Obamacare and the Origination Clause II: Jack Balkin and Questions about the Original Meaning

In this post, I continue my earlier discussion of the Origination Clause through a review of Jack Balkin’s views.

Jack Balkin analyzes the Origination Clause issue in accord with his general approach to constitutional interpretation.  Jack writes:

My reading of the history is that today’s practice of using shell bills is not consistent with the original expected application of the Origination Clause. The House was quite jealous of its prerogatives for many years. Nevertheless, shell bills are consistent with the words of the Constitution: “the Senate may propose or concur with Amendments [to “Bills for raising Revenue”] as on other Bills.” Shell bills are Senate amendments to House revenue measures, and in other bills the Senate may strike as much of a bill as it wants to when it amends it.

So the question is whether twentieth century practice– and judicial precedents–have altered the best construction of the text so that it differs from the original expected application. If so, it would not be the first time this has happened.

I am not certain how to interpet Jack’s claim.  Based on what he says in the post and on his general interpretive approach, I interpret him to claim that the original public meaning of the Origination Clause is actually quite minimal.  The early broad interpretation involved a “construction” of the Clause and the later narrow interpretation was a different construction.  Both constructions are constitutional because the minimal original meaning does not conflict with either.  (If I have misunderstood his position, I welcome correction.)

I am skeptical of this analysis.  I see little reason to believe that the original meaning of the Origination Clause is so minimal.  Rather, the basic assumption should be the Clause had a single and determinate meaning when it was enacted.  The inquiry for the originalist is to determine what that meaning was by consulting the original materials.  In this case, the key question appears to be what counts as an amendment and whether a complete replacement is an amendment.

At the beginning of my career as a law professor, I did quite a bit of research on the history of constitutional provisions that restricted upper houses from introducing money measures.  There were significant controversies involving the matter in England, in the colonies, in the independent states, and at the Philadelphia Convention.  The Philadelphia Convention eventually reached a compromise or middle position.  It incorporated a provision that required revenue bills to originate in the House, but it allowed the Senate to amend such revenue bills.

But this history does not answer the basic question of what constitutes an amendment.  Based on current (and perhaps historical) usage, my sense is that an amendment could mean a change in an initial version of a bill that modifies the bill, but does not completely replace it.  But a problem with the definition is that it leaves open how much of the original bill must be retained.  Would a single small provision be adequate?  If not, how much?  This line drawing problem make it less likely that this is the meaning employed by the Framers.

One problem I find in analyzing this issue is that I am not even sure I understand the second portion of the Clause, which provides that “the Senate may propose or concur with amendments as on other Bills.”  What does “may propose or concur with amendments” mean?  I will turn to this question in my next post.

Update: I added a “not” to the penultimate paragraph, which had been mistakenly omitted.

Mike Rappaport

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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  1. Jack R says

    You write, “In this case, the key question appears to be what counts as an amendment and whether a complete replacement is an amendment.”

    Exactly. The PLF challenge should confront the illegitimacy of the Senate’s action head-on. I would frame the issue as follows:

    Despite its contradiction in terms, an “Amendment in the nature of a substitute” can be considered legitimate in leaving unchanged the original identifying number, but only when confined to legislation within one house, e.g.: in committee or floor amendments.

    When used as in this case where a Senate amendment (SA 2786) purports to amend a House tax bill (HR 3590) by replacing the entire text of said bill in its entirety with new text of its own making, yet retain the original number of the deleted bill for the purpose of complying with a constitutional command, it is nothing less than outright fraud.

    Look at it this way: Replacing the nameplate on a Lincoln Town Car with a nameplate taken from a totally-wrecked Cadillac does not make the Town Car a vehicle manufactured by General Motors.

    Allowing the Senate to hijack a House bill-number for its own use gives it a free hand to initiate any tax measure it may choose, thereby negating the Origination Clause as effectively as repealing it. All it needs is a House-passed “bill for raising revenue” as that term is defined by court precedent.

    Unfortunately, through their deference to the enrolled bill doctrine the federal courts have long sanctioned this unsavory procedure (The Original Sin was Flint v. Stone-Tracey Co. in 1911). By so doing they have countenanced the Senate’s perpetration of a fraud upon the American people.

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