The Origination Clause III: ObamaCare's a Good Amendment to Die Hard
In June 2013, Judge Beryl Howell of the U.S. District Court for the District of Columbia dismissed the Pacific Legal Foundation (PLF)'s case that ObamaCare violates the Constitution's Origination Clause. This clause 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."
PLF's lawsuit alleged that ObamaCare violates the Origination Clause's first half because the Senate and not the House originated ObamaCare, a bill that raises revenue by billions of dollars. 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." Congress calls such an amendment an "amendment in the nature of a substitute" or a "complete substitute."
Judge Howell's ruling, which PLF is appealing, declared that ObamaCare isn't a bill for raising revenue, so the Senate could originate it. She also held that the Senate had the power to completely replace the Service Members act with ObamaCare. According to Judge Howell, the Origination Clause's second half, which reads, "[T]he Senate may propose ... amendments ... on ... [House] Bills," grants the Senate power to amend any House bill. She further claimed that this amending power permits the Senate to replace House bills with complete substitutes because, according to the Constitution, Congress can "determine the Rules of its Proceedings."
Why Judge Howell is Likely Wrong
However, Judge Howell failed to consider important points in my previous articles on the Origination Clause and ObamaCare (here and here). These articles argue that the Founders understood the Origination Clause's second half to prohibit houses from amending each other's bills with complete substitutes. For one, these articles examined the definition of "on," as in Senate amendments "on ... Bills," in Samuel Johnson's A Dictionary of the English Language (1755). This dictionary was the most widely used dictionary at the Constitution's ratification. According to Johnson, "on" meant "noting addition or accumulation" and "noting dependence or reliance." Thus, a Senate amendment "on" a House bill must be an addition to or dependent on the bill, so as to be attached to or a part of the bill.
I also argued that, although Congress has the power to "determine the Rules of its Proceedings," these rules can never violate a part of the Constitution. Thus, no rule of proceeding allowing amendments between houses to be complete substitutes could supersede the Origination Clause's requirement that Senate amendments be "on ... Bills."
New Research Question
Nearly all scholarship on the Origination Clause focuses on the Origination Clause's first half. This scholarship details how the British practice of allowing only the House of Commons, the equivalent of the House of Representatives, to originate money bills inspired the Origination Clause's first half.
But with the Origination Clause's second half, could the Founders have preserved a British prohibition against amendments by houses on each other's bills that are complete substitutes?1 The drafters of the Origination Clause's second half borrowed the language word for word from the Massachusetts Constitution of 1780.2 John Adams, an ardent student of British parliament and philosophy, drafted the entire Massachusetts Constitution. According to Professor James McClellan, the U.S. Constitution, based largely on the Massachusetts Constitution, is "rooted in British practices and customs."
I argue that the Founders likely did preserve the British prohibition mentioned above by examining two of the most authoritative sources on British parliamentary practices in the 1700s. First, I examined Thomas May's A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament (1844). This treatise is the most authoritative source on parliamentary procedures in the 1800s.3 However, this publication also discusses many of the parliamentary practices of originating and passing bills in effect in the 1700s.4
Second, I examined the 23 volumes of Cobbett's Parliamentary History of England that cover 1688 to 1789, the century before the Founding.5 Although not published until the 1800s, Cobbett's Parliamentary History is the best source of parliamentary debates between 1066 and 1803. Cobbett incorporates information from a variety of historical sources about British parliament, including the journals of the House of Lords and House of Commons.6
Note that I didn't examine John Hatsell's four-volume work titled Precedents of Proceedings in the House of Commons. This work was the most prominent publication on parliamentary procedures in the late 1700s.7 None of his volumes discussed procedures for originating, passing, or amending bills that are relevant to this article. His topics included "Privilege of Parliament" (1776), "Members, Speakers, &c." (1781), "Relating to Lords, and Supply" (1784), and "Conference, and Impeachment" (1796). Hatsell intended to write a volume about the passing of bills, but he never published this work.8
May's A Treatise
May's A Treatise doesn't discuss whether amendments by houses on each other's bills could be complete substitutes.9 However, May's discussion of many of the procedures for originating and passing bills in effect in the 1700s is illuminating.
A bill originating in a given house in the 1700s usually had to begin in the originating house's "committee of the whole house." Among other procedures to get passed in each house, all bills had to be read three times and, after the second reading, sent to a committee for examination and possible amendment. The second reading of a bill was "regarded as the most important stage through which the bill must pass; for its whole principle ... [was] then at issue, and ... [was] affirmed or denied by a vote of the house."
These procedures apparently disallowed houses from proposing complete substitutes to each other's bills. If a bill were to have originated as a complete substitute, then this bill would have skipped some steps in both houses, such as having first and second readings, required for origination and approval.
Cobbett's Parliamentary History
In the 23 volumes of Cobbett's Parliamentary History covering the century before the Founding, I discovered 3,000 mentions of "amend." But I found no examples of one house amending another house's bill with a complete substitute. In fact, three passages from debates on various bills declared or suggested that parliamentary procedure prohibited such an amendment.
The most revealing example occurred in 173610 when the Lords received the Commons' "Bill for the more easy recovery of the Tythes, Church Rates, and other Ecclesiastical Dues, from the people called Quakers." After the second reading by the Lords of this bill, a lord whose name Cobbett's Parliamentary History doesn't mention said the following to oppose the bill:
... I think it impossible to make a proper Bill of that we have now before us, without altering the whole, which, according to our methods of proceeding, cannot be done in the committee; for as the Bill would then be a new Bill, it could not be pretended that such a Bill had been twice read, then committed, and after that read a third time, which is the method of passing Bills constantly observed in this House.
Other lords who debated this Quaker bill agreed with the above assessment. For example, one lord proposed an amendment that would "be but a small and an easy amendment to the Bill; it will be very far from making it a new Bill."
Another revealing example was from 1743,11 when the Lords debated the Commons' bill "For repealing certain Duties on Spirituous Liquors, and on Licences for retailing the same; and for laying other Duties on Spirituous Liquors, and on Licences for retailing the said Liquors." The Earl of Ilay of the House of Lords declared that the lords should consider the bill as follows (emphasis added):
If it be a Bill your lordships think essentially wrong, or such a one as cannot be amended so as to make it a useful Bill, you reject it upon a second reading: if it be a Bill which you think may be amended, so as to make it a good bill, you go through it in the committee, and if after having there made all the amendments you can, it appears still to be a defective or inconvenient Bill, you throw it out upon the report, or upon the third reading.
Notice that the Earl of Ilay says the Lords could amend the Commons' bill to make it "useful" or "good," but not to make it a different bill.
The third example was in 1719,12 when the Commons considered the Lords' "Act for the Settling [sic] 'the Peerage of Great Britain.'" Sir Richard Steele of the Commons said that this (emphasis added) "unreasonable Bill will be entirely rejected, since none can pretend to amend what is in its very nature incorrigible ... it would be in vain to attempt a good superstructure, upon a foundation which deserves nothing but indignation and contempt." If the Commons could amend the Lords' "unreasonable Bill" by replacing it with a "different and reasonable Bill," then surely Steele would have said the Commons could do so. The Commons rejected the bill.
Nevertheless, according to Cobbett's Parliamentary History, there were several examples of amendments by houses on each other's bills that involved replacements or modifications of many or most parts of the given bills.
For example, in 1692,13 the Lords made "very many amendments" on the Commons' "Bill for regulating Trials, in cases of Treason." The Commons "agreed to all those Amendments, except the two last." In 1744,14 the Lords made "so many alterations" to the Commons' "Bill for making it Treason to hold Correspondence with the Sons of the Pretender to his majesty's crown" that "[the bill's] original intention ... [was] almost forgotten." The Lords even amended the bill's title, and the Commons agreed to all of the Lords' amendments. And in 175315, Mr. William Beckford of the Commons said the following after the Commons "almost entirely altered" the Lords' "Bill for the better preventing of Clandestine Marriages":
[W]hat may constitute a Bill to be the same or a new Bill, is a question that may admit of some disputes, and a question, I think, not very material; but if seven new clauses added to a Bill which at first consisted but of sixteen, and every one of those it consisted of at first very much altered, does not make it a new Bill, I am sure, it shews [sic], that the Bill, as sent down to us [from the Lords], was a very inconsiderate and imperfect Bill[.]
The Lords agreed to all of the Commons' amendments on this marriage bill.
Judge Howell was likely wrong to have dismissed PLF's lawsuit against ObamaCare for, among other reasons, not violating the Origination Clause's second half. As mentioned earlier, this half reads, "[T]he Senate may propose ... amendments ... on ... [House] Bills."
As a Senate amendment, ObamaCare completely replaced the House's Service Members act. And as my previous articles demonstrate, the original meaning of the Origination Clause's second half appears to prohibit houses from amending each other's bills with complete substitutes. Furthermore, according to this article's discussion of May's A Treatise and Cobbett's Parliamentary History, it's likely that the Origination Clause's second half preserved the British parliament's prohibition against complete substitutes. This article suggests that this prohibition's purpose was to prevent bills from skipping steps in both houses required for origination and approval, such as having first and second readings and going to committees for examination and possible amendment.
Of course, legal scholars should obtain more evidence from the Founding era, such as the understanding of the Constitution's ratifiers of amendments on bills between houses, to verify my claims. Nevertheless, this article appears to solidify my previous articles' argument that the Origination Clause's second half prohibits complete substitutes.
1 As I've argued before, the fairest reading of the Origination Clause's second half is, in more complete language, "the Senate may propose ... amendments on House bills for raising revenue as on other Bills." Recently, Professor Rebecca Kysar argued that the Origination Clause's second half "represents submission to Senate procedure," as if it reads, "[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." See Rebecca Kysar, "The 'Shell Bill' Game: Avoidance and the Origination Clause," Washington University Law Review 91: 6, 34-35, 2014 (forthcoming). However, Kysar's reading appears wrong, as it's likely that the Origination Clause's phrase of "on ... Bills" is important and requires that amendments be "on ... Bills" and never "new bills."
2 Max Farrand, ed., The Records of the Federal Convention of 1787, Vol. II (New Haven: Yale University Press, 1937), p. 552.
3 Sheila Lambert, Bills and Acts: Legislative Procedure in Eighteenth-Century England (London: Cambridge University Press, 1971), p. 28.
4 Thomas May, A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament (London: James & Luke J. Hansard, 1844), p. 272, 276, 279. The parliamentary procedures discussed in this article's section on May's A Treatise were also procedures that were in effect in the late 1600s. See George Petyt, Lex Parliamentaria: Or, A Treatise of the Law and Custom of the Parliaments of England (London: Printed for Tim Goodwin at the Maiden-head over against St. Dunstans Church in Fleet-street, 1690), p. 179, 182-187; Lambert, Bills and Acts, p. 17-18.
5 Researcher's Note: The Oxford Digital Library has digital copies of Cobbett's Parliamentary History, but these copies don't permit keyword searches, such as for "amend." However, Google has digitalized all volumes of Cobbett's Parliamentary History. For instance, volume 5, which covers 1688 to 1702, is available here. I used the optical character recognition (OCR) feature of the software program Adobe Acrobat 9 Pro Extended on each volume to permit keyword searches. My analysis required that I examine 23 volumes of Cobbett's Parliamentary History, totaling 15,000 pages, and this task was manageable.
6 Researcher's Note: Ideally, I would have also examined the Journal of the House of Lords and the Journal of the House of Commons for discussions of amendments by houses on each other's bills. These journals keep minutes of nearly all parliamentary actions and debates, and these journals are perhaps the most authoritative source on British Parliamentary practice. However, although the Journal of the House of Lords between 1688 and 1789 is available in British History Online, a searchable database, the Journal of the House of Commons during this time period is unavailable. Also, these journals contain an enormous amount of information that would require numerous keyword searches to discover discussions of amendments between houses. It was unmanageable for me to use the technique in the above Researcher's Note to download the Google copies of the relevant journals of the House of Commons and use Adobe Acrobat's OCR feature to permit keyword searches. For one, Adobe's PDF files don't permit searches of multiple keywords at the same time, such as "amend AND complete AND substitute." In just the Journal of the House of Commons from 1699 to 1702, there were 1,140 mentions of "amend." Thus, it'd be difficult to discover the journals' discussions of amendments between houses. Regardless, the evidence I obtained from Cobbett's Parliamentary History regarding complete substitutes appears sufficient to make tentative conclusions about their permissibility in Parliament during the 1700s.
7 Lambert, Bills and Acts, p. 16, 28.
8 Ibid., p. 28.
9 See, for example, May, A Treatise, p. 288-290.
10 William Cobbett, Parliamentary History of England, Vol. 9, 1733-1737 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1811), p. 1165-1166, 1179, 1196, 1207.
11 William Cobbett, Parliamentary History of England, Vol. 12, 1741-1743 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1812), p. 1191, 1246, 1247.
12 William Cobbett, Parliamentary History of England, Vol. 7, 1714-1722 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1811), p. 609, 615-616, 624.
13 William Cobbett, Parliamentary History of England, Vol. 5, 1688-1702 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1809), p. 691-692.
14 William Cobbett, Parliamentary History of England, Vol. 13, 1743-1747 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1812), p. 705, 806, 858-859, 895.
15 William Cobbett, Parliamentary History of England, Vol. 15, 1753-1765 (London: T.C. Hansard, Peterborough-Court, Fleet-Street, 1813), p. 1, 32, 69, 86.