What follows is the third of
three blog posts examining the origination clause of the United States
Constitution and the recent decision of the United States this Court of Appeals
for the District of Columbia analyzing a challenge to the Patient Protection
And Affordable Care Act under the Origination Clause. Part
one consists of a review of the recent court decision holding that the
Origination Clause requirement, namely that bills for raising revenue originate
in the United States House of Representatives, was not a basis for concluding
that the individual penalty for failing to purchase health insurance violated
the Constitution. Part
two challenges the presumption that policy for the entire nation may be
created by decisions of judges in ordinary litigation. In this final part, I
offer the reader the historical background for the Origination Clause so that
they might, should they wish to do so, judge for themselves whether the United
States Court of Appeals for the District of Columbia Circuit correctly
concluded that the individual coverage penalty under Obama care did not violate
the Origination Clause.
As previously noted, a federal appeals court in
Washington, DC,
held that one of the tax penalties imposed by Congress under the Patient
Protection and Affordable Care Act does not violate the Constitution’s
Origination Clause. Under Article I, section 7, of the Constitution, “
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.” Judge Judith Rogers, writing for herself and
two colleagues, concluded that, although the tax penalty is, in fact, a tax,
and did, in fact, originate in the United States Senate, the provision did not
violate the Origination Clause. Judge
Rogers based her conclusion on her analysis of the motivation of Congress that
prompted the enactment of Obamacare.
Because, in her view, the Act was not adopted “to raise revenue,” the
Origination Clause’s mandatory requirement -- origination in the House -- was
inapplicable to the Act.
Perhaps Judge Rogers was right. Perhaps she was wrong.
In this final post on the decision, I offers
reasons, independently verifiable, that powerfully suggest that, although
clever and facile, Judge Rogers is, in fact, wrong on this point of history, of
constitutional meaning, and of law.
To judge for yourself whether Judge Rogers has “dishonored the arts of the historian and
degraded the talents of the lawyer” by her “superficial and purposive interpretations of the past,” I offer
some insight into the Origination Clause, its predecessor in English law, its
advent in the Constitutional Convention of 1787, its construction by those who
debated its inclusion in the Constitution, by those who interpreted its meaning
early after its enactment, and its construction by the Supreme Court over the
history of our Nation. Finally, I
propose a common sense problem embodied in Rogers’ approach that deflates any wind in
the sails of her approach.
The Origination Clause
The Constitution provided a framework for a
strengthened central government for the States.
The basics of that framework are found in the first three Articles of
the Constitution. Article I outlines the
Legislative Branch, Article II outlines the Executive Branch, and Article III
outlines the Judicial Branch. In keeping
with our English forebears, and State Charters and Constitutions predating the
US Constitution, the States and the People endowed on the Legislative Branch
the power to enact laws, including the power to raise funds for the operation
of the government. To raise those funds,
Congress, the House of Representatives specifically, may originate “bills for
raising revenue.” While the language is, seemingly, straightforward, a question
does exist exactly what would constitute a bill for raising revenue.
The
language “bills for raising revenue” did not spring full-grown from the head of
the Zeusian participants in the constitutional convention. Rather, precedence
in the constitutions of the colonies, the new states, and in English history
offered guidance on the justification for an origination clause and the
language of one. What follows here is a brief review of that pre-existing
material on which the founding fathers could justifiably rely in their
consideration of, and proposal of, the origination clause.
The English Predecessor to the Origination Clause
The English Bill of Rights, 1689, limited the power of the Crown to tax
the people without approval of parliament:
This provision of the English Bill of Rights reflected a
judgment that taxing or laying levies upon the English people could only be
justified if the people themselves, through that legislative body which
directly represented them, the House of Commons, originated such taxes or
levies. Explaining, William Blackstone, in his Commentaries on the Law, wrote:
it is the an[c]ient indisputable
privilege and right of the house of commons, that all grants of subsidies or
parliamentary aids do begin in their house, and are first bestowed by them;
although their grants are not effectual to all intents and purposes, until they
have the assent of the other two branches of the legislature.
American Antecedents of the
Origination Clause
Contemporaneously with Blackstone’s Commentaries, the English Parliament
imposed the Stamp Act. The Act, enacted
without debate, assessed duties or taxes, on a variety of colonial goods,
services, professions and activities. The parliament, however, did not include
representatives elected to Parliament by the colonies. Consequently enactment
of the Stamp Act constituted taxation without representation. Yet the principle
of representation as a justification for taxation was the very reason for the enactment
of English law requirement of origination of taxes in the House of Commons.
In response to the enactment of the Stamp Act, the
Stamp Act Congress adopted a Declaration of Rights, expressing “with the warmest sentiments of affection and duty to his majesty's
person and government. . . . ” That sentiment having been stated, the Stamp Act
Congress then laid out arguments against the Stamp Act, and for the legitimacy
of colonial legislatures. They declared:
That his majesty's liege
subjects in these colonies are entitled to all the inherent rights and
privileges of his natural born subjects within the kingdom of Great Britain,
That it is inseparably
essential to the freedom of a people, and the undoubted rights of Englishmen,
that no taxes should be imposed on them, but with their own consent, given
personally, or by their representatives.
That the people of these
colonies are not, and from their local circumstances, cannot be represented in
the house of commons in Great
Britain.
That the only representatives
of the people of these colonies, are persons chosen therein by themselves; and
that no taxes ever have been, or can be constitutionally imposed on them, but
by their respective legislatures.
…..
That the late act of
parliament entitled, an act for granting and applying certain stamp duties, and
other duties in the British colonies and plantations in America, &c., by
imposing taxes on the inhabitants of these colonies, and the said act, and
several other acts, by extending the jurisdiction of the courts of admiralty
beyond its ancient limits, have a manifest tendency to subvert the rights and
liberties of the colonists.
That the duties imposed by
several late acts of parliament, from the peculiar circumstances of these
colonies, will be extremely burthensome and grievous, and from the scarcity of
specie, the payment of them absolutely impracticable.
That as the profits of the
trade of these colonies ultimately centre in Great Britain, to pay for the
manufactures which they are obliged to take from thence, they eventually
contribute very largely to all supplies granted there to the crown.
That the restrictions imposed
by several late acts of parliament, on the trade of these colonies, will render
them unable to purchase the manufactures of Great Britain.
….
As a matter of expedience, Parliament repealed the
Stamp Act the year following its enactment, although the repeal may not have
been because of the American colonial arguments or the Declaration of
Rights. Still, the experience had its
impact on the political sensibilities of the American colonists. They became acutely aware of the differences
between their situation and those of their fellow Englishmen at home. They had
no voice in Parliament. Their colonial
legislatures were subject to suspension.
By the time of the Revolutionary War, the newly
independent States had assayed the importance of choosing the legislative house
most closely aligned with the voice of the people, as the chamber in which
legislation raising revenues for the government should originate. In fact, each
of the newly independent states, but one, included an origination clause or
money bill clause in their state constitutions.
I offer here are a few examples of those provisions:
Delaware’s 1776
Constitution stated:
All money-bills for the
support of government shall originate in the house of assembly, and may be
altered, amended, or rejected by the legislative council. All other bills and
ordinances may take rise in the house of assembly or legislative council, and
may be altered, amended, or rejected by either.
Maryland’s 1776 Constitution
stated:
That
the House of Delegates may originate all money bills, propose bills to the
Senate, or receive those offered by that body; and assent, dissent, or propose
amendments; that they may inquire on the oath of witnesses, into all
complaints, grievances, and offences, as the grand inquest of this State; and
may commit any person, for any crime, to the public jail, there to remain till
he be discharged by due course of law. They may expel any member, for a great
misdemeanor, but not a second time for the same cause. They may examine and
pass all accounts of the State, relating either to the collection or
expenditure of the revenue, or appoint auditors, to state and adjust the same.
They may call for all public or official papers and records, and send for
persons, whom they may judge necessary in the course of their inquiries,
concerning affairs relating to the public interest; and may direct all office
bonds (which shall be made payable to the State) to be sued for any breach of
duty.
The 1776 Constitution of New Hampshire provided:
That all bills, resolves, or
votes for raising, levying and collecting money originate in the house of
Representatives.
The 1776 New Jersey
Constitution stated:
That the Council shall also
have power to prepare bills to pass into laws, and have other like powers as
the Assembly, and in all respects be a free and independent branch of the
Legislature of this Colony; save only, that they shall not prepare or alter any
money bill-which shall be the privilege of the Assembly; that the Council
shall, from time to time, be convened by the Governor or Vice-President, but
must be convened, at all times, when the Assembly sits; for which purpose the
Speaker of the House of Assembly shall always, immediately after an
adjournment, give notice to the Governor, or Vice-President, of the time and
place to which the House is adjourned.
Likewise, the 1776
Constitution of South Carolina required:
All money-bills for the
support of government shall originate in the general assembly, and shall not be
altered or amended by the legislative council, but may be rejected by them. All
other bills and ordinances may take rise in the general assembly or legislative
council, and may be altered, amended, or rejected by either.
The 1776 Constitution of
Virginia stated:
All laws shall originate in
the House of Delegates, to be approved of or rejected by the Senate, or to be
amended, with consent of the House of Delegates; except money-bills, which in no
instance shall be altered by the Senate, but wholly approved or rejected.
Together with the English
Bill of Rights, and these several state constitutional provisions, the reader
should have a good sense from whence the expression “no taxation without representation”
arose.
The Origination Clause and the Constitutional
Convention of 1787
During the Constitutional
Convention of 1787, in Philadelphia,
the delegates heartily debated the proposed Origination Clause. Elbridge Gerry, of Massachusetts, first proposed a clause
requiring that bills raising revenue originate in the United States House of
Representatives. In Gerry’s view, “Taxation and representation are strongly
associated in the minds of the people, and they will not agree that any but
their immediate representatives shall meddle with their purses.” More fully,
Gerry stated, “He “moved to restrain the Senatorial branch from originating
money bills. The other branch was more immediately the representatives of the
people, and it was a maxim that the people ought to hold the purse-strings. If
the Senate should be allowed to originate such bills, they wd. repeat the
experiment, till chance should furnish a sett of representatives in the other
branch who will fall into their snares.”
Virginia’s Edmund Randolph suggested that the problem of the Gerry’s
language was that it could be interpreted so broadly that it could apply to
legislation that only incidentally raised money, and proposed modifying it.
(
This image is excerpted from Max Farrand’s Debates of the Federal Convention, available online here.)
In the excerpt shown
here, note the language proposed by Edmund Randolph: “Bills for raising money for the purpose of revenue....” This express statement of limitation, namely
that only the House could originate those bills that (a) raised money (b) for
the purpose of revenue – was rejected by the Constitutional Convention.
James
Madison’s thoughts, responding to Randolph’s
proposal, were based on the Nation’s short and recent history with Great Britain,
were precisely the issue of multipurpose actions were at stake. There, the colonists conceded the authority
of Parliament to regulate trade, he reminded the delegates, but rejected their
power to raise revenues from the colonies without representation of the
colonists.
The Convention referred
Gerry’s proposal to the Compromise Committee on Representation. In turn, the
Compromise Committee’s proposal included an Origination Clause. George Mason,
of Virginia,
explained why the Committee had proposed, when reporting back to the
Convention, the Origination Clause:
The consideration which
weighed with the Committee was that the 1st. branch would be the immediate
representatives of the people, the 2d. would not. Should the latter have the
power of giving away the peoples money, they might soon forget the Source from
whence they received it. We might soon have an aristocracy. He had been much
concerned at the principles which had been advanced by some gentlemen, but had
the satisfaction to find they did not generally prevail. He was a friend to
proportional representation in both branches; but supposed that some points
must be yielded for the sake of accom[m]odation.
Benjamin Franklin supported
the Origination Clause. His views,
expressed to the Convention, were summarized in convention notes as follows:
Docr. Franklin did not mean to go into a
justification of the Report; but as it had been asked what would be the use of
restraining the 2d. branch from med[d]ling with money bills, he could not but
remark that it was always of importance that the people should know who had
disposed of their money, & how it had been disposed of. It was a maxim that
those who feel, can best judge. This end would, he thought, be best attained,
if money affairs were to be confined to the immediate representatives of the
people. This was his inducement to concur in the report. As to the danger or
difficulty that might arise from a negative in the 2d. where the people wd. not
be proportionally represented, it might easily be got over by declaring that
there should be no such Negative: or if that will not do, by declaring that
there shall be no such branch at all.
In a subsequent debate of
the Convention on amending the Origination Clause, George Mason rejected
attacks on the Origination Clause.
“Col. Mason was unwilling to
travel over this ground again. To strike out the section, was to unhinge the
compromise of which it made a part. The duration of the Senate made it improper.
He does not object to that duration. On the Contrary he approved of it. But
joined with the smallness of the number, it was an argument against adding this
to the other great powers vested in that body. His idea of an Aristocracy was
that it was the gover[me]nt. of the few over the many. An aristocratic body,
like the screw in mechanics, worki[n]g. its way by slow degrees, and holding
fast whatever it gains, should ever be suspected of an encroaching
tendency--The purse strings should never be put into its hands.”
Luther Martin, in 1788,
criticized the Origination Clause during the debates in the States on
ratification. In his “Genuine
Information,” he reported to the Legislature of Maryland on the conduct and
debates of the Philadelphia Convention. His
report corresponded to the proposals offered by a committee of the Convention,
the seventh of which proposed to limit the power to originate bills for the
raising of revenue by placing it solely in the House of Representatives,
subject to amendment by the Senate and a veto power in the Chief Executive:
“The seventh section of this article was also the
subject of contest--It was thought by many members of the convention, that it
was very wrong to confine the origination of all revenue bills to the house of
representatives, since the members of the senate will be chosen by the people
as well as the members of the house of delegates, if not immediately, yet mediately, being chosen by the members of the
State legislature, which members are elected by the people, and that it makes no real difference whether we do a thing in person, or by a deputy, or agent, appointed by us for that
purpose.
That no argument can be drawn
from the House of Lords in the British constitution, since they are neither
mediately nor immediately the representatives of the people, but are one of the three estates, composing that
kingdom, having hereditary
right and privileges, distinct from, and independent of, the people.
That it may, and probably will
be a future source of dispute and controversy between the two branches, what
are, or are not revenue bills, and the more so, as they are not defined in the constitution; which
controversies may be difficult to settle, and may become serious in their
consequences, [there] being no power in the constitution to decide upon, or
authorised in cases of absolute necessity to terminate them by a prorogation or
dissolution of either of the branches; a remedy provided in the British
constitution, where the King has that power, which has been found necessary at
times to be exercised in case of violent dissentions between the Lords and
Commons on the subject of money bills.
That every regulation of
commerce; every law relative to excises, stamps, the post-office, the imposing
of taxes, and their collection, the creation of courts and offices; in fine,
every law for the union, if enforced by any pecuniary sanctions, as they would
tend to bring money into the continental treasury, might and no doubt would be
considered a revenue act--That consequently the senate, the members of whom
will it may be presumed, be the most select in their choice, and consist of men
the most enlightened, and of the greatest abilities, who from the duration of
their appointment and the permanency of their body, will probably be best
acquainted with the common concerns of the States, and with the means of
providing for them, will be rendered almost useless as a part of the
legislature; and that they will have but little to do in that capacity, except
patiently to wait the proceedings of the house of representatives, and
afterwards examine and approve, or propose amendments.”
Notice that Martin’s
objections to the origination clause confirm the absence of a definition in the
constitutional provision for bills raising revenue. Nonetheless, his argument
strongly suggest a broad reading was accepted for bills raising revenue: “That every regulation of commerce; every
law relative to excises, stamps, the post-office, the imposing of taxes,
and their collection, the creation of courts and offices; in fine, every law
for the union, if enforced by any pecuniary sanctions, as they would tend to bring money into the continental treasury,
might and no doubt would be considered a revenue act.”
In 1788, Theophilus
Parsons addressed the Origination Clause during an address to the Massachusetts
Convention on the Ratification of the proposed Constitution:
“It is objected that it is
dangerous to allow the Senate a right of proposing alterations or amendments in
money bills; that the Senate may by this power increase the supplies, and
establish profuse salaries; that for these reasons the lords in the British
Parliament have not this power, which is a great security to the liberties of
Englishmen. I was much surprised at hearing this objection, and the grounds
upon which it was supported. The reason why the lords have not this power, is
founded on a principle in the English constitution, that the commons alone
represent the whole property of the nation; and as a money bill is a grant to
the king, none can make the grant but those who represent the property of the
nation; and the negative of the lords is introduced to check the profusion of
the commons, and to guard their own property. The manner of passing a money
bill is conclusive evidence of these principles; for, after the assent of the
Lords, it does not remain with the clerk of the Parliament, but is returned to
the commons, who, by their speaker, present it to the king as the gift of the
commons. But every supposed control the Senate, by this power, may have over
money bills, they can have without it; for, by private communications with the
representatives, they may as well insist upon the increase of the supplies, or
salaries, as by official communications. But had not the Senate this power, the
representatives might take any foreign matter to a money bill, and compel the
Senate to concur, or lose the supplies. This might be done in critical seasons,
when the Senate might give way to the encroachments of the representatives,
rather than sustain the odium of embarrassing the affairs of the nation; the
balance between the two branches of the legislature would, in this way, be
endangered, if not destroyed, and the Constitution materially injured. This
subject was fully considered by the Convention for forming the constitution of Massachusetts, and the
provision made by that body, after mature deliberation, is introduced into the
federal Constitution.”
The Virginia
Ratifying Convention included a debate on the Origination Clause. That debate,
between James Madison and William Grayson, matched the wits of a leading
Federalist, Madison, and a leading anti-Federalist, Grayson. While the debate between the two is a
fascinating read, and study on the division of representation and the division
of power, at no point in the debate is the question addressed what constitutes
a bill for the raising of revenue.
“Mr. White.
The Constitution, having authorized the House of Representatives alone to
originate money bills, places an important trust in our hands, which, as their
protectors, we ought not to part with. I do not mean to imply that the Senate
are less to be trusted than this house; but the Constitution, no doubt for wise
purposes, has given the immediate representatives of the people a control over
the whole government in this particular, which, for their interest, they ought
not to let out of their hands.
Mr. Madison. The Constitution places the power in the House of
originating money bills. The principal reason why the Constitution had made
this distinction was, because they were chosen by the people, and supposed to
be the best acquainted with their interest and ability. In order to make them
more particularly acquainted with these objects, the democratic branch of the
legislature consisted of a greater number, and were chosen for a shorter
period; that so they might revert more frequently to the mass of the people.”
Again, note that this debate goes to the
question of the value of assigning the Origination power to the House of
Representatives, not to the meaning of bills for raising revenue.
Joseph Story, writing in his Commentaries on the
Constitution, addressed the debate over the Origination Clause, and, in part,
responded to the arguments made by Luther Martin, in his Genuine Information.
Story wrote:
“What bills are properly ‘bills for raising
revenue,’ in the sense of the constitution, has been matter of some discussion.
A learned commentator supposes, that every bill, which indirectly or
consequentially may raise revenue, is, within the sense of the constitution, a
revenue bill. He therefore thinks, that the bills for establishing the post office,
and the mint, and regulating the value of foreign coin, belong to this class,
and ought not to have originated (as in fact they did) in the senate. But the
practical construction of the constitution has been against his opinion. And,
indeed, the history of the origin of the power, already suggested, abundantly
proves, that it has been confined to bills to levy taxes in the strict sense of
the words, and has not been understood to extend to bills for other purposes,
which may incidentally create revenue. No one supposes, that a bill to sell any
of the public lands, or to sell public stock, is a bill to raise revenue, in
the sense of the constitution. Much less would a bill be so deemed, which
merely regulated the value of foreign or domestic coins, or authorized a
discharge of insolvent debtors upon assignments of their estates to the United
States, giving a priority of payment to the United States in cases of
insolvency, although all of them might incidentally bring revenue into the
treasury.”
Supreme Court Interpretation and Application of the
Origination Clause
Suppose you make a contract with
a local builder for the construction of your new home. The contract calls for “a deposit before
construction commences, progress payments of one quarter of the total contract
amount” at defined completion points, requires the general contractor to
“regularly report on the progress of construction,” and conditions receipt of
the final payment on “satisfaction of the buyer.” The contractor calls you as
the project is nearing completion and invites you to inspect the home on a near
future date. The contractor has
completed the house to specifications.
All elements are met in the construction. You inspect the home, note that all
specifications are as you stated.
Nonetheless you withhold a
statement of satisfaction and refuse final payment. You do so, at least based on your statements
to the contractor, because you are “not satisfied.” You refuse to state a ground of
satisfaction. The contractor refuses to
surrender the premises to you, refuses to transmit the certificate of occupancy
he obtained for you, and demands payment.
You sue. He sues.
The contract does not REQUIRE a
buyer of services to falsely state satisfaction if he is unsatisfied. The contract does not require the buyer to
state expressly the grounds of dissatisfaction (a punch list, for example, of
needed corrections to the project). The
contract does not expressly require that the buyer’s judgment be a reasonable
one. It is likely that in the trade of
construction there are accepted practices related to conducting business,
including in the formation of contracts.
The contractor’s attorney insists that “everyone knows” that the
judgment regarding satisfaction has to be a “reasonable” one, and that, to be
reasonable, a judgment has to be articulated, stating particular grounds for
dissatisfaction. More, he argues,
because you do not do so, your refusal to state satisfaction is “unreasonable”
and therefore, does not constitute a proper denial of satisfaction. In the attorney’s view, you should be
required to make the final payment on the contract.
What is a judge to do?
Does a judge hold the parties to
the strict standard of their written agreement? That would favor the buyer of
the home, whose refusal to state why they are not satisfied seems eminently
unreasonable to the judge. Does the judge color his reading of the contract
with the construction trade’s assumption that a requirement of “satisfaction”
actually means “satisfied according to reasonable judgment?” That would favor the contractor that may have
failed to reasonably accomodated the concerns of the buyer?
You see, the business of judging
actually involves these real world kinds of conflicts, commanding real world
resolutions.
But do these principles apply to the governing of a Nation? To the construction
and application of our National contract, the United States Constitution? I think the reasonable answer is that courts,
to do their jobs must be able to read and apply the Constitution. How else can a dispute be resolved, for
example, in the moment when an impeached and removed federal judge refuses to
leave his bench, continues to hear cases, and impose judgments in those cases?
Her superiors must have the ability to understand the constitutional power of
Congress to impeach judicial officers. They must in order to protect litigants,
both civil and criminal, from the now-unlawful actions of such a judge.
So, yes, I think it obvious that
a federal judge, a federal court, must be able to apply the Constitution to the
cases before it.
But what about the cases in which
it is argued that the meaning of the Constitution is unclear? Does a federal judge have the power to
consider that question, and to resolve it?
Again, I think the obvious answer is that a judge does have that power.
These blog posts do not challenge
that power. Instead, they challenge the
exclusivity of that power. Do courts alone have such a prerogative? Although the view that courts enjoy that
prerogative is the accepted norm today, it certainly is far from clear that the
Framers of our Constitution, or other well-regarded Americans thought so. For more on this point,
revisit
the second post in this series.
Still, a thoughtful examination
of the meaning of the Origination Clause, an examination that provides you,
dear reader, with sufficient background to make your own, informed judgment
about the meaning of that clause, and about the quality of Judge Rogers’
decision, should also provide you insight into how the Supreme Court has
construed the Origination Clause.
The Commentaries on the Constitution, written
by Joseph Story, mentioned above, embody the views of a Supreme Court justice,
Justice Story. During his tenure on the
Court, in 1813, Story authored an opinion, United States v. Mayo,
26 Fed. Cas. 1230, 1231 (C. C. Mass. 1813)(No. 15,755), in which he concluded that
laws subject to the Origination Clause are only those laws made for the direct
and stated purpose of creating revenue for the government. In Story’s opinion,
it was not an Origination Clause defect that a law originated in the Senate,
rather than the House, where it indirectly or incidentally enhanced the
treasury.
Three
cases decided by the Supreme Court show that the Court has, thus far, aligned
itself with Story’s construction of the Constitution. In these cases, as direct holdings, or as
statements of principle, the Court sets out the view of the Origination Clause
that it is limited only to a class of laws enacted for the primary purpose of
raising revenue and with the principal result that the funds raised thereby
apply to the general obligations and expenses of the federal government, rather
than a specific project or purpose.
In Twin
City Bank v. Nebeker, 167 U.S. 196 (1897), the Supreme Court decided
the constitutionality of a federal statute creating a currency and charging
banks a fee related to the currency circulating at any one time did not violate
the Origination Clause. The Court
concluded that the prime motivation in Congress for the law was creating a
national currency, not imposing a fee that generated income to the federal
fisc. In the Court’s view, income to the
federal government was merely incidental to the creation of the currency.
Shortly
after, in Millard v. Roberts, 202 U.S. 429 (1906), in a case
considering an Origination Clause challenge to federal legislation imposing a
property tax in the District of Columbia, the revenue from which was to be used
for the construction of railroad terminals in the Nation’s Capitol, the Court concluded
that the law was adopted to raise revenue for that specific purpose, not to
meet the federal government’s general expenses or obligations.
Finally,
in United States v.
Munoz-Flores, 495 U.S. 385, 398 (1990), the Supreme Court rejected an
Origination Clause challenge to a federal statute adopting a “special
assessment” to be imposed on those convicted of misdemeanors in federal
court. The assessment imposed by
Congress would help meet the expenses of crime victim compensation
programs. While the Court acknowledged
that the assessment created a source of income for the federal government, that
result was not determinative. Instead,
in the Court’s view, the assessment was indistinguishable from the fee in Nebeker and the tax in Millard.
In a footnote, the Supreme Court did offer, as a point of distinction,
that some cases might arise if “the program funded were entirely unrelated to
the persons paying for the program” or where “the connection between payor and
program was more attenuated….”
Rogers’ Approach Disrespects the Common Sense of the Origination
Clause’s Words and Purpose
Judge Rogers adopted the approach taken by the
Supreme Court, namely the search for the intent of Congress that animated the
enactment of the Patient Protection and Affordable Care Act. Because she concluded that the purpose of the
Congress was to remediate systemic issues with America’s health insurance
policies, the fact that the Act raises revenue (a point she concedes) is
irrelevant. Is Rogers’ conclusion consistent with prior
Supreme Court interpretations of the Origination Clause? I think the obvious answer is yes, but read
the cases cited above for yourself and see if you agree.
Does the fact the prior Supreme Court cases have taken a similar approach doom
Matt Sissel’s challenge to the individual penalty? Well, again, the answer is, it depends.
It depends on the Court’s own construction of the Clause. Here, there is a substantial reason for the
Court to reject Rogers’
decision and its prior rulings: the
history of the Origination Clause.
Remember Edmond Randolph?
He proposed a refinement to the language of the Origination Clause, as I
mentioned above. His proposal, rejected
by the Convention, would have limited the prerogative of the House of
Representatives regarding Origination of revenue legislation. He proposed that the Clause be phrased,
“bills for raising money for the purpose of revenue.” For the
purpose of raising revenue. You see,
Randolph looked
down the road into the future lying ahead of this nascent nation and concluded
that the Origination Clause, a clause he opposed, could be greatly limited by
including an intentionality requirement.
The Convention rejected Randolph’s
limiting language. It does not return in
further debates. It does not appear in
the proposed Constitution. It is not
ratified by the States. It died, so to speak, in convention.
Justice Scalia once criticized a test the Court occasionally employs in
religion cases, and his colleagues dilettante
invocation of that test when it suited their needs but not otherwise, as being
like a bad monster movie monster that, killed, rises again. Much the same can be said of Randolph’s rejected refinement of the
Clause. Rejected at offering. Refused in Committee. Disappeared from Convention. Excluded in ratification.
Yet the Federalist’s need for such a restraint on
the House was evident and real. Despite
its rejection, refusal, disappearance and exclusion, it rises in the writing of
Justice Joseph Story. Yes, Story was a
profoundly well-respected author on the Constitution. His views aught not be
turned aside without appropriate consideration.
Yet, at the end of the day, a single, consistent and fixed rule for the
construction of laws has guided the Supreme Court’s cases, has informed
legislative bodies enacting laws, and has even advised those that enter into
private contracts and agreements. And
the application of that principle leaves no doubt to me that Story is wrong,
that
Rogers is
wrong, and that Matt Sissel is right.
The Supreme Court has stated that principle in this way:
“Congress does not intend sub silentio to
enact statutory language that it has earlier discarded in favor of other
language.”
Do not let “sub silentio” confuse or disturb
you. In its place, read these words
“without saying so.” “Congress does not
intend
without saying so to enact statutory language that it has earlier
discarded in favor of other language.”
There are powerful institutional reasons why a judge would adopt the rule
followed by Judge Rogers. Such a rule
emphasizes the role of judges in resolving such questions. It enhances the lynchpin role of courts as
mediating partners in the development of policy. The problem is that, once you come to see
judges as individuals that first decide outcomes then search for
justifications, the bloom falls hard from the rose.
We may well be attached to the individual coverage penalty in a way that the
Supreme Court will not see its way clear to sever. To do so, would require to freshly appraise
the Origination Clause, its own jurisprudence regarding the Clause, and the
potential for future invalidations of other, previously sustained federal
enactments. Those reasons are not
inconsiderable. They are not, however,
reasons to deform words, history or truth.
At the same time, if the current construction of the Origination Clause is retained by the Court, then the Origination Clause will, in fact, be a constitutional nullity. The Clause seemingly puts solely in the hands of the House of Representatives the power to initiate bills raising revenue. In this signal act of interpretation, however, the Clause suddenly
would not apply to legislation initiated by the Senate (such as Obamacare) that clearly raises revenue (as Judge Rogers concluded Obamacare does) so long as
raising revenue is not foremost in the intentions of Congress in enacting the legislation.
Consequently, the obvious and direct purpose of the Clause would be frustrated by the search for an artificial determination of intentionality, rather than an objective determination of effect. Does the legislation raise revenue? Then Congress must obey the Constitution and follow the Origination Clause. Instead, the artifice -- searching for some other
purpose and assigning a
level of intentionality to it -- moves from the easily dtermined objective examination to the question of motives, a highly subjective search indeed.
The commonsense reading of the Origination Clause lies entirely within your own
grasp. I have offered these blogs not
simply to dictate an outcome to you. Instead, the greater value to be had here
is the empowering of Americans to read, to know, to understand their history,
including their documentary history. A
well-read, understanding grasp of those documents and that history is a
powerful tonic to generations of governmental disregard for the same.
