Texas senators back constitutional O-Care challenge

A pair of Texas Republicans is throwing support behind another constitutional challenge to ObamaCare.

Sens. John CornynJohn CornynKey GOP senators appear cool to Kavanaugh accuser's demand Trump, GOP regain edge in Kavanaugh battle GOP mulls having outside counsel question Kavanaugh, Ford MORE and Ted CruzRafael (Ted) Edward CruzSinger Leon Bridges to join Willie Nelson in performing at O’Rourke rally Election Countdown: Trump confident about midterms in Hill.TV interview | Kavanaugh controversy tests candidates | Sanders, Warren ponder if both can run | Super PACs spending big | Two states open general election voting Friday | Latest Senate polls Poll: Beto O'Rourke leads Cruz by 2 points in Texas Senate race MORE filed a court brief Tuesday arguing that the Affordable Care Act violates the Constitution's Origination Clause because its tax provisions originated in the Senate rather than the House.

That argument is the basis of a lawsuit by a self-employed Iowa man named Matt Sissel that was dismissed by a federal appeals court in July. The senators, who are both lawyers, believe the case qualifies for a rehearing. 

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The D.C. Circuit Court ruled that the law is not subject to the Origination Clause, and therefore, the court "has no occasion to determine whether it originated in the House or the Senate."

But Cornyn and Cruz argue that the Senate bill should be considered a bill to create revenue.

In their 18-page brief, the senators acknowledge that "it may seem odd that sitting Senators would speak out in support of enforcing restrictions on the authority of their own chamber." They said they are trying to hold their colleagues responsible and preserve the Constitution.

There is a mixed legal history on the Origination Clause. The Supreme Court has long argued that not all bills that include taxes are considered "bills for raising revenue."  

The high court has already upheld the law's individual mandate, forcing opponents to ObamaCare to find legal holes in other parts of the law.

Another lawsuit, Halbig vs. Burwell, questions whether the IRS can issue ObamaCare subsidies through federal exchanges. The case will be reheard before the entire bench, instead just of three judges, in December. 

Cornyn and Cruz stressed that importance of the Origination Clause, which they said serves "as a well-needed reminder of the source of government money, hopefully instilling greater thoughtfulness in the Senate and in government as a whole."