The founders' origination clause and implications for the Affordable Care Act.

• Author: Natelson, Robert G.
• Position: Introduction through III. Founding-Era Legislative Practice: American Constitutions and Legislatures A. American Constitution-Drafting: Background Information, p. 629-669

This Article is the first comprehensive examination of the original legal force of the Constitution's Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate's amendment power.

For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated "tax." The Article concludes that this "tax" was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA's regulatory provisions and appropriations were outside the Senate's amendment power.

INTRODUCTION I. THE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL CONVENTION AND RATIFICATION DEBATES A. The Constitutional Convention B. The Ratification Debates C. Non-Conclusions II. FOUNDING-ERA LEGISLATIVE PRACTICE: THE BRITISH PARLIAMENT A. How Parliamentary Practice Influenced the Founders B. Parliament and the Power of the Purse 1. The Scope of the Term "Money Bill" 2. Hotch-Potch Bills and Tacking 3. The Dispute Over Amendments by the Lords 4. What Was An "Amendment?" C. Summary of British Practice III. FOUNDING-ERA LEGISLATIVE PRACTICE: AMERICAN CONSTITUTIONS AND LEGISLATURES A. American Constitution-Drafting: Background Information B. How the American States Adopted New Rules C. How the American Rules Continued to Evolve D. The Scope of "Amendment" in American Practice E. Summary of American Practice IV. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE REASONS FOR HOUSE ORIGINATION AND THEIR SIGNIFICANCE A. The Policies Behind House Origination B. Significance of the Policies Behind House Origination V. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE SCOPE OF AN "AMENDMENT" A. The Policies Served By the Amendment Qualifier B. How Broad Was the Amendment Qualifier? VI. CONCLUSION: THE ORIGINATION CLAUSE AND SOME IMPLICATIONS FOR THE PPACA INTRODUCTION

This Article reconstructs the original legal force of the Origination Clause. The original legal force of a document or provision in a document is how the courts would have applied it immediately following its adoption. This Article relies on Founding-Era interpretive methods to recover the original legal force. (2)

The Origination Clause is one of several conditions for valid enactment appearing in the same section of the Constitution. (3) Besides House origination of revenue bills, the conditions include passage by both the Senate and the House of Representatives, presentment to the President, and either the President's signature or a subsequent two-thirds approval, on roll call votes, by each chamber of Congress. (4) It is clear from the text that a bill not complying with these procedures is not a valid law. In considering the Origination Clause, the Supreme Court has said as much. (5)

The Origination Clause is immediately relevant because of litigation ensuing from the Supreme Court's decision to sustain as a revenue-raising "tax" (6) the financial penalty for failing to comply with the individual insurance mandate of the Patient Protection and Affordable Care Act (PPACA). (7) Several challengers to the penalty contend that the PPACA effectively arose in the Senate by reason of a substitute bill, (8) rather than in the House, thereby rendering the penalty-tax void for non-compliance with the Origination Clause. (9) In defending the law, the government has responded that substitution of this kind is common within the legislative process and within the Senate's power to amend. (10)

This Article is not designed primarily to address the validity of the PPACA but to define the rules the Founders' Origination Clause imposed on congressional procedures. After the rules are defined, the Article briefly examines their implications for the PPACA controversy.

There has been no comprehensive treatment of the Founders' Origination Clause. Indeed, only a handful of scholars have examined its original meaning, (11) usually as an introduction to later jurisprudence or current issues. Most of their discussion of original meaning has been limited to summary examinations of the views of the Framers and a few other Founders. (12) This approach to originalist research is always problematic but particularly so in the case of the Origination Clause, which has very deep roots in prior history and in legislative practice. As shown by Part I of this Article, the constitutional debates divorced from the larger context tell us very little.

Most prior treatments also suffer from methodological problems common among legal writers untrained in historical method. (13) Perhaps the most serious of these is a form of anachronism: using sources dating from well after the Founding Era as evidence of the constitutional bargain. (14) To avoid anachronism, this Article generally avoids sources arising after May 29, 1790, the day Rhode Island became the thirteenth state to approve the Constitution.

Part I recounts the constitutional debates of 1787-90. This Part covers some of the same ground covered by prior writers, but in richer detail. Part I renders it obvious that even a detailed examination of the constitutional debates, when performed in isolation, leaves key questions unanswered. This is because our record of those debates leaves many of the Founders' assumptions unstated. We can clarify those assumptions only by exploring the Founders' understanding of history and their own experiences.

Part II explains that British parliamentary practice heavily influenced the Founding generation, and investigates how Parliament dealt with issues of origination and amendment. Part III then examines relevant history in America: the pre-Revolutionary constitutional controversies that defined for Americans "Bills for raising Revenue" and the American legislative practice that confirmed the parliamentary meaning of "originate" and of "Amendments." Equipped with this context, Part IV turns once again to the constitutional debates. It identifies the policies behind House origination and the precise meaning and scope of the requirement that "Bills for raising Revenue ... originate in the House of Representatives." Part V does the same for the amendment qualifier: "but the Senate may propose or concur with Amendments as on other Bills."

In addition to defining the meaning of the Origination Clause, Parts I-V demonstrate that the Origination Clause serves as a fixed rule of balance between the chambers of Congress imposed to promote good government and to protect individual liberty. The power of each house to adopt its own internal rules (15) did not include authority to alter the balance between the houses. (16) Finally, the Article's Conclusion summarizes the lessons of the Article and their implications for the constitutionality of the PPACA.

1. THE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL CONVENTION AND RATIFICATION DEBATES

   1. The Constitutional Convention

      The Origination Clause almost did not make it into the Constitution. Neither the Virginia Plan nor the New Jersey Plan contained origination language. This is understandable because the former envisioned both legislative chambers being apportioned by population and the latter envisioned a unicameral legislature. Yet resistance to House origination continued throughout most of the Constitutional Convention.

      On June 13, 1787, after the delegates had been in full session for over two weeks, (17) Elbridge Gerry of Massachusetts moved to "restrain the Senatorial branch from originating money bills." (18) His apparent goal was to encourage larger states to recede from their demand that representation in both legislative chambers be based on population or on property.

      Gerry's proposal ran into a buzzsaw of opposition from the convention's "nationalists." These delegates supported a very strong national government and, by extension, proportionate representation in both chambers. Pierce Butler and Charles Cotesworth Pinkney of South Carolina, James Madison of Virginia, Rufus King of Massachusetts, and even the moderate Roger Sherman of Connecticut all spoke against the proposal. (19) Not only did they reject House origination as compensation, but some claimed it was useless or even harmful. (20) Gerry's motion was trounced, seven states to three.

      Nevertheless, proposals for an exclusive House privilege to initiate money bills recurred several times, usually as appendages to the issue of legislative representation. On July 5, 1787, an ad hoc committee appointed to resolve the issue of legislative representation offered its report. The committee had reached a compromise whereby the lower chamber--or, as it was commonly called early in the proceedings, the "first branch"--was to be based primarily on population while the upper chamber, the "second branch", was to be based on equal representation of states. As compensation to the larger states for agreeing to equal state representation in the Senate, the committee report provided for exclusive House origination of money bills. (21) The report proposed that:

      all bills for raising or appropriating money, and for fixing the Salaries of the Officers of the Governt. of the U. States shall originate in the 1st branch of the Legislature, and shall not be altered or amended by the 2d branch: and that no money shall be drawn from the public Treasury, but in pursuance of appropriations to be originated in the 1st branch. (22) The committee language largely mirrored common depictions of British parliamentary practice. (23)

      Because the advocates of proportionate representation were holding out for proportionate representation, they were...