海角大神

With tax day and IRS forms fresh in their minds, most Americans might think the US tax system couldn鈥檛 get any more daunting.

But next year, some new complexity kicks in.

One of the hotly debated features of the Patient Protection and Affordable Care Act (or 鈥淥bamacare鈥�) takes effect in 2014. Under the law鈥檚 鈥渋ndividual mandate,鈥� nearly everyone who isn鈥檛 covered by an employer will have to buy health insurance or pay a penalty.聽This penalty was officially labeled a 鈥渢ax鈥� by the Supreme Court, or at least by five of the justices, in its decision on Obamacare last June.

The Obama administration, however, never argued that the individual mandate is an exercise of Congress鈥檚 taxing authority. And as recently as October, in an with Rolling Stone magazine, President Obama avoided the 鈥渢ax鈥� justification, and still insisted that the individual mandate is a regulatory action authorized by the Commerce Clause.

Just what Americans need: more confusion and ambiguity in their tax law.聽

By calling the mandate to buy insurance a 鈥渢ax,鈥� the court did more than trigger new debates about semantics. It created a potentially fatal constitutional glitch in the law.

Article I, Section 7 of the Constitution says that tax bills 鈥� 鈥渁ll bills for raising revenue鈥� 鈥� must 鈥渙riginate in the House of Representatives.鈥� The framers wrote this 鈥淥rigination Clause鈥� because they recognized the potential danger in the taxing power, and they wanted to keep it as close as possible to voters. So they entrusted it to members of the House, who are elected every two years and have smaller constituencies than senators, who represent whole states and serve staggered six-year terms.

But Obamacare didn鈥檛 follow the constitutional script. Instead of originating in the lower chamber, it started in the Senate, when Majority Leader Harry Reid took an old bill the House had passed that would have given veterans tax credits to buy homes, struck out all of that bill鈥檚 language, and inserted instead the confusing web of provisions that became the Affordable Care Act.

Was this 鈥済ut and amend鈥� ploy valid?

That question is now in front of US District Judge Beryl Howell in Washington, D.C., in a challenge to Obamacare filed on behalf of Matt Sissel, an Iowa small business owner who was decorated for service as a medic in the Iraq war.

Obamacare was passed hastily, by lawmakers who admitted they had not read the bill. The legislation was passed during the holiday season, through questionable procedural tricks. It was never popular, and a recent found that only 36 percent of Americans currently support the law. Even the Supreme Court鈥檚 liberal wing agreed that large parts of it were unconstitutional. In part of last June鈥檚 decision, Justices Stephen Breyer and Elena Kagan joined the conservatives to hold that Congress had illegally tried to force states to expand their Medicaid rolls.

These are all good reasons not to give a reflexive pass to the law鈥檚 most controversial aspects 鈥� including the way it was enacted.

The Supreme Court has never addressed whether the Senate can evade the Origination Clause by hollowing out a House bill and substituting its own tax. 鈥淚f any act violates the Origination Clause, it would seem to be the Affordable Care Act,鈥� Randy Barnett, a Georgetown University Law School professor and leading constitutional critic of Obamacare, .

The Constitution鈥檚 procedural guidelines might seem like dry formalities. But such procedures were designed to safeguard the rights of the American people. And if last June鈥檚 Supreme Court decision is not to become a precedent for Congress to impose any variety of mandates on Americans under the taxing power, courts should take care to enforce democratic controls over that power.

Timothy Sandefur is a principal attorney with , a public-interest legal organization that litigates for limited government, individual rights, and free enterprise. He represents small business owner Matt Sissel in challenging the constitutionality of the Affordable Care Act鈥檚 individual mandate 鈥渢ax.鈥�