The Origination Clause II: Die Harder with a Vengeance, ObamaCare!By Daniel Smyth
A U.S. district court could soon decide if the Pacific Legal Foundation's (PLF) case against ObamaCare will continue in the U.S. court system. PLF alleges that ObamaCare is unconstitutional because it violates the Origination Clause, which reads, "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."
In June 2012, the Supreme Court ruled that most of ObamaCare is constitutional under Congress' tax power. According to PLF, this ruling means that ObamaCare was a bill for raising revenue. PLF alleges that the Senate originated ObamaCare by "amending" a House bill titled the Service Members Home Ownership Tax Act of 2009. Among other decrees, this act granted tax credits to service members seeking their first homes. The Senate's amendment completely replaced the title and text of the Service Members act with ObamaCare, leaving only the bill's label of "House Resolution (H.R.) 3590." PLF, which calls such an amendment the "gut-and-amend" procedure, contends that the House and not the Senate should have originated ObamaCare.
In defense of ObamaCare, the Department of Justice (DOJ) argues that "the Senate may amend a House bill in any way it [the Senate] deems advisable, even by amending it [the bill] with a total substitute, without running afoul of the Origination Clause." DOJ further argues that ObamaCare wasn't a bill for raising revenue because ObamaCare's main purpose is to improve the U.S. health care system and not to raise revenue.
PLF isn't challenging DOJ's claim that the Senate can amend a House bill that isn't a bill for raising revenue by completely replacing the bill's title and text: "[PLF] does not challenge the gut-and-amend procedure generally." PLF is challenging only "the constitutionality of a bill for raising revenue [ObamaCare] which originated in the Senate through the use of ... [the gut-and-amend procedure]." However, if the U.S. district court rules that ObamaCare wasn't a bill for raising revenue, then PLF's case could appear doomed. To strengthen PLF's case, this article argues that according to the Origination Clause, the Senate can't amend any House bill, whether a bill for raising revenue or not, with the "gut-and-amend" procedure.
Article 1, Section 5 of the Constitution reads, "Each House may determine the Rules of its Proceedings." This provision gives the Senate and House control over their rules of proceedings, including how the respective chambers handle bill amendments in general. In the Senate and House, the current rules of procedure actually allow one chamber's amendment on another chamber's bill to completely replace the bill's title and text. Congress calls such an amendment an "amendment in the nature of a substitute" or a "complete substitute."
However, the Supreme Court has held that, while Congress has much latitude in establishing its rules of proceedings, these rules can't violate a part of the Constitution. And as I've argued in a previous article, the Origination Clause requires that any Senate amendments on House bills, whether bills for raising revenue or not, be parts and not complete replacements of bills.
For this discussion, the relevant portion of the Origination Clause is "the Senate may propose ... amendments as on other Bills" (emphasis added). As I noted in my previous article, in more complete language, this portion appears to read, "the Senate may propose ... amendments on House bills for raising revenue as on other Bills." Thus, the Origination Clause says any Senate amendments must be "on" House bills for raising revenue and all other House bills.2 It's important to note that this relevant portion of the Origination Clause doesn't read, "[T]he Senate may propose ... amendments as determined by the Rules of its Proceedings," or even "[T]he Senate may propose ... amendments as the Senate can do with other House bills." Clearly, the Origination Clause's phrase of "on ... Bills" is important and has a limiting purpose.
I've argued before that according to Samuel Johnson's A Dictionary of the English Language (1755), the most widely used dictionary at the Constitution's ratification, the Founders understood "on" to mean, among other definitions, "noting addition or accumulation" and "noting dependence or reliance." The Founders understood a "bill" to be "a law presented to the parliament [or congress], not yet made an act," with a "law" being "a rule of action" or "a decree, edict, statute, or custom, publically established as a rule of justice." Thus, according to the Founders, a Senate amendment on a House bill must be an addition or attachment to a House "rule of action, decree, edict, statute, or custom." As an amendment, ObamaCare wasn't an addition or attachment to a "rule of action, decree, edict, statute, or custom" from the House's Service Members Home Ownership Tax Act of 2009. Therefore, ObamaCare violates the Origination Clause.
Of course, the Origination Clause's main purpose isn't to specify the congressional procedure to amend bills. As PLF notes, the Founders included the Origination Clause in the Constitution to keep the power to raise taxes strictly in the House, which, with its elections every two years in local districts, is the chamber of Congress most accountable to voters. Nevertheless, the Origination Clause's phrase of "on ... Bills," although a subtle command that Senate amendments on House bills be parts and never replacements of House bills, is a part of the Constitution's text.
This article's view that Senate amendments on House bills must actually be "on ... Bills" is consistent with the procedures for bill amendments between chambers in Thomas Jefferson's A Manual of Parliamentary Practice: For the Use of the Senate of the United States. Jefferson published this manual in 1803. From 1797 to 1801 he used his manual as, in his role as vice president of the United States, presiding officer of the Senate.
During this time, members of Congress had much uncertainty about the best practices for congressional procedures. As the Founders modeled the U.S. Congress on the British parliament, Jefferson's manual prescribes British parliamentary practices that he felt were relevant to the U.S. Congress. Many scholars actually view Jefferson's manual as the best publication on British parliamentary practices for that time. Thus, Jefferson's manual can help illuminate which British parliamentary practices, such as procedures for bill amendments between chambers, the Constitution may have preserved. Aside from the Constitution itself, Jefferson's manual may be the best Founding-era source to discover the Founders' understanding of what could be bill amendments between chambers.
Discussing in-chamber amendments on bills, such as senators' amendments on other senators' bills, Jefferson said there's much latitude for what can constitute an amendment. For instance, Jefferson said that "[a]mendments can be made ... to totally alter the nature of the proposition" and that "a new bill may be ingrafted by way of amendment[.]" However, when discussing one chamber's amendments on another chamber's bills, such as Senate amendments on House bills, Jefferson makes no reference to the possibility that one chamber's amendment can completely replace the title and text of another chamber's bill. Rather, Jefferson stated that "[w]hen either House ... sends a bill to the other, the other may pass it [the bill] with amendments" (emphasis added). Jefferson's specification that "the other may pass it [the bill] with amendments" may highlight the British parliament's practice for bill amendments that the Founders were prescribing for Senate amendments on House bills by including the phrase "on ... Bills" in the Origination Clause.
Johnson's dictionary defined "with" as in "pass it [the bill] with amendments" as, among other definitions, "in [the] company of," "in partnership," "noting connection," "upon," and "in appendage; noting consequence or concomitance." According to Johnson, "concomitance (or concomitancy/concomitant)" meant "together with another thing" and "conjoined with; concurrent with; coming and going with, as collateral." So according to Jefferson's manual, one chamber's amendment on another chamber's bill must be "in [the] company of" or "conjoined with" the bill and can never completely replace the bill. It's perhaps telling that Jefferson's discussion of bill amendments between chambers didn't contain any of the following statements:
This article's view that Senate amendments on House bills must actually be "on ... Bills" is also consistent with the First Congress' Joint Rules of the Two Houses, which the Senate and House passed in 1789. The Senate and House agreed to these rules under their power in Article 1, Section 5 of the Constitution to determine their rules of proceedings, and these joint rules were Congress's first. The Joint Rules of the Two Houses' rule regarding bill amendments, which lasted until 1876, mostly described how to settle differences between chambers regarding an amendment and not what could constitute a bill amendment. The joint rule reads as follows (emphasis added):
However, notice that this joint rule for bill amendments contains no language suggesting that "an amendment of a bill" between chambers can completely replace a bill's title and text. In fact, the most relevant definition from Johnson's dictionary of the word "of" in the context of "an amendment of a bill" appears to be "concerning; relating to." This definition indicates that one chamber's amendment "of" another chamber's bill must be part of the bill and can't become a complete substitute of the bill.
The Origination Clause's requirement that Senate amendments on House bills actually be "on" House bills, whether bills for raising revenue or not, is a subtle constitutional requirement regarding congressional proceedings. However, given the original meaning of the Origination Clause's phrase of "on ... Bills" that this article articulates, this requirement is clear. Also, this requirement is consistent with the procedures for bill amendments in Jefferson's Manual of Parliamentary Practice from 1803 and the joint rule between the Senate and House regarding bill amendments that lasted from 1789 to 1876.
Of course, legal scholars should obtain more evidence from the Founding era, such as Founders' discussion of bill amendments before the Founding and further discussion of British parliamentary practices regarding bill amendments between houses, to verify this article's claims. Nevertheless, according to this article, ObamaCare wasn't an amendment "on" a House bill for raising revenue or any other House bill. Thus, contrary to DOJ's claims, ObamaCare runs afoul of the Origination Clause. PLF should start making this argument.
Daniel Smyth is co-founder and editor of LibertyBlog.org.
1As the Senate and House are equal chambers of Congress, one could argue that the Origination Clause's requirement that Senate amendments must be "on" House bills also requires House amendments to be "on" Senate bills.
2Researcher's Note: I obtained this joint rule from the Journal of the House of Representatives of the United States, which, along with the Journal of the Senate of the United States of America, may be the best record of the First Congress's proceedings. See the House's journal entry on April 17, 1789.
Some congressional records don't list this joint rule regarding bill amendments as a rule from 1789's Joint Rules of the Two Houses. However, this discrepancy may be because of poor recordkeeping in Congress. One example of a poor congressional record is this Senate record (scroll to page 4) from 1790 that lists 1789's Joint Rules Between the Houses but excludes the joint rule regarding bill amendments. I obtained this Senate record from Early American Imprints.
Regardless, later congressional records, such as this entry (see footnote 2) from Hinds' Precedents of the House of Representatives of the United States, Volume IV (1907), list this joint rule regarding bill amendments as originating from 1789. Thus, it's clear that Congress passed this joint rule in the First Congress.
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