Tillman on the Origination Clause

Seth Barrett Tillman sends the following comments on the Origination Clause:

The Constitution provides:

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.

U.S. Const. Art. 1, Sect. 7, Cl. 1.

If the House sends a non-revenue bill to the Senate and the Senate amends the bill, and in the process makes the bill a revenue bill, the bill has become a revenue bill per Senate amendment. But that bill for raising revenue still originated in the House (albeit, it first took its character as a revenue bill via Senate amendment).

The Constitution’s text does not demand that bills for raising revenue originate in the House qua as revenue bills, but only that any bill which has the character of a revenue bill prior to final passage must have originated in the House.

It follows that there is no limit at all in regard to the Senate’s amendment power.

Indeed, the Origination Clause states that the Senate’s power (under Article I, Section 7, Clause 1 to amend revenue bills) is coextensive (“as on other Bills”) with the Senate’s power to amend non-revenue bills (under Article I, Section 7, Clause 2). Unless you are willing to argue that the Senate’s power to amend non-revenue bills per Clause 2 is textually limited, then its follows no such limitation exists under Clause 1. Any other view essentially renders Clause 1’s “as on other Bills” language nugatory. And that cannot be right (at least if you are a textualist).

Also, I think there are good prudential reasons (akin to standing and justiciability) for courts to reject Origination Clause challenges: in other words, strong versions of the enrolled bill rule and a wide interpretation of the Speech & Debate Clause are called for here. Why? In the 18th century, parliamentary journals were quite skeletal. They did not generally include either the full text of bills or the full text of amendments (unless very short). In order to make an Origination Clause challenge, the proponent would have either: (1) to reference modern congressional journals or other congressional documents to establish that the amendment process in the Senate went “too far” in some sense; or (2) to subpoena members of Congress or parliamentary staff (the Clerk, the Secretary, the sergeants-at-arms, the door-keeper, and other staff). That’s a truly bad result.

Why? If you go down path (1), you are punishing the majority for being transparent. Then they will stop being transparent. As to (2), congress members are generally exempt from process. Article I, Section 6, Clause 1. (Perhaps, you could get former members?) As to parliamentary staff – they are exempt (as a constitutional matter) from the Constitution’s Article VI oath. I suggest that the reason for that exemption was to avoid this precise situation – to keep an aggressive judiciary from invading and investigating Congress’ internal procedures. Viz: The enrolled bill rule.

The better interpretation of the Origination Clause is that only House members (i.e., the majority) can make use of the clause during inter-house proceedings. And like other rights, it can be waived, but only by those entitled to assert it.