Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”


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.

The Origination Clause and the Fiscal Cliff (updated)

Since the discussion of the issue has been rather muted, it may be worth flagging the potential impact of the Origination Clause, art. I, sect. 7, cl. 1, on how the so-called “fiscal cliff” is resolved. The Origination Clause provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

Let’s begin with efforts to get the House to pass a Senate bill, S. 3412, the “Middle Class Tax Cut Act,” to extend current tax rates on all income brackets except the top two. The bill in question originated in the Senate (as reflected by the Senate bill number) and so would seem to violate the Origination Clause if it is a bill “for raising Revenue.

One might ask whether S. 3412 is a bill “for raising Revenue” given that it does not increase taxes, but merely keeps certain tax rates (which would otherwise automatically increase in 2013) at current levels. However, it appears fairly well-established, at least as a matter of congressional precedent, that the Clause covers all bills relating to raising revenues, not merely those that increase current revenues. The House has long taken the position that it has “sole and exclusive privilege to originate all bills directly affecting the revenue, whether such bills be for the imposition, reduction or repeal of taxes.” 2 Hinds Precedents § 1489 (resolution of 1872). There is some judicial authority in support of this proposition as well. See Armstrong v. United States, 759 F.2d 1378, 1381 (9th Cir. 1985) (“The term ‘Bills for raising Revenue’ does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes.”) (emphasis in original).

House Democrats have sought to force a House vote on S. 3412 through the use of a discharge petition. However, Speaker Boehner observed the other day that any attempt to vote on S. 3412 would face a “blue-slip problem” in the House.  As McKay and Johnson explain (Parliament and Congress 241-42), this is a reference to the procedure the House uses to enforce its prerogatives under the Origination Clause:

The prerogative must be raised and resolved as a question of privilege in the House by disposition of a resolution generally asserting the prerogative without specifying the offending provision and purporting to return the entire Senate bill or amendment to the Senate as an infringement. Debate on the resolution then details the offending matter. ‘Blue-slipping’ is the term applied to the process by which the House returns an offending measure to the Senate, as the resolution if adopted is printed on blue paper. Any Member may offer such a resolution, but it normally is presented by the Chairman of the Committee on Ways and Means as the institutional guardian of the House’s revenue-raising prerogative. Traditionally the House on a bipartisan basis supports the position taken by the Chairman of Ways and Means despite the political acceptability of the measure containing the offending provision.

While S. 3412 appears to violate the Origination Clause, the Senate is not constitutionally barred from taking the initiative now on a revenue bill. This is because the Senate is permitted to propose amendments to revenue bills that have originated in the House. While there are some gray areas with respect to the scope of that authority, there would not seem to be any question of the Senate’s right to take a House bill such as H.R. 8, the “Job Protection and Recession Prevention Act of 2012,” which passed the House on August 1, 2012, and propose the language of S. 3412 as an amendment. (H.R. 8 would extend all of the current tax rates).

Of course, the Senate’s authority in this regard only lasts until January 3, 2013, when the current Congress ends. At that point all legislation introduced in the 112th Congress will expire, and the Senate will have to wait on a new House bill before it can (constitutionally) move revenue legislation.

For more background on the Origination Clause, see this CRS report.


Fiscal Cliff Update (1-1-13): 

The Senate’s action yesterday was to pass H.R. 8 (“American Taxpayer Relief Act of 2012”), as amended. So there is no Origination Clause violation, as far as I can see.

And the House has about 45 hours to act.





And Now For Something Completely Different

This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which 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.” A new constitutional challenge to the Affordable Care Act (aka Obamacare) contends that the statute was enacted in violation of this provision because although the bill had a House Bill number, it actually originated in the Senate. As explained in this Volokh Conspiracy post by Professor Randy Barnett, Senate Majority Leader Harry Reid simply took a House bill, struck out all of the text, and replaced it with a Senate-written bill. A new lawsuit now argues that this “strike and replace” procedure does not satisfy the requirements of the Origination Clause.

Professor Jack Balkin points out that using “strike and replace” or a “shell bill” as a means of formally satisfying the requirements of the Origination Clause has been done on a number of occasions in modern history, including the 1986 Tax Reform Act. He acknowledges that the “original expected application” of the Origination Clause probably did not include using the amendment process to substitute a completely different piece of legislation (after all, the Clause would seem to serve little purpose if this is allowed), but argues that it is literally consistent with the requirements of the Clause.

To which Professor Ramsey responds:

Professor Balkin further argues that strike-and-replace is “formally consistent with Article I, section 7, because the Senate has added an amendment to a tax bill that began in the House.”  I’m not sure that is right.  It depends on the meaning of the word “amendment.”  Is the deletion of one whole bill and the substitution of an entirely new bill properly defined (in ordinary use) as an “amendment”?  The dictionary I have closest to hand says that an “amendment” is “a correction or an alteration … [a] formal revision of, addition to, or change…”  In modern speech, I would think that the word “amendment” might contrast with “substitution” or “replacement.” (Of course, for original meaning what really matters is the 1787-88 definition, if it is different).

Continue reading “And Now For Something Completely Different”