Obamacare and the Origination Clause III: Propose or Concur with Amendments

In this third post on the Origination Clause, I turn to language in the Clause that is not entirely clear: “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”  What does this italicized language mean?

Perhaps the most obvious interpretation is that it is referring to two situations: (1) the Senate may propose Amendments or (2) the Senate may concur with Amendments.  In the second situation, the Constitution allows the Senate to take the House bill, amend it, pass it, and then send it to the House.  If the House approves it, then the bill is passed by the Congress as a whole.  In the first situation, the Senate merely proposes amendments to the bill but does not pass them.  If the House likes some of the proposals, it passes them as part of the bill and then sends that bill to the Senate for passage.

One question about this interpretation is why the Constitution would have specified both options.  My guess is that it was done to reflect the fact that historically (in the British Parliament, in the American colonies, and in the independent American states) both actions were taken by upper houses in responses to money bills passed by lower houses and were controversial under the constitutional rules then in play, which often gave the lower House significant power over money bills.  If memory serves, I believe that some upper houses would propose taxes that differed from those offered by the lower house and the lower house refuse to even read the proposals.  Thus, the Origination Clause makes clear that the Senate has the right either to make proposals to the House or to amend the House bill and pass the amended bill in the Senate.

Does any of this have implications for the Obamacare lawsuit?  It may.  Consider these two possible implications.  First, Andrew Hyman argues in an entertaining post that “concur with amendments” requires some sort of actual agreement with what the House did.  That might be the meaning of “concur” but if the interpretation I mention here is correct, then Hyman’s suggestion is probably not right.  Instead, the “concur with amendments” language would simply refer to the Senate passing an amended bill as opposed to proposing one without passing it

Second, one might argue that the proposal power was added to address the situation when the Senate attempted to make a large amendment to the House’s bill, including at the extreme entirely replacing it.  If the Senate were to do that, one might argue that the House could not pass that amended bill in the Senate.  Instead, the Senate would have to propose the amendment and send it back to the House to pass.  If the Houses passes it, then the Senate can pass it afterward.  Under this interpretation, the proposal power was added to address the situation involving large amendment and what the Senate did with Obamacare by replacing the bill and passing it was not allowed.  While this is possible understanding of the Clause , one would want some significant evidence from the Framing era before taking it very seriously.

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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Comments

  1. Andrew says

    Interesting. A few quick points….

    I don’t think the House of Lords (in parliament) was allowed to amend any revenue-raising bills. It was take-it-or-leave-it. Americans loosened that practice, and the phrase you’re analyzing was copied verbatim from the Massachusetts Constitution of 1780 (written mostly by John Adams).

    The phrase “as on other bills” was also copied verbatim from the Massachusetts Constitution, and I hope you’ll analyze that too. If an amendment practice is completely unknown for non-revenue bills, then I would think it is constitutionally dubious (at best) for revenue bills.

    Regarding whether the Senate here “proposed” or instead “concurred”, you contend that the Senate did the latter. But what did they “concur” with? Surely it wouldn’t make sense to say that the Senate concurred with itself. Nor would it make sense to say that the Senate concurred with some future action by the President or by the House. So are you saying that the Senate “concurred” with the enacting clause and bill number written by the House, and that that’s sufficient concurrence to satisfy the origination clause? My sense is that merely approving a bill number and enacting clause is not “concurring” in any meaningful way.

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