Sissel v. United States Department of Health & Human Services , 760 F.3d 1 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2014 Decided July 29, 2014
No. 13-5202
MATT SISSEL,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01263)
Timothy M. Sandefur argued the cause for appellant. With
him on the briefs were Paul J. Beard II and Daniel A.
Himebaugh. Theodore Hadzi-Antich entered an appearance.
John C. Eastman and Anthony T. Caso were on the brief for
amicus curiae Center for Constitutional Jurisprudence in support
of appellant.
Lawrence J. Joseph was on the brief for amicus curiae
Association of American Physicians and Surgeons in support of
appellant.
Joseph E. Schmitz and Paul D. Kamenar were on the brief
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for amici curiae U.S. Representatives Trent Franks, et al. in
support of appellant.
Alisa B. Klein, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Stuart F. Delery, Assistant Attorney General, Ronald C. Machen
Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant
Attorney General, and Mark B. Stern, Attorney.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Section 5000A of the Patient
Protection and Affordable Care Act, 26 U.S.C. § 5000A,
mandates that as of January 2014, non-exempt individuals
maintain minimum health care coverage or, with limited
exceptions, pay a penalty. Matt Sissel, who is an artist and
small-business owner who serves from time to time on active
duty with the National Guard, appeals the dismissal of his
complaint alleging that the mandate violates the Commerce
Clause, U.S. CONST. art. I, § 8, cl. 3, and the Origination Clause,
U.S. CONST. art. I, § 7, cl. 1. We affirm, because his contention
that the mandate obligating him to buy government-approved
health insurance violates the Commerce Clause fails under the
Supreme Court’s interpretation of the mandate in National
Federation of Independent Business v. Sebelius, 132 S. Ct. 2566,
2598 (2012) (“NFIB”), and his contention that the mandate’s
shared responsibility payment was enacted in violation of the
Origination Clause fails under Supreme Court precedent
interpreting that Clause.
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I.
A.
Section 5000A of the Affordable Care Act imposes a
“[r]equirement to maintain minimum essential [health
insurance] coverage.” 26 U.S.C. § 5000A. Subsection (a)
provides that “[a]n applicable individual” — that is, an
individual subject to the requirement — “shall for each month
beginning after 2013 ensure that the individual, and any
dependent of the individual who is an applicable individual, is
covered under minimum essential coverage for such month.” Id.
§ 5000A(a). Subsection (b) provides that if an applicable
individual “fails to meet the requirement of subsection (a),”
there shall be “imposed on the taxpayer a penalty,” id.
§ 5000A(b)(1), denominated the “[s]hared responsibility
payment,” id., which “shall be included with a taxpayer’s
[federal income tax] return,” id. § 5000A(b)(2). These
requirements are subject to several exceptions.
Subsection (d) limits who is an “applicable individual”
subject to the coverage requirement. See id. § 5000A(d)(2)–(4).
The “[r]eligious conscience exemption,” id. § 5000A(d)(2)(A),
exempts from the minimum coverage requirement a “member of
a recognized religious sect” whose beliefs oppose the acceptance
of insurance benefits and an “adherent of established tenets or
teachings of such sect.” See also id. § 1402(g)(1) (criteria for
religious exemption). Also exempt is a “member of a
[qualifying] health care sharing ministry” whose members
“share a common set of ethical or religious beliefs and share
medical expenses among members in accordance with those
beliefs.” Id. § 5000A(d)(2)(B)(i) & (ii)(II). “Individuals not
lawfully present” in the United States, id. § 5000A(d)(3), and
“[i]ncarcerated individuals,” id. § 5000A(d)(4), are likewise
exempt from the insurance purchase requirement.
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Subsection (e) enumerates when “[n]o penalty shall be
imposed” for failure to obtain required health coverage. Id.
§ 5000A(e). Exempt are “[i]ndividuals who cannot afford
coverage,” that is, individuals whose “required contribution
(determined on an annual basis) for coverage for the month
exceeds 8 percent of such individual’s household income for the
taxable year.” Id. § 5000A(e)(1) (emphasis added). The
“required contribution” is the cost of obtaining minimum
essential coverage, either through an employer-sponsored
insurance plan or by purchasing in an insurance exchange “the
lowest cost bronze plan available in the individual market . . .
in which the individual resides.” Id. § 5000A(e)(1)(B). Also
exempt are “[t]axpayers with income below [the] filing
threshold [for federal income taxes],” id. § 5000A(e)(2),
“[m]embers of Indian tribes,” id. § 5000A(e)(3), and individuals
experiencing a “short . . . gap[]” in coverage of less than three
months, id. § 5000A(e)(4). Individuals who “have suffered a
hardship with respect to the capability to obtain coverage under
a qualified health plan,” as determined by the Secretary of
Health and Human Services, are also exempt. Id.
§ 5000A(e)(5).
B.
According to the complaint filed October 11, 2012, Matt
Sissel is an “artist who works out of his studio” in Iowa and
“also works part-time . . . for the National Guard.” First Am.
Compl. (“Compl.”) ¶ 5. “He is financially stable, has an annual
income that requires him to file federal tax returns, and could
afford health insurance if he wanted to obtain such coverage.”
Id. He “does not have, need, or want health insurance.” Id.
Further, “he is able to and does pay for any and all of his
medical expenses out of pocket.” Id. Because “he cannot claim
any of the exemptions,” id. ¶ 15, the Affordable Care “Act
obligates [him] to purchase, at his own expense and against his
will, federally approved health insurance, or pay the ‘shared
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responsibility payment,’” id. Sissel seeks declaratory and
injunctive relief against the mandate and the Affordable Care
Act in toto.
First, Sissel alleges that the Affordable Care Act’s
“purchase requirement,” commonly known as the individual
mandate, “is not a regulation of commerce, but purports to
compel affected Americans, like [himself], to engage in
commerce.” Id. ¶ 34. Citing NFIB, 132 S. Ct. at 2600, where
Chief Justice Roberts stated that “the Commerce Clause does
not authorize such a command,” he alleges that Section 5000A
violates the Commerce Clause. See id. Second, he alleges that
Section 5000A’s “‘shared responsibility payment’ is a tax that
raises revenue to support Government generally,” id. ¶ 39, and
violates the Origination Clause because it “originated in the
Senate, not the House,” id. ¶ 40.
The district court dismissed the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), ruling that Sissel’s
Commerce Clause claim was premised on a misreading of the
NFIB decision, the Origination Clause did not apply because
Section 5000A was not a bill for raising revenue, and, in any
event, it satisfied the Origination Clause because there was a
valid Senate amendment to a bill that originated in the House of
Representatives. See Sissel v. U.S. Dep’t of Health & Human
Servs., 951 F. Supp. 2d 159, 166–74 (D.D.C. 2013). Sissel
appeals, and our review of the dismissal of the complaint is de
novo. See English v. Dist. of Columbia, 717 F.3d 968, 971 (D.C.
Cir. 2013). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The court assumes the truth of all
well-pleaded factual allegations in the complaint and construes
reasonable inferences from those allegations in the plaintiff’s
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favor, see, e.g., Doe v. Rumsfeld, 683 F.3d 390, 391 (D.C. Cir.
2012), but is not required to accept the plaintiff’s legal
conclusions as correct, see id.II.
As a threshold matter, we must determine whether or not
Sissel has standing under Article III of the Constitution in order
to assure ourselves that this court has jurisdiction over his
appeal. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
559–60 (1992); U.S. Telecom Ass’n v. FCC, 295 F.3d 1326,
1330 (D.C. Cir. 2002). Standing must be shown at each stage of
the judicial proceedings. See Hollingsworth v. Perry, 133 S. Ct.
2652, 2661 (2013). The district court concluded Sissel had
standing because he claimed to have had to sell property and
curtail his professional activities in order to raise funds to pay
for the required health insurance coverage. See Sissel, 951 F.
Supp. 2d at 164 n.7. Sissel’s complaint, however, does not
demonstrate that as of the time of his appeal, he would be
subject to the Affordable Care Act’s individual mandate and
shared responsibility payment. Although he alleged that in
January 2008 he left the National Guard where he did have
health insurance during his active service, see Compl. ¶ 24, his
counsel advised during oral argument before this court that
Sissel was currently on active duty with the National Guard. See
Oral Arg. Tr. 5:14–17 (May 8, 2014). It also was unclear from
the complaint whether the circumstances relating to Sissel’s
annual income and relied on by the district court had changed.
See id. at 7:8–20.
Upon review of the requested supplementation, see Order
(May 22, 2014), we hold that Sissel has Article III standing. By
signed affidavit, Sissel attests that he does not fall within any of
the exemptions under the Affordable Care Act, 26 U.S.C.
§ 5000A(d)(2)–(4), (e)(3). For example, he avers that he has no
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religious objection to purchasing health insurance, he is not a
member of an Indian tribe, he is not incarcerated, and he has not
been determined ineligible for Medicaid or had an individual
insurance plan cancelled. See Sissel Aff. ¶¶ 3–13 (June 2,
2014); 26 U.S.C. § 5000A(d)(2) & (4), (e)(3) & (5).
Additionally, he avers that as of June 2, 2014, he was no longer
on active duty with the National Guard, and that he has not
purchased health insurance through the National Guard, and is
not eligible for any kind of insurance coverage or continuing
care through the National Guard. See Sissel Aff. ¶¶ 14–15.
According to Sissel, the National Guard would provide
emergency care for any injuries or illnesses he might suffer
while on active duty, but the Guard has no such “limited
medical-emergency” obligation when he is not on active duty.
Id. ¶ 15.
Sissel’s counsel has further attested that based on available
information from the “Washington Healthplanfinder” website,
the cost of the least expensive qualifying health plan in the
region of the country where Sissel now lives is less than 8
percent of Sissel’s projected 2014 income. See Sandefur Aff.
¶ 2 (June 2, 2014), Ex. A; Sissel Aff. ¶ 10. In his complaint and
affidavit, Sissel states that the two sources of his annual income
are his work as an artist and his part-time service as a Public
Affairs Specialist for the National Guard. See Compl. ¶ 5; Sissel
Aff. ¶ 10. Consequently, Sissel maintains he does not qualify
for a low-income exemption under the Affordable Care Act, 26
U.S.C. § 5000A(e)(1)(a). See Appellant’s Supp. Br. 3–4.
Taking these factual representations as true, as we must for
purposes of Article III standing, see Defenders of Wildlife, 504
U.S. at 561, and absent any basis to question Sissel’s view of the
legal obligation of the National Guard with respect to health care
coverage, it appears certain that Sissel is subject to the Section
5000A mandate requiring him to purchase minimum essential
8
health insurance coverage or else to pay the shared
responsibility payment. The government does not challenge the
affiants’ representations or otherwise claim that Sissel lacks
Article III standing. See Appellees’ Supp. Br. 1. Even though
Sissel is still a member of the National Guard and from time to
time may be called to active duty, providing him temporary
health insurance coverage by the Guard, the government has not
suggested this circumstance would render exempt an individual
otherwise subject to the requirements of Section 5000A, and we
agree. Congress has included limited, specific exemptions from
Section 5000A, and, absent reason to conclude otherwise,
exemptions are to be construed narrowly. See, e.g., A.H.
Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945). This court
is aware of no countervailing considerations inasmuch as the
Affordable Care Act seeks “to increase the number of
Americans covered by health insurance and decrease the cost of
health care.” NFIB, 132 S. Ct. at 2580. We therefore turn to the
merits of Sissel’s complaint.
III.
The Constitution authorizes the Congress to “regulate
Commerce . . . among the several States,” U.S. CONST. art. I,
§ 8, cl. 3, and to “make all Laws which shall be necessary and
proper for carrying into Execution” that authority, id. art. I, § 8,
cl. 18. In NFIB, several States and private parties challenged the
Section 5000A individual mandate on the ground, among others,
that the Commerce Clause did not empower Congress to require
individuals to purchase health insurance. See State Resp’ts Br.
on Minimum Coverage Provision 15–51; Private Resp’ts Br. on
Individual Mandate 15–62, in U.S. Dep’t of Health & Human
Servs. v. Florida, No. 11-398, decided sub. nom. NFIB, 132 S.
Ct. 2566. Five Justices would have held that if the individual
mandate commanded individuals to purchase insurance, then its
enactment would have exceeded Congress’s authority under the
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Commerce Clause, U.S. CONST. art. I, § 8, cl. 3; see NFIB, 132
S. Ct. at 2593 (separate opinion of Roberts, C.J.), 2650 (Scalia,
Kennedy, Thomas, and Alito, JJ., dissenting), but the Court
understood that Section 5000A gives individuals the choice of
purchasing insurance or paying a tax, and sustained it as a valid
exercise of Congress’s taxing power, U.S. CONST. art. I,
§ 8, cl.1; see NFIB, 132 S. Ct. at 2598.
Sissel seeks to “enjoin[] the government from enforcing the
individual mandate against him,” Reply Br. 3, because “the
Commerce Clause does not authorize Congress to impose” the
mandate, Appellant’s Br. 6. He maintains that in NFIB the
Supreme Court “did not sustain the individual mandate under
the taxing power.” Id. at 7. “[I]ndeed,” he suggests, “the
Supreme Court did not sustain the individual mandate at all.”
Id. In Sissel’s view, “[t]he NFIB opinion makes an essential
constitutional distinction between the individual mandate —
which compels people to buy health insurance — and the shared
responsibility payment — which imposes a tax on people who
choose not to purchase health insurance,” and he maintains that
only the latter was upheld by the Court. Id. at 7, 10. Unless this
court declares the individual mandate invalid, he contends the
mandate will “render[] [him] a violator of federal law if he fails
to buy the prescribed insurance.” Id. at 12.
Sissel’s Commerce Clause claim rests on a flawed
understanding of the Supreme Court’s decision in NFIB. See
Appellees’ Br. 7–8. In NFIB, the government “ask[ed] [the
Court] to read the mandate not as ordering individuals to buy
insurance, but rather as imposing a tax on those who do not buy
that product.” NFIB, 132 S. Ct. at 2593 (emphasis added); see
also id. at 2584 (separate opinion of Roberts, C.J.). Although
Chief Justice Roberts stated that “[t]he most straightforward
reading of the mandate is that it commands individuals to
purchase insurance,” id., he concluded, in an opinion joined by
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four other Justices, that “it need not be read to declare that
failing to [purchase insurance] is unlawful,” id. at 2597 (opinion
of Roberts, C.J., joined by Ginsburg, Breyer, Sotomayor, and
Kagan, JJ.) (emphasis added). Rather, the Court held that
Section 5000A can be read to do nothing “more than impose a
tax,” and “[t]hat is sufficient to sustain it” under the
Constitution. Id. at 2598.
Sissel’s contention that the individual mandate “compels
[him] to buy health insurance,” Appellant’s Br. 7, is thus
foreclosed under the Supreme Court’s interpretation of the
mandate; in the Court’s opinion, the mandate provision “leaves
[Sissel] with a lawful choice” to purchase health insurance or
not, “so long as he is willing to pay a tax levied on that choice,”
NFIB, 132 S. Ct. at 2600. Although the Chief Justice stated that
the individual mandate “would . . . be unconstitutional if read as
a command,” he concluded that it is not unconstitutional as
beyond the scope of Congressional authority because it “can
reasonably be read” as not imposing a command. Id. at 2601(separate opinion of Roberts, C.J.) (emphasis added). The
Court’s decision to sustain the constitutionality of the whole of
Section 5000A under the taxing power necessarily disposes of
Sissel’s Commerce Clause claim. His reliance on later opinions
in the circuits is misplaced as none denies that the Supreme
Court upheld the individual mandate as a valid exercise of the
taxing power. See Liberty Univ., Inc. v. Lew, 733 F.3d 72, 97
(4th Cir. 2013); United States v. Rose, 714 F.3d 362, 371 (6th
Cir. 2013); United States v. Roszkowski, 700 F.3d 50, 58 (1st
Cir. 2012).
IV.
The Origination Clause, U.S. CONST. art. I, § 7, cl. 1, states
that “[a]ll Bills for raising Revenue shall originate in the House
of Representatives; but the Senate may propose or concur with
11
Amendments as on other Bills.” Sissel contends that “the shared
responsibility payment is a bill for raising revenue” and that it
“originated in the Senate, not the House” in violation of the
Origination Clause. Appellant’s Br. 20. He states in his
complaint that “[i]n September, 2009, the House [of
Representatives] passed H.R. 3590, entitled the ‘Service
Members Home Ownership Tax Act of 2009,’” to “‘amend[] the
Internal Revenue Code of 1986 to modify [the] first-time
homebuyers credit in the case of members of the Armed Forces
and certain other Federal employees.’” Compl. ¶ 40. He alleges
this bill “had nothing to do with health insurance reform,” and
yet “[i]n November of [2009], the Senate purported to ‘amend’
the House bill by gutting its contents, replacing them with
health-insurance reforms (including the purchase requirement
and associated payment), and renaming the bill the ‘Patient
Protection and Affordable Care Act.’” Id. The “substitute
legislation,” he alleges, was “a revenue-raising tax bill,” id., and
the enactment of the Act violated the Origination Clause
“[b]ecause the tax originated in the Senate, and not in the
House,” id. ¶ 41. Because we conclude that the shared
responsibility payment in Section 5000A is not a “Bill[] for
raising Revenue” within the Supreme Court’s accepted meaning
of that phrase, and thus was not subject to the Origination
Clause, this court has no occasion to determine whether it
originated in the House or the Senate.
In interpreting the Origination Clause, the Supreme Court
has held from the early days of this Nation that “revenue bills
are those that levy taxes in the strict sense of the word, and are
not bills for other purposes which may incidentally create
revenue.” Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897)
(citing 1 J. STORY, COMMENTARIES ON THE CONSTITUTION
§ 880). The Court has adhered to this “strict” interpretation.
See United States v. Munoz-Flores, 495 U.S. 385, 397 (1990);
Millard v. Roberts, 202 U.S. 429, 436 (1906); United States v.
12
Norton, 91 U.S. 566, 569 (1875). Necessarily, this court has
followed suit. See Rural Cellular Ass’n v. FCC, 685 F.3d 1083,
1090 (D.C. Cir. 2012). Under this “strict” interpretation, the
Supreme Court has upheld as not subject to the Origination
Clause a tax on circulating bank notes, see Nebeker, 167 U.S. at
202, a tax to fund railway construction in the District of
Columbia, see Millard, 202 U.S. at 436–37, and a “special
assessment” levied on federal criminal offenders for a victims’
fund, see Munoz-Flores, 495 U.S. at 401. In each case,
consistent with its “strict” interpretation of the phrase “Bills for
raising Revenue,” the Court’s analysis focused on the purpose
of the challenged measure: Because the revenue raised was
merely incidental to the main object or aim of the challenged
measure, the requirements of the Origination Clause were held
not to apply. In Nebeker, for example, the issue was whether “a
tax upon the average amount of the notes of a national banking
association in circulation[] was a revenue bill within the
[Origination] [C]lause.” 167 U.S. at 202. The Court observed
that “[t]he main purpose that Congress had in view was to
provide a national currency based upon United States bonds, and
to that end it was deemed wise to impose the tax in question.”
Id. at 203 (emphasis added). Similarly, in Millard, involving the
use of property taxes to fund railway construction in the District
of Columbia, the Court reasoned that “[w]hatever taxes are
imposed are but means to the purposes provided by the act.”
202 U.S. at 437 (emphasis added). And in Munoz-Flores, the
Court noted that “[a]ny revenue for the general Treasury that
[the provision imposing a special assessment on defendants]
creates is . . . ‘incidental’ to that provision’s primary purpose,”
which was to provide money for a crime victims’ fund. 495
U.S. at 399 (emphasis added; alterations omitted). In each
instance, the Court underscored that unless a bill is aimed at
“levy[ing] taxes in the strict sense,” it does not fall within the
limited scope of the Origination Clause. Munoz-Flores, 495
U.S. at 397; Millard, 202 U.S. at 436; Nebeker, 167 U.S. at 202.
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The purposive approach embodied in Supreme Court
precedent necessarily leads to the conclusion that Section 5000A
of the Affordable Care Act is not a “Bill[] for raising Revenue”
under the Origination Clause. The Supreme Court’s repeated
focus on the statutory provision’s “object,” Nebeker, 167 U.S.
at 203, and “primary purpose,” Munoz-Flores, 495 U.S. at 399,
makes clear, contrary to Sissel’s position, that the purpose of a
bill is critical to the Origination Clause inquiry. And after the
Supreme Court’s decision in NFIB, it is beyond dispute that the
paramount aim of the Affordable Care Act is “to increase the
number of Americans covered by health insurance and decrease
the cost of health care,” NFIB, 132 S. Ct. at 2580, not to raise
revenue by means of the shared responsibility payment. The
Supreme Court explained: “Although the [Section 5000A]
payment will raise considerable revenue, it is plainly designed
to expand health insurance coverage.” Id. at 2596 (emphasis
added); see id. at 2596–97. This court noted in Seven-Sky v.
Holder, 661 F.3d 1, 6 (D.C. Cir. 2012), abrogated by NFIB, 132
S. Ct. 2566 (2012), that the “congressional findings never
suggested that Congress’s purpose was to raise revenue.” See
42 U.S.C. § 18091(2) (congressional findings). To the contrary,
“the aim of the shared responsibility payment is to encourage
everyone to purchase insurance; the goal is universal coverage,
not revenues from penalties.” Seven-Sky, 661 F.3d at 6. The
Supreme Court acknowledged that the Section 5000A shared
responsibility payment may ultimately generate substantial
revenues — potentially $4 billion in annual income for the
government by 2017, see NFIB, 132 S. Ct. at 2594 — if people
do not “sign up” for coverage, but those revenues are a by-
product of the Affordable Care Act’s primary aim to induce
participation in health insurance plans. Successful operation of
the Act would mean less revenue from Section 5000A payments,
not more.
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Sissel contends, however, that the Supreme Court cases
rejecting Origination Clause challenges merely embody “two
exceptions” to the general “presumpt[ion]” that “[a]ll taxes” are
subject to the Clause. Appellant’s Br. 14; Reply Br. 6–7. He
maintains that the Affordable Care Act does not fall within
either exception because the Section 5000A payment neither
funds a particular governmental program, as was true in Munoz-
Flores, 495 U.S. at 397–98, nor enforces compliance with a
statute passed under some other (non-taxing) constitutional
power, as in Millard, 202 U.S. at 433. Yet even assuming Sissel
is correct that the precedent can be classified in one or both of
his categories, neither the Supreme Court nor this court has held
that a statute must be so classifiable to avoid the requirements of
the Origination Clause. All Sissel has demonstrated is that the
Affordable Care Act’s mandate does not fall squarely within the
fact patterns of prior unsuccessful Origination Clause
challenges, not that his challenge should succeed.
Sissel’s interpretation of the taxing power also fails to
adhere to Supreme Court precedent. In emphasizing that in
NFIB the Court upheld Section 5000A solely as an exercise of
Congress’s taxing power, see NFIB, 132 S. Ct. at 2600, Sissel
contends that the Section 5000A tax is presumptively subject to
the Origination Clause because it “serves no constitutional
purpose other than to raise revenue pursuant to Congress’s
taxing power.” Reply Br. 7. This implicitly assumes that all
exercises of the taxing power are necessarily aimed at raising
revenue. In fact, “the taxing power is often, very often, applied
for other purposes[] than revenue.” 2 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 962, p. 434 (1833), cited in NFIB, 132 S. Ct. at 2596. In
United States v. Sanchez, 340 U.S. 42 (1950), the Supreme
Court stated:
It is beyond serious question that a tax does not cease
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to be valid [under the taxing power] merely because it
regulates, discourages, or even definitely deters the
activities taxed. The principle applies even though the
revenue obtained is obviously negligible, or the
revenue purpose of the tax may be secondary. Nor
does a tax statute necessarily fall because it touches on
activities which Congress might not otherwise regulate.
Id. at 44 (emphasis added; citations omitted). That view was
reiterated in United States v. Kahriger, 345 U.S. 22 (1953),
where the Court upheld “a tax on persons engaged in the
business of accepting wagers,” id. at 23, notwithstanding the
argument that “the sole purpose of the statute is to penalize . . .
illegal gambling in the states through the guise of a tax
measure,” id. at 28, abrogated on other grounds by Marchetti v.
United States, 390 U.S. 39 (1968). Because not all of
Congress’s exercises of the taxing power are primarily aimed at
raising revenue, and a measure is a “Bill[] for raising Revenue”
only if its primary purpose is to raise general revenues, some
exercises of the taxing power are not subject to the Origination
Clause. The Supreme Court’s decisions in Nebeker and Millard
confirm this point: Not all “taxes” are “Bills for raising
Revenue.” See Nebeker, 167 U.S. at 202; Millard, 202 U.S. at436–37.
Sissel’s attempts to distinguish the Supreme Court’s “tax”
cases confirm that the Origination Clause inquiry does not hinge
on the existence (or absence) of another source of constitutional
authority. For instance, Sissel contends that the tax on
circulating notes in Nebeker was not a “Bill[] for raising
Revenue” because, among other things, it was enacted “in
furtherance of Congress’s Article I power to coin money.”
Reply Br. 6; see U.S. CONST. art I, § 8, cl. 5. But many taxes are
imposed to raise revenue in furtherance of the federal
government’s enumerated powers, and some of those taxes may
16
well be “Bills for raising Revenue.” The mere existence of
another source of Congressional power, then, cannot be what
insulates a measure from the Origination Clause. Conversely,
a measure that would not be a “Bill[] for raising Revenue” does
not become one simply because Congress lacks an independent
basis (apart from the taxing power) to enact it. For example,
Sissel contends that the tax to finance railroad projects in
Millard was not a “Bill[] for raising Revenue” because, among
other things, Congress possessed exclusive constitutional
jurisdiction over the District of Columbia. Reply Br. 7; see U.S.
CONST. art. I, § 8, cl. 17. Yet nothing in Millard hints that
Congress’s authority over the District of Columbia affected the
Origination Clause inquiry in that case. See Millard, 202 U.S.
at 436–37.
In sum, under Supreme Court precedent, the presence of
another constitutional power does not suggest that a provision is
not a “Bill[] for raising Revenue,” and the absence of another
constitutional power does not, in itself, suggest that it is.
Because the existence of another power is not necessary (or
sufficient) to exempt a bill from the Origination Clause, the
mere fact that Section 5000A may have been enacted solely
pursuant to Congress’s taxing power does not compel the
conclusion that the entire Affordable Care Act is a “Bill[] for
raising Revenue” subject to the Origination Clause. Where, as
here, the Supreme Court has concluded that a provision’s
revenue-raising function is incidental to its primary purpose, see
NFIB, 132 S. Ct. at 2596, the Origination Clause does not apply.
The analysis is not altered by the fact that the shared
responsibility payment may in fact generate substantial
revenues. In light of the Supreme Court’s historical
commitment to a narrow construction of the Origination Clause,
this court can only hold that the challenged measure — whose
primary purpose “plainly” was not to raise revenue, id. at 2596
— falls outside the scope of the Clause.
17
Accordingly, we affirm the dismissal of the complaint for
failure to state a cause of action.