The 'shell bill' game: avoidance and the origination clause.

• Author: Kysar, Rebecca M.
• Position: Abstract through II. The Jurisprudence of the Origination Clause, p. 659-698

ABSTRACT

With increasing frequency, many important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012, begin as "shell bills. " The Origination Clause of the Constitution aims to place decisions over tax policy closer to the people by requiring that bills raising revenue begin in the House of Representatives, but the Clause also allows the Senate to amend such bills. The Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill), and replacing it entirely with its own unrelated revenue proposal. According to a new challenge against the Affordable Care Act, this shell bill game is an unconstitutional sleight of hand because it obfuscates the bill's true origins in the Senate.

The constitutional fate of the Affordable Care Act and myriad other revenue laws, as well as the intra-congressional balance of power over revenue policy, turns on the interpretation of the Senate's power to amend revenue legislation, an analysis heretofore unexplored in the academic literature. This Article draws upon constitutional text, history, and congressional and judicial precedent to conclude that such amendment power is broad and, accordingly, that revenue laws that began as shell bills do not violate the Origination Clause. This Article also proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause--a "legislative process avoidance" doctrine, whereby the Court deflects searching review of lawmaking procedures. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal rules, this legislative process avoidance doctrine further supports deference to the Senate's expansive interpretation of its amendment power without rendering the Clause a nullity. Separation of powers concerns also show the doctrine's promise in other constitutional contexts, such as the interpretation of gaps in the lawmaking process left open by Article 1, Section 7.

TABLE OF CONTENTS INTRODUCTION I. THE ORIGINS OF THE ORIGINATION CLAUSE II. THE JURISPRUDENCE OF THE ORIGINATION CLAUSE A. Judicial Enforceability of the Origination Clause B. The Scope of the Origination Clause 1. Funds for the General Treasury as a Proxy for "Revenue Raising" 2. The Murky Line Between Regulatory and Revenue Raising Taxes a. Analogy to the Taxing Power Cases b. Factors Motivating the Court's Non-Distinction Between Regulatory and Revenue-Raising Taxes C. The Senate's Power to Amend Revenue Legislation 1. The Lack of a Germaneness Requirement 2. The Constitutionality of Shell Bills 3. Amendments Can Alter a Bill's Revenue Effects III. THE THEORETICAL CASE FOR A LEGISLATIVE PROCESS AVOIDANCE DOCTRINE UNDER THE ORIGINATION CLAUSE A. The Rulemaking Clause and its Underpinnings 1. An Expansive Interpretation of the Rulemaking Clause 2. Munoz-Flores and the Rulemaking Power 3. Theories of Judicial Review of the Legislative Process B. The Scope of the Senate's Amendment Power as a Quasi Political Question C. The Continued Effect of the Origination Clause IV. CONSTITUTIONAL ANALYSIS OF THE AFFORDABLE CARE ACT UNDER THE ORIGINATION CLAUSE A. The Enactment of Health Care Reform B. The Individual Mandate and the Scope of the Origination Clause C. The Constitutionality of The Affordable Care Act's Shell Bill Game CONCLUSION INTRODUCTION

To bring decisions over revenue policy closer to the people, the Origination Clause of the Constitution requires that "[a]ll Bills for raising Revenue" begin in the House of Representatives. (1) Congressional practice and judicial decisions interpret the scope of the Clause broadly. (2) The Origination Clause, however, also allows the Senate to "propose or concur with Amendments as on other Bills." (3) The Senate has construed its power to amend revenue legislation liberally, thus reducing the Clause's impact. (4) With increasing frequency, the Senate takes a revenue bill passed by the House (the "shell bill" (5)), strikes the language of the bill entirely, and replaces it with its own revenue bill unrelated to the one that began in the House. Under a narrow view of the Senate's amendment power, this shell bill game is an unconstitutional sleight of hand, obfuscating the bill's true origins in the Senate. Yet it is the path many important pieces of revenue legislation, such as the Affordable Care Act, the American Taxpayer Relief Act of 2012, the Emergency Economic Stabilization Act of 2008, and even the Tax Reform Act of 1986, have followed. (6)

The constitutional fate of these statutes turns on whether the Senate's broad interpretation of its amendment power is correct. On the heels of National Federation of Independent Business v. Sebelius ("NFIB"), (7) a conservative public interest law firm launched another attack against the Affordable Care Act arguing that, in using the shell bill tactic in enacting the Act, Congress unconstitutionally circumvented the Origination Clause. (8) Specifically, the complaint alleged that because the individual mandate raises revenue, which the Court implicitly confirmed in its opinion upholding the mandate under Congress's taxing power, (9) the Act should have originated in the House of Representatives. The D.C. District Court, citing an earlier draft of this Article and largely adopting the interpretive theory of the Senate's amendment power set forth herein, disagreed with this argument and granted the government's motion to dismiss. (10) At the time of this writing, an appeal to the D.C. Circuit Court of Appeals is pending. (11)

In informal writings, some scholars have readily dismissed the Origination Clause challenge against the Affordable Care Act. (12) Ambiguity surrounding the Clause's components, however, exposes the seriousness of the challenge and indeed implicates profound questions concerning the scope of judicial review. No sustained scholarly treatment of the Senate's power to amend revenue legislation exists, (13) and the Court's case law leaves many open questions.

In its most recent interpretation of the Origination Clause, the Court pronounced the general enforceability of the Clause, meaning that it is not simply up to the House to police the Clause. (14) This is a departure from the Court's typical unwillingness to entertain challenges involving internal congressional procedure, (15) yet it is less dramatic than previously understood. In this Article, I demonstrate that the Supreme Court case law under the Origination Clause reveals a pattern: the Court's interpretation of the Clause consistently allows it to avoid intrusion into the legislative process, in recognition of separation of powers concerns and its own institutional limitations.

By identifying as the Court's guide star its reluctance to conduct a searching review of the legislative process, this Article thus proposes a coherent doctrinal framework for analyzing possible challenges under the Origination Clause--a "legislative process avoidance" doctrine. Such an approach is grounded in constitutional text and history, as well as theories of judicial review and longstanding principles that guard congressional purview over the legislative process. (16) Given its intertwinement with congressional procedure and its textual commitment of interpretive authority to Congress, the Origination Clause is a particularly appropriate setting for a legislative process avoidance doctrine. (17) General separation of powers concerns as embodied in the Rulemaking Clause and the political question doctrine, however, also show the doctrine's promise in other constitutional contexts. For instance, the judiciary could invoke the doctrine to defer to Congress in interpreting gaps left open by Article 1, Section 7. (18)

The legislative process avoidance doctrine prescribes that the Court defer to the Senate's interpretation of its amendment power under the Origination Clause, a conclusion that is supported by the Clause's text. The Origination Clause's grant of such power to the Senate "as on other Bills" (19) represents submission to Senate procedure. Moreover, the Senate's broad interpretation of its amendment power is wholly supported by the text and history of the Clause, as well as by congressional and judicial precedent. Thus, even an amendment in the form of a wholesale substitute should and will most likely survive constitutional scrutiny. This would be the case even where the amendment converted the measure from revenue-decreasing or revenue-neutrality to revenue-increasing (as occurred in the Affordable Care Act context).

It is important to clarify that the institutional argument for a legislative process avoidance doctrine in the Origination Clause context is necessarily intertwined with the substantive constitutional analysis of how broadly to construe the amendment power since the textual grant of permission to the Senate to amend "as on other Bills" constitutes deference to that body. In this Article, however, I also canvass additional textual, historical, and precedential arguments to justify the Senate's interpretation. Additionally, I offer theoretical arguments for a legislative process avoidance doctrine that may support its application to situations where the constitutional grant of deference is not so clear.

The approach outlined herein avoids judicial inquiries into the acceptable degree of an amendment's germaneness to the original bill and the revenue effects of a bill amidst a changing macroeconomic environment--all nettlesome endeavors fraught with impracticalities and separation of powers concerns. This broad interpretation of the Senate's power to amend revenue legislation thus continues a trend identified in other constitutional contexts--Congress, not the courts, is the proper avenue for recourse against unfair taxation. (20) Judicial deference to the elected branch in the Origination Clause...