The foundation, which advocates for limited government, is scheduled to make oral arguments Thursday in the U.S. Court of Appeals for the District of Columbia. A district court ruled last year against the foundation, which filed the case on behalf of Iraq war veteran and Washington state small business owner Matt Sissel.
Foundation attorney Timothy Sandefur said during a news conference Monday that the Affordable Care Act should be considered unconstitutional because it violated the Constitution's origination clause, which requires tax bills to start in the House as a way to keep taxing authority closer to the people.
He said Senate Majority Leader Harry Reid had taken a House measure to help veterans buy homes, gutted it and transformed it into the Affordable Care Act legislation, which requires most Americans to carry health insurance and prohibits insurers from turning away the sick. After a long debate, the bill barely passed a divided Congress, with no Republican support.
"We say completely gutting the entire contents of a bill and replacing it with an entirely different bill is not an amendment; that's just subterfuge," Sandefur told reporters outside the state Capitol.
In June 2012, the U.S. Supreme Court upheld the crux of the health care law, ruling that the penalties to enforce it are a tax Congress is authorized to levy. About 8 million people had signed up for an individual policy on the newly created online marketplaces through the April 15 enrollment deadline.
Another 4.8 million lower-income people gained coverage through an expansion of Medicaid, which the Supreme Court ruled was optional for the states.
Sandefur acknowledged that the foundation is arguing a procedural rule after the nation's highest court made its decision, but he said the court should clarify the role of the Senate and the House in tax bills.
"If the people of the United States want the Affordable Care Act, then there's no reason why Congress can't go back and repass this thing the correct way," he said.
Messages left for the U.S. Department of Health and Human Services and the U.S. Department of Justice were not immediately returned Monday.