pose” is the collection of revenue.
23 As noted by the Texas court, the ACA
is not such a bill because it is “plainly designed to expand health insurance
24 The lower courts also point out that although the Senate largely replaced the House bill with its own ACA language, the plaintiffs failed
to explain how the bill, introduced as House of Representatives Bill Number 3590, originated in the Senate. These cases accordingly conclude that
the Origination Clause has no “germaneness” requirement.
Another set of cases challenge IRS regulations that implement the
ACA’s premium subsidies nationwide in an attempt to undermine the entire
framework of the Act’s implementation.
26 The ACA makes insurance affordable for limited-income individuals by offering them premium tax subsidies,
27 and it establishes American Health Benefit Exchanges (or Marketplaces) in each state through which individuals can obtain this coverage.
The ACA gives states the option to establish a state-run Exchange, a partnership Exchange with the federal government, or to refuse to create an Exchange, in which case the federal government will operate the Exchange.
Litigants in the District of Columbia,
32 and Virginia33 cite a seven-word phrase in an ACA subsection to argue that premium subsidies are available only “through an Exchange established by the
34 Under this argument, individuals would not have access to premium subsidies (and almost certainly would not be able to afford health insurance) if they live in a state where the federal government is operating the
Exchange. As part of the “ObamaCare” backlash, thirty-four states (
representing about seventy-five percent of the people nationwide who qualify for
35 are using a federally facilitated Exchange.
36 Clearly, if
23. See Sissel, 951 F. Supp. 2d at 167-68; Hotze, 2014 WL 109407, at 9.
24. Hotze, 2014 WL 109407, at 10 (quoting NFIB, 132 S. Ct. at 2596).
25. See Sissel, 951 F. Supp. 2d at 173; Hotze, 2014 WL 109407, at 11.
26. See 26 C.F.R. § 1.36B-1(k) (West, WestlawNext through May 22, 2014; 79 Fed.
Reg. 29,379) (referring to 45 C.F.R. § 155.20), Health Insurance Premium Tax Credits; 77
Fed. Reg. 30,377 (May 23, 2012) (to be codified at 26 CFR Parts 1 and 602).
27. See generally
42 U.S. C. A. §§ 18081-18082 (West, WestlawNext through Pub. L.
No. 113-93 (excluding Pub. L. No. 113-79) approved Apr. 1, 2014); see also 26 U.S. C. A. §
36B (setting forth how tax credit is determined).
42 U.S. C. A. §§ 18031(b), 300gg- 91(d)( 21).
29. 42 U.S. C. A. §§ 18031(b)( 1), 18041(c)( 1).
30. Halbig v. Sebelius, No. 13-623 (PLF), 2014 WL 129023 ( D. D. C. Jan. 15, 2014).
31. Complaint for Declaratory and Injunctive Relief and Judicial Estoppel, Ind. v. IRS,
No. 1:13-cv-1612 (S. D. Ind. Oct. 8, 2013), ECF No. 1.
32. Amended Compliant for Declaratory and Injunctive Relief, Okla. ex rel. Pruitt v.
Sebelius, No. 6:11-cv-030 (E. D. Okla. Sept. 19, 2012), ECF No. 35.
33. King v. Sebelius, No. 3:13–CV–630, 2014 WL 637365 (E. D. Va. Feb. 18, 2014).
26 U.S. C. A. § 36B(b)( 2)( A) (emphasis added).
35. Barack Obama, President of the United States, Speech to Congress (Sept. 9, 2009),
in White House, Remarks by the President to a Joint Session of Congress on Health Care
(Sept. 9, 2009, 8: 16 PM), http://www.whitehouse.gov/the_press_office/Remarks-by-the-