Obamacare and the Origination Clause I: Introductory Thoughts

The new challenge to Obamacare (ACA) – on the grounds that it does not conform to the Origination Clause – has been discussed by Randy Barnett and Jack Balkin among others.  Sadly, irrespective of the merits of the challenge, I don’t see the Supreme Court taking this seriously.  The Supreme Court like other politically powerful institutions, once having decided the matter and taken the political heat, are unlikely to revisit the issue.  Unless, of course, circumstances require them to do so.  Perhaps the Republican Party getting behind the lawsuit (as Balkin mentions) would be one of those circumstances, but I would be surprised if it does so.

The question, though, that I am interested in here is what is the original meaning.  Not having fully studied the issue, I don’t have a firm position, but I do have some contributions to make to the debate.

The Origination Clause provides that “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”  The argument against the constitutionality of the ACA under the Origination Clause is that the ACA “really” originated in the Senate, not the House.  According to the Pacific Legal Foundation, which is bringing the lawsuit:

what became the ACA was introduced in the upper chamber by Senate Majority Leader Harry Reid. In a so-called “shelf bill” maneuver, Reid took a House-passed measure to help veterans buy homes, struck out all its language, and inserted the federal health care legisla­tion that became known as the ACA, with its health insurance mandate and charge for people who choose not to comply. In fact, the ACA, as it was created in the Senate, included a dozen new taxes estimated to increase federal revenue by $486 billion by 2019.

One argument made against the constitutionality of the ACA under the Origination Clause is that, if the Origination Clause means anything, it has to hold the Senate’s action in this case unconstitutional.

Taken literally, I don’t think this is correct.  To my mind, the most extreme case – and the one where the Clause would clearly prohibit the Congress’s action – is if the Senate did not take the trouble to amend a House bill at all.  It simply introduced its own bill.  That would be unconstitutional.  In the ACA case, the Senate did “amend” a House bill.  Another extreme, but less extreme case, would involve the Senate taking a House nonrevenue bill and “amending” it.  Again, that would be clearly unconstitutional.

In my next post, I will discuss Jack Balkin’s analysis of the issue.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Andrew says

    You may be correct that the Supreme Court may say “enough is enough” regardless of the merits. Aside from the absence of an “Enough is Enough Clause” in the Constitution, a couple other factors may be relevant. First, the 4-person dissent specifically flagged the Origination Clause as an issue that had not been addressed. Second, the revenue-raising character of the legislation was greatly clarified and enhanced by the Court’s decision.

  2. JD Bryant says

    I have learned a great deal about the Constitution and American history from this blog. I check it daily. I have something to say. Sometimes you guys don’t seem to have your feet on the ground. You seem to pick fly specks out of pepper and miss what seems to be the obvious. I am not an attorney, but if you take a bill and completely gut and put in other language you are not amending the bill you are replacing it. You are borrowing a name and sticking it on a new bill. The world of the common man sees what was done as illegitimate and even having a debate about it being illegitimate as ludicrous. The Supreme Court needs to take this up or this practice will get worse. If it does not, it is utterly failing its responsibility to the people of the United States. That’s my opinion.

    • GQ4U says

      Thank you for posting your thoughts.
      Mr Bryant, you wrote; “I am not an attorney, but if you take a bill and completely gut and put in other language you are not amending the bill you are replacing it.” Its obvious you are NOT an attorney because your logic is impeccable; absolutely right. I might add to your comment that after Harry gutted the veterans aid bill then slapped a new name on it as well. Also notable is the extreme insistence by Democrats and Obama that mandates & penalties in the legislation were definitely NOT taxes. The Court’s decision created a tax where there was none. We now have two Constitutional violations: 1) – The Origination Clause; 2) – The Court creating and passing legislation, a task specific to Congress only; this is legislating from the Bench and it needs to be stopped. This has come about because law universities nearly 100 years ago changed the focus of law away from using the Constitution as the standard of measure by which laws are allowed to stand or not, to focusing on prior court rulings. Precedent replaced the Constitution thus allowing slight perversions, here and there, to over time obscure what is right and replace it with what is expedient or willful. Without this perversion there would never have been an Affordable Care Act. Oddly enough I believe this is why the Supreme Court refuses to hear Article II; Section I; Clause V; eligibility arguments because both the Constitution and ‘Precedent’ support removing a sitting President. Usurpation is illegal and when it occurs in the Oval Office it is dangerous.
      Support the http://www.FairTax.org and abolish the IRS.

  3. Tim Wolford says

    I do not agree with this legal analysis.

    The Constitution permits the Senate to “propose or concur with Amendments as on other bills.” However, the power of the Senate to amend a bill originating in the House is not unlimited. The Senate’s amendment must be germane to the subject matter of the House bill. See Flint, 220 U.S. at 143, 31 S.Ct. at 346; Armstrong, 759 F.2d at 1381. the Senate’s authority to attach revenue-raising amendments to House bills applies only to revenue bills. 2 Hinds’ Precedents of the House of Representatives of the United States Sec. 1489 (1907); see also Armstrong, 759 F.2d at 1382. (“[O]nce a revenue bill has been initiated in the House, the Senate is fully empowered to propose amendments”). The original bill passed by the House of Representatives was the “Service Members Home Ownership Act of 2009″, and was never originally intended to generate and raise revenue.

    The Houses bill did not deal with and the purpose of the legislation was not germane to any form of healthcare. The subject matter of the House bill in this case was amending the IRS tax code as it applies to assisting veterans in buying homes, –not mandating consumers to purchase healthcare thru an individual mandate and raising general revenue through the imposition of taxes. Thus, regardless of the effect of the ‘amendment,’ the ‘amended portion’ of the legislation according to the ACA or any of its provisions did, and does not address amending the tax code in assisting veterans in buying homes.

    The primary purpose of the tax provisions in the ACA is revenue raising; the legislation originated in the Senate, and the special assessment cannot be interpreted as an amendment of a House revenue bill. Although the original bill ultimately passed the House unanimously, the Senate clearly initiated the provisions of the ACA legislation, however, not as minor components of the continuing appropriations in amending the IRS tax code. The provisions of the ACA and all of its provisions relating to taxes to raise general revenue was first introduced in the Senate, it was first passed by the Senate and was only adopted by the House on later re-passage. Based on this reading of the legislative history, one can only logically hold that that ACA and the provisions related to revenue generation originated in the Senate and was not germane to HR 3590.

    The Senate’s amendment relating to and provisions of the individual mandate and revenue raising was not an amendment to a revenue bill which originated in the House and was not germane to the House’s bill within the meaning of the origination clause. As such, the provisions of the ACA and special assessments on taxation on convicted persons violated the Origination Clause and, therefore, is unconstitutional. If any act violates the Origination Clause, it would seem to be the Affordable Care Act.

  4. GQ4U says

    Very well stated, I couldn’t agree more.
    I would point out that supporters of the ACA were adamant that mandates were not taxes and this allowed them to bypass the Origination Clause. It was the SCOTUS that re-wrote the legislation and changed mandates into taxes to justify their decision. This automatically placed the legislation under the Origination Clause provision; plus the Court violated the Constitution by writing legislation which is only allowed to be done by Congress.

    PS: I’m send Harry Reid a Bean-burrito hoping he sends it back as a Chocolate-eclair.

  5. Thomas says

    As an attorney over 30 years of experience in tax matters, I clearly take offense with the argument that the Senate amended the House bill on affordable housing for veterans. The only thing remaining from that bill was the bill number. The purpose of the origination clause of the Constitution regarding taxation matters was to address the fears that this country’s founders had regarding taxation without representation (the prime cause for the American revolution). Bills raising revenue for the government must originate in the House of Representatives which has the broadest representation of the American citizens. If the Supreme Court were to allow the Senate to simply gut any bill originating in the House under the guise of amending that bill and replacing it with large scale revenue raising language, it makes a complete mockery of a clear constitutional requirement that was an elemental foundation to this country’s formation. If the Supreme Court is going to become politicized to such a degree and chooses to ignore this question (something that they are want to do lately since no one on the Court seems to be comfortable with Constitution issues regarding taxation), we’re simply one step closer to a second American revolution where the citizens of this country choose to overthrow the nest of fools (the professional politicians put forth by the tainted two party system) residing in Washington DC. Let’s go for the trifecta – This country is rapidly becoming financially bankrupt. Too many of its politicians seem to be morally bankrupt. Why not become Constitutionally bankrupt as well.

  6. Lin Zexu says

    I find it curious that so many legal minded individuals are unwilling to research what the Supreme Court has said about the question of what is or is not a revenue bill. They have done so on occasion since the 19th century. Although there may be many reasons to object to the ACA, the idea that it violates the origination clause is not one that bears scrutiny. The Supreme Court has held to a narrow understanding of the origination clause briefly illustrated by the comment of Joseph Story in 1813. A revenue bill, according to him is one, “made for the direct and avowed purpose for creating and securing revenue or public funds for the service of the government. No laws, whose collateral and indirect operation might possibly conduce to the public or fiscal wealth, are within the scope of the provision.”

    If “we” are “financially bankrupt” and “morally bankrupt” I suppose we can only conclude that we became “Constitutionally bankrupt” within the first 25 years of the Republic (Story’s commentary having been made in 1813). What disturbs me the most about these sonorous declamations of our legal declension is that they come from individuals who ought to be better at educating themselves about so straightforward a topic as how the origination clause has been interpreted as a matter of legal history.

    “The primary purpose of the tax provisions in the ACA is revenue raising”

    This is a gross misconstruction. The question “is this a revenue bill” is addressed by consideration of the bill in its entirety, not its tax provisions in isolation. Furthermore the use of those revenues must be for general rather than specific purposes.

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