotation marks and...

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