[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE ORIGINAL MEANING OF
THE ORIGINATION CLAUSE
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
APRIL 29, 2014
__________
Serial No. 113-73
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Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
MARK AMODEI, Nevada JOE GARCIA, Florida
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
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Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia JERROLD NADLER, New York
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida HENRY C. ``HANK'' JOHNSON, Jr.,
JASON T. SMITH, Missouri Georgia
TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
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APRIL 29, 2014
Page
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 3
WITNESSES
Nicholas M. Schmitz, Stanford University, Stanford, CA
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Paul D. Kamenar, Attorney-at-Law, Washington, DC
Oral Testimony................................................. 24
Prepared Statement............................................. 27
Joseph Onek, Principal, The Raben Group, Washington, DC
Oral Testimony................................................. 35
Prepared Statement............................................. 37
Todd F. Gaziano, Executive Director of the D.C. Center, Pacific
Legal Foundation, Washington, DC
Oral Testimony................................................. 41
Prepared Statement............................................. 43
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 81
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 83
THE ORIGINAL MEANING OF
THE ORIGINATION CLAUSE
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TUESDAY, APRIL 29, 2014
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10:07 a.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Jordan, Chabot, King,
Gohmert, DeSantis, Cohen, Nadler, Scott, and Johnson.
Staff present: (Majority) Zachary Somers, Counsel; Tricia
White, Clerk; (Minority) James J. Park, Minority Counsel; and
Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order. And without objection, the Chair is
authorized to declare recesses of the Committee at any time.
I want to welcome all of you here today, the Members and
the witnesses. And I especially want to welcome our new Ranking
Member, Congressman Steve Cohen from Tennessee. He and I have
served together for many years, and I have a great deal of
respect and affection for Congressman Cohen and look forward to
working with him. Welcome.
The first clause of Article 1, Section 7 of the United
States Constitution provides that ``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.'' This clause, commonly referred to as the origination
clause, was designed by the Constitution's framers to bring the
power to tax closer to the people by giving them control over
initiating revenue legislation to their immediate
representatives, members of the House of Representatives, who
are elected every 2 years.
The framers viewed the origination clause as critical
protection against government abuses and the creation of an
aristocracy in America. The power to tax is one of the most
fundamental operations of a sovereign and one of the most
dangerous to liberty. As Chief Justice John Marshall famously
observed, ``The power to tax involves the power to destroy.''
Simply put, the origination of revenue bills is not a small
or marginal issue. Indeed, the need for a just tax system was
the moral justification for our entire War of Independence. Its
importance was expressed through the Virginia House of
Burgesses, the Stamp Act Congress, and the First Continental
Congress, all of whom petitioned the Crown and the parliament
in England for redress of their tax grievances.
It was with these realities in mind that the origination
clause of our Constitution was written. The clause was,
according to Massachusetts Convention delegate Elbridge Gerry,
``the cornerstone of the accommodation'' of the Great
Compromise, 1787. Thus, without the origination clause at the
core of the Great Compromise, the Constitution as we know it
today would not have come into being at all.
When the framers wrote the Constitution, they knew it was
vital that the power to raise and levy taxes originate in the
people's House, whose Members are closest to the electorate
with 2-year terms rather than in the Senate where the members
sit unchallenged for 6-year terms, who do not proportionately
represent the American population, and who already enjoy their
own unique and separate Senate power granted to them in the
Constitution. As George Mason observed during a debate in the
Constitutional Convention, ``Should the Senate have the power
of giving away the people's money, they might soon forget the
source from whence they received it. We might soon have an
aristocracy.''
I have called today's hearing to examine the roots of the
origination clause, its original meaning and purpose, and to
see where the origination clause stands today over 225 years
after the Great Compromise. I am concerned that over time the
original meaning of the clause has been set aside and the
protections the clause affords to American taxpayers have been
severely eroded.
Instead of a robust check on the powers of the Federal
Government over the people, I am troubled that the clause has
become a mere formality in practice, a formality that may be
dispensed with as easily as the Senate taking any bill that
originated in the House and striking the entire text of that
bill and replacing it with a ``bill for raising revenue,'' no
matter how non-germane the Senate's amendment is to the
original House-passed measure. Now, this sort of procedure
ignores the framers' intent, and if allowed to stand, it
renders the origination clause of our Constitution a dead
letter.
And I look forward to the witnesses' testimony on this
important subject. I hope it helps us all inform the members of
this Congress and of the House more generally of the
fundamental importance of the origination clause to our
constitutional system. For the responsibility of enforcing the
origination clause rests in the first instance right here in
the House of Representatives.
If we as Members of the House, who took a solemn oath to
support and defend the Constitution, including its origination
clause, fail to defend this right and responsibility as the
immediate representatives of the people and most accountable to
them, we dishonor and fundamentally abrogate our sworn oath to
support and defend the Constitution of the United States from
all enemies foreign and domestic.
With that, I would now recognize the Ranking Member for an
opening statement.
Mr. Cohen. Thank you, Mr. Chairman. It is indeed my first
meeting as Ranking Member of this Subcommittee, and I am
honored to serve in this position and honored to serve with
you. And we had a good relationship as Chair and Ranking Member
of the Subcommittee on Commercial and Administrative Law during
the 111th Congress, and we will work together here.
Of course, this hearing is on the original meaning of the
origination clause. It plays an important role in ensuring that
the people's House has the first say when it comes to bills
raising revenue. We are the House closest to the people and
always have been, but not necessarily like it was when the
framers framed the Constitution, and I think that is an issue
that I do not think anybody touches on. And maybe I am wrong,
but we will throw it out there.
The Constitution reflects a whole bunch of compromises to
bring about the great document that served the original States
and regions of our country which were mostly on this side of
the Mississippi River. The makeup of the Congress itself, the
House was 2-year terms, the Senate 6-year terms; the House
closer to the people elected by population, the Senate by
States. And the smaller States have got their clout in the
Senate, and then the larger States have more representation
obviously in the House where it is by population.
And the origination clause was a balancing of those
interests to give the House, with its roots there with the
people and origination, the opportunity to originate all these
revenue bills. And that is great politics and great theory. It
also gave the Senate in the balancing act the power to propose
concurrent amendments as in all of the bills. You cannot get
anything done without both Houses, the House and the Senate. So
the Senate does get to vote and approve, et cetera, et cetera,
et cetera.
But, of course, when this came around, this was all before
the 17th Amendment, and the Senate was a bunch of guys that
were--and they were all guys--that were picked by their State
legislatures to basically be the voices of the powers that be
in the State legislature, the governors, the speakers of the
House and the Senate. So it made a lot of sense then really
that these guys who were, in many ways, lackeys of the State
house, were not to originate bills requiring people to fork out
their money, their taxes, to fund the government.
But that has changed. It changed in the 20th century when
we required the Senate to be elected by the people and took
away the yoke of the State capitol from their necks, because
that is all the senators were basically lackeys of the State
legislative Capitol Hill gang in each State. They picked the
guys. They were wealthy guys they liked and they wanted to give
them an opportunity to go to Washington and have some say as a
senator. They protected the interests of the State, but really
they protected the interests of the State's interests--the
speakers, the governors, the guys that ran the show, the
Tammany Halls in Albany. They picked their own guys. And
certainly they should not have the right to originate revenue
bills because that would be almost like England, unelected
people, because they were not elected. They were chosen. So you
have got to view all of this in that context, and we have
performed it and changed it, and the senators are now human
beings, not chattels of State capitols. Free will.
Some observers say that the origination clause is in peril.
These observers, including some of our witnesses today, allege
that Congress did an end run around the origination clause when
it passed the Patient Protection and Affordable Care Act, and
particularly the individual mandate and the shared
responsibility payment. It will be made more evident during our
discussion today, but neither the facts nor the law support
this assertion, although people can argue such. And that is why
we have cases, and that is why we have lawyers even on sides
that are bound to lose.
Supreme Court precedent and congressional practice make
clear that a bill with a primarily non-revenue purpose is not a
bill for raising revenue within the origination clause's
meaning even if the bill raises revenue so long as the revenue
supports the government programs. So the Supreme Court
precedent both for primarily non-revenue purpose--giving people
healthcare and saving them from the final destination for some
period of time--is not a bill just simply to raise revenue.
Here the Supreme Court concluded in 2012 in National
Federation of Independent Business v. Sebelius--the late
Sebelius--the Affordable Care Act had the primary purpose of,
among other things, expanding health insurance coverage. And
the individual mandate and shared responsibility payment was
the key to meeting this goal. I should note for context
purposes that it is a little over a week away from the U.S.
Court of Appeals, the D.C. circuit, hearing of oral arguments
in Sissel v. HHS, where the plaintiff, Sissel, challenges the
constitutionality of the Affordable Care Act on origination
clause grounds. And I question whether the best use of our
resources right now--of course I am the Ranking Member so all I
can do is question that--is to have a hearing on a matter that
is not yet heard by the D.C. Circuit court. But we are here,
and I look forward to the discussion.
It is interesting. I read a Juan Williams op-ed, and I
cannot remember the man's name, but it was germane and central
to the Romneycare proposal. And he said that the Affordable
Care Act and Romneycare were really basically the same thing,
and it is just all about messaging. And that it has been
messaged that the Affordable Care Act has not been successful.
The message was that Romneycare was successful.
And so, people kind of think Romneycare was successful and
the Affordable Care Act maybe was not, but that if it was not
for the messaging, everyone would have embraced it and liked
it, and realized it was the same thing that the Republicans
brought forward as an alternative to Hillarycare, and it was
Romneycare. But the followers of Romney have vilified and
attacked the Affordable Care Act. Interesting that the same
subject matter could be viewed and messaged in different
things, and this is a perpetuation, continuation, of that same
messaging program.
With that, I yield back the rest of my time.
Mr. Franks. And I thank the gentleman. And without
objection, the other Members' opening statements will be made
part of the record.
So let me now introduce our witnesses. Our first witness is
Nicholas Schmitz. Mr. Schmitz is a graduate of the United
States Naval Academy and has a graduate degree in political
theory and philosophy from Oxford University, where he studied
as a Rhodes Scholar. Mr. Schmitz is currently pursuing his
second graduate degree at Stanford University.
After graduating from Oxford, Mr. Schmitz served as an
infantry officer in the United States Marines in Helmand
Province in Afghanistan, before spending the last several years
on the teaching faculty in the political science department at
the Naval Academy. Mr. Schmitz is the author of the Law Review
article ``The Origination Clause: Meaning, Precedent, and
Theory, from the 12th to the 21st century.'' We are glad you
are here, sir.
The second witness is Paul Kamenar. Mr. Kamenar is an
attorney with over 35 years' experience litigating cases in the
U.S. Supreme Court and lower Federal courts raising important
constitutional, statutory, and public interest issues. He is
also a senior fellow of the Administrative Conference of the
United States.
Mr. Kamenar was formerly a clinical professor of law at
George Mason University School of Law, an adjunct professor at
Georgetown University Law Center, and senior executive counsel
at the Washington Legal Foundation where he represented over
250 Members of Congress in original amicus curiae litigation in
dozens of cases, and testified before Congress on numerous
occasions. Welcome, sir.
Our third witness is Joe Onek. Mr. Onek is a principal at
the Raben Group. He has experience working in all three
branches of government, including most recently as senior
counsel to Speaker Nancy Pelosi. Additionally, Mr. Onek served
as an associate director on the White House Domestic Policy
Staff and later as the deputy counsel during the Carter
Administration, and during the Clinton Administration as the
senior coordinator for rule of law at the State Department, and
principal deputy associate attorney general at the Department
of Justice. After graduating from law school, he clerked for
Justice William Brennan on the United States Supreme Court.
Thank you, sir, for being here.
Our final witness is Todd Gaziano. Mr. Gaziano is executive
director of the D.C. Center and senior fellow in constitutional
law at the Pacific Legal Foundation. Prior to joining to
Pacific Legal Foundation, he served in the Justice Department's
Office of Legal Counsel where he provided advice to the White
House and four attorneys general on constitutional matters. He
was a Chief Subcommittee Counsel in the U.S. House of
Representatives, and was the founding director of Heritage
Foundation's Center for Legal and Judicial Studies. From early
2008 to December 2013, he served as an appointee of the House
of Representatives on the U.S. Commission on Civil Rights. And
thank you again for being here, Tom.
Now, each of the witnesses' written statements will be
entered into the record in its entirety, and I would ask each
witness to summarize his testimony in 5 minutes or less. And to
help you stay within that time, there is a timing light in
front of you. The light will switch from green to yellow
indicating that you have 1 minute to conclude your testimony.
When the light turns red, it indicates that the witnesses' 5
minutes have expired.
And before I recognize the witnesses, it is the tradition
of the Subcommittee that they be sworn. So if you would please
stand.
[Witnesses sworn.]
Mr. Franks. Please be seated. Let the record reflect that
the witnesses answered in the affirmative.
I would now recognize our first witness, Mr. Schmitz.
Please turn your microphone on, Nicholas--Mr. Schmitz--before
you speak there.
TESTIMONY OF NICHOLAS M. SCHMITZ,
STANFORD UNIVERSITY, STANFORD, CA
Mr. Schmitz. Thank you. Mr. Chairman, Mr. Ranking Member,
and Members of the Subcommittee. Thank you for the opportunity
to testify today. I have submitted my written statement for the
record and included a copy of my recently-published scholarly
article in the British Journal of American Legal Studies titled
``The Origination Clause: Meaning, Precedent, and Theory from
the 12th to the 21st Century.'' * My research partner and co-
author, Professor Priscilla Zotti, is the chairman of the
political science department at the U.S. Naval Academy.
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*The material referred to is not reprinted in this hearing record
but is available at: http://www.bcu.ac.uk/Download/Asset/acecfa6b-59c9-
4f7b-a2cd-6a09a1bc281b.
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The origination clause requires that 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. As explained in more detail in our journal article, its
history reveals a deliberate procedural restraint on the taxing
power that no branch of the government, except the direct
representatives of the people, the House of Representatives,
who are elected every 2 years, and who are most familiar with
the circumstances of the people, can constitutionally propose
new taxation.
The 1215 A.D. Magna Carta forced upon King John at
Runnymede by his barons following their open insurrection
contained among its 63 clauses no scutage or aid will be levied
in our realm except by the common counsel of our realm. By
1678, the House of Commons required that all bills for the
purpose of taxation or containing clauses imposing a tax must
originate in the House of Commons and not in the House of
Lords. Under American colonial charters during the time, new
taxes typically required the ``advice, assent, and approbation
of the free men of the said province.''
In 1764, the Virginia House of Burgesses sent its famous
petition to the House of Commons explaining colonial opposition
to the Sugar Act. ``The Council of Burgesses conceive it
essential to British liberty that laws imposing taxes on the
people ought not to be made without the consent of the
representatives chosen by themselves, who at the same time that
they are acquainted with the circumstances of their
constituents, sustain a proportion of the burden laid upon
them.''
The principle is echoed in the fundamental objection of the
first act of the coordinated American government in the Stamp
Act Congress. It was reiterated again by the First Continental
Congress in October 1774. Following independence, the new
States formed their own constitutions. Of the nine available
State constitutions with bicameral legislatures in 1790, seven
had lower house origination clauses. Of the seven with
origination clauses, six allowed upper house amendment to
revenue raising bills.
When the Constitutional Convention opened on May 25th,
1787, the fundamental topic of disagreement between the
delegates was over the nature of representation in the
legislation branch. The small States insisted on retaining the
equal representation they enjoyed under the Articles of
Confederation, while the larger States wanted to shift the
national legislation to be proportionately representative.
What it took for the Great Compromise was Benjamin
Franklin's recognition that the fundamental disagreement was
over property and taxation, and Elbridge Gerry's subsequent
proceeding to ``restrain the senatorial branch from originating
money bills. The other branch was more immediately the
representatives of the people, and it was a maxim that the
people ought to hold the purse strings.'' The origination
clause was ``the cornerstone of that accommodation.''
The debate on the wisdom of the clause continued; however,
the imperative for adding the Senate amending power was
primarily to prevent the House from abusing the absence of an
amending power by disingenuously tacking foreign matters onto
money bills, and then claiming that the Senate could not amend
out these non-germane clauses. The primary impetus for the
clause was not to expand the Senate's influence over tax law,
and certainly not to allow the Senate to effectively originate
taxes.
Ultimately, the argument that seemed to prevail in the
Constitution was purely pragmatic. ``Taxation and
representation are strongly associated in the minds of the
people, and they will not agree that any but their immediate
representatives shall meddle with their purses. In short, the
acceptance of this plan will inevitably fail if the Senate be
not restrained from originating money bills.''
I offer two notes on the meaning of the actual words of the
clause that are very commonly misconstrued by contemporary
legal analysis. First, the phrase ``bill for raising revenue''
did not connote only bills whose primary purpose or sole
purpose was raising revenue. The vast weight of historical
evidence from the phrases used in the Revolution, the
Convention, the State constitutions from which the exact phrase
was adopted, and the ratifying debates belie this common
argument. The `purposive'' interpretation is not supported by
the majority of historical evidence.
Second, the concept of incidental taxation is specified
nowhere in the Constitution, and it was both discussed and
rejected in the 1787 Convention. Such a distinction between
``incidental revenue'' and ``revenue proper'' does not appear
to be historically justified, especially if the revenue comes
from taxes rather than other revenue sources, such as user fees
or sales of government assets. Ironically, Judge Joseph Story's
often misconstrued passage on incidentally created revenue
listed illustrate examples of the concept, none of which
included actual taxes.
I thank you for your time, and I would be happy to
elaborate further on all of these issues.
[The prepared statement of Mr. Schmitz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Franks. Thank you, sir.
And I will now recognize Mr. Kamenar for 5 minutes.
TESTIMONY OF PAUL D. KAMENAR, ATTORNEY-AT-LAW, WASHINGTON, DC
Mr. Kamenar. Thank you, Mr. Chairman, Mr. Ranking Member,
and Members of the Subcommittee. Thank you for inviting me this
morning to testify on the origination clause. I want to
particularly thank you, Mr. Chairman and Congressman Gohmert,
for the leadership you have shown on this issue and your
fidelity to your oath of office to support and defend the
Constitution by, one, introducing House Resolution 153 with 50
of your colleagues expressing the sense of the House that the
Affordable Care Act violated the origination clause because it
was a bill for raising revenue that originated in the Senate;
two, by filing a friend of the court brief with your colleagues
in the U.S. Court of Appeals in the Sissel case.
And I am honored to represent you and your colleagues as
your counsel in your case, along with my co-counsel, Joseph
Schmitz and Jackie Pick. And I have submitted a copy of the
brief for the record;** and three, finally by holding these
timely and, I believe, historic hearings to inform the American
public and the House of the importance of the origination
clause to the founding of this country, and the jeopardy that
clause is in.
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**The material referred to is not reprinted in this hearing record
but is available at: http://www.pacificlegal.org/document.doc?id=1322.
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I am struck by canard constantly repeated that the
Affordable Care Act was upheld by the law of the land, by the
Supreme Court, so get over it. Well, first of all, the Court in
NFIB struck down the Medicaid portion of the bill by a vote of
7 to 2 as a violation of the 10th Amendment's powers reserved
to the States. Second, even though Justice Roberts upheld the
mandate penalty as a tax and a novel ruling, at least he
inserted this important caveat in his opinion: ``Even if the
taxing power enables Congress to impose a tax on not obtaining
health insurance, any tax must still comply with other
requirements in the Constitution.'' In short, the Supreme Court
did not consider the origination clause, but left it open.
I would like to briefly address the two parts of that
clause. The first part, of course, is ``All bills raising
revenue shall originate in the House.'' The constitutional
history, as you heard, is very broad on what raising revenue
is. It is broad money bills. In the first case in 1875, the
Federal Court said ``Certain legislative measures are
unmistakably bills for raising revenue. These impose taxes on
the people either directly or indirectly.'' With respect to
such bills, it was reasonable that the immediate
representatives of the taxpayers should alone have the power to
originate them. So any notion that the Affordable Care Act,
which raises $500 billion in taxes, is not a revenue raising
bill because its primary purpose is to promote healthcare is
simply a false argument. There is simply no historical basis
for this purpose test.
Turning to the jurisprudence of this case, the most recent
being United States v. Munoz, as a preliminary matter,
arguments are being made that the origination clause is such
that it should not even be adjudicated in the courts, that the
courts should defer to the legislative branch as to both the
scope of the House's revenue raising power and the scope of the
Senate's amending power. I think Justice Thurgood Marshall had
it exactly right when he cited James Madison's Federalist 58,
solemnly rejecting that argument and Munoz-Flores when he said,
``Provisions for the separation of powers within the
legislative branch are thus not different in kind from
provisions concerning relations between the branches. Both sets
of provisions safeguard liberty. A law passed in violation of
the origination clause would thus be no more immune from
judicial scrutiny because it was passed by both Houses and
signed by the President than would be a law passed in violation
of the First Amendment.''
Now, in reaching the merits, the Munoz court did conclude
that the $25 assessment provision imposed on a criminal was not
a bill for raising revenue for the general treasury, but
stated, ``The special assessment provision was passed as a part
of a particular program to provide money for that program, the
client victim's fund.'' Although any excess was to go to the
treasury, there is no evidence that Congress contemplated the
possibility of a substantial excess, nor did such excess in
fact materialize. Any revenue for the general treasury that the
provision created was thus ``incidental'' to the provision's
primary purpose.
While we may disagree with this narrow ruling that these
little user fees are not revenue raising, it is absurd to argue
that that decision in any way is a precedent for upholding the
Affordable Care Act in scope and content. One, $500 billion in
taxes under the Affordable Care Act are not nominal special
assessments or user fees. And two, more importantly, the
billions of taxes in that Act go directly into the general
treasury just like other taxes, and they are not placed in a
separate fund for an account like they were in Munoz.
Finally, as to the second part of the origination clause
governing the Senate's limited amending power, the concern
during the constitutional debates was that if the Senate could
not have any amendment power at all, the House would abuse its
revenue raising power by attacking non-revenue raising measures
and lock the Senate into either voting up or down on it. And,
therefore, they wanted a limited provision to have some
amendments on that.
Now, in Stone v. Tracy, the Supreme Court upheld this
limited amendment of a major House tax bill when the Senate
substituted a corporate tax provision for a House inheritance
tax provision, but the Court noted that this one small
amendment was germane to the House bill and did not raise any
new revenue. So the notion that this limited amending power
could include the unheard of and never before accepted attempt
to gut a small House bill providing tax credits, which does not
even raise taxes, as a shell bill and replaced it entirely with
a non-germane 2,000-page bill raising $500 billion in tax, and
then claim with a straight face that the bill originated in the
House simply because the Senate pasted the House bill number
atop the Senate healthcare bill is simply a shell game. If the
courts allow this legislative sleight of hand, the limited
amending power will swallow up the whole House's power to
originate revenue bills contrary to the original meaning.
In conclusion, I note Professor Randy Barnett of Georgetown
when he concluded in a recent Washington Post article,
``Revenue bills shall originate in the House of
Representatives, but the Affordable Care Act did not. As
constitutional questions go, this is about as easy as it
gets.''
Thank you, and I would be glad to answer any questions.
[The prepared statement of Mr. Kamenar follows:]
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__________
Mr. Franks. Thank you, Mr. Kamenar.
And, Mr. Onek, you are now recognized for 5 minutes, sir.
TESTIMONY OF JOSEPH ONEK, PRINCIPAL,
THE RABEN GROUP, WASHINGTON, DC
Mr. Onek. Thank you. Mr. Chairman, Mr. Ranking Member,
Members of the Subcommittee, the reports of the death of the
Origination Clause are greatly exaggerated. At this very
moment, the Senate is refraining from sending its immigration
bill to the House because the bill contains revenue provisions,
and the Senate fears the House will decide that the bill
violates the Origination Clause and will reject it with a blue
slip resolution. The Origination Clause lives.
The call here to give courts a greater role in enforcing
the Origination Clause strikes me as both ironic and misguided.
The purpose of the Origination Clause, as Mr. Schmitz has so
eloquently pointed out, is to bring decisions on tax and
revenue policy closer to the people. But more extensive
judicial intervention would have precisely the opposite effect.
It would transfer power on tax and revenue issues from the most
democratic branches of government to the least democratic
branch, the courts. This is not what the framers of the
Origination Clause had in mind.
The Sissel case in particular asks the courts to use the
Origination Clause to strike down a central provision of the
Affordable Care Act, the individual mandate. It claims that the
individual mandate violates the clause because the mandate is a
tax and did not originate in the House. The District Court
correctly decided, based on Supreme Court precedent, that the
clause does not apply here because the primary purpose of the
individual mandate is not to raise revenue. Indeed, the
government would be happiest if the mandate raised no money at
all because everybody would get insurance.
The purpose of the individual mandate, as everyone here
knows perfectly well, is to induce more people, and especially
healthier people, to purchase health insurance. Now, it is
still too early to tell whether the individual mandate is
working as intended, but initial results are encouraging. Eight
million Americans have enrolled in health insurance plans
through the Affordable Care Act's exchanges. Five million more
have enrolled directly in insurance plans that comply with the
Act without going through the exchanges. Crucially, a
substantial proportion of these enrollees are younger and
presumably healthier individuals.
The District Court also concluded correctly that the
individual mandate originated in the House within the meaning
of the Origination Clause. The individual mandate was part of
an amendment that the Senate made to a House bill that gave
certain tax benefits to military personnel and imposed a small
increase in corporate taxes. Now, the Origination Clause
expressly provides that the Senate may propose amendments to
House revenue bills as on other bills.
Sissel argues, however, that the Senate amendment was not
germane to the House bill. But the Senate and the House
themselves do not require that Senate amendments to a House
revenue bill be germane to that bill. And there is nothing in
the Constitution that requires such germaneness. It would,
therefore, be inconsistent with separation of power principles
and with the specific directive of Article 1, Section 5 of the
Constitution that each House may determine the rules of its
proceedings for the courts to interfere with the policy of the
House and the Senate to accept non-germane amendments.
Now, this position means that some Origination Clause
issues are not reviewable by the courts. But that has always
been the case. Whenever, for example, the House rejects and
blue slips a Senate bill as violating the Origination Clause,
that is not reviewable by the courts. And I do not think House
Members would want it any other way.
Sissel also contends that the original House bill was
itself not a bill for raising revenue, and that, therefore, the
Senate was prohibited from adding a revenue amendment to it.
But the tax imposed by the House bill clearly did raise revenue
and, unlike the individual mandate, was not incidental to some
other governmental purpose.
In conclusion, it is noteworthy that despite the
contentiousness of the Affordable Care Act, the objections
being raised by Sissel were not raised in either the House or
the Senate. There was no blue slip resolution or Senate point
of order. Instead, Sissel is pursuing this issue in the courts.
But as I have noted earlier, transferring power on tax and
revenue issues to the least democratic branch is not what the
framers of the Origination Clause intended. Thank you.
[The prepared statement of Mr. Onek follows:]
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__________
Mr. Franks. Thank you, sir.
And, Mr. Gaziano, you are now recognized for 5 minutes,
sir.
TESTIMONY OF TODD F. GAZIANO, EXECUTIVE DIRECTOR OF THE D.C.
CENTER, PACIFIC LEGAL FOUNDATION, WASHINGTON, DC
Mr. Gaziano. Good morning, Mr. Chairman and other
distinguished Members of the Subcommittee. I am privileged to
be part of the Pacific Legal Foundation that represents Matt
Sissel in his constitutional challenge to Obamacare's
individual mandate. And I am struck by the fact that Mr. Onek
suggests that the courts should not be involved in that
challenge. Yet the Ranking Member in his opening statement
suggests that this House should not be involved in inquiring
about this matter. If asked, I would be delighted to explain
more in questioning why both the House and the courts need to
be involved. And I will use the Chadha case as an important
proof that our individual liberty requires that all branches of
the Federal Government enforce our fundamental rights.
But let me begin this morning with the following
hypothetical: A future House impeaches the Attorney General,
let us say, for perjury before this body. The Senate then takes
up that impeachment article, and through a very creative
substitute tries and convicts a future justice, Richard
Epstein, of multiple counts of bribery and other high crimes.
My question is, could this House ratify that conviction and
remove Justice Epstein by passing a conforming article of
impeachment after the Senate trial? Well, of course not. The
impeachment of a particular officer must originate in this
House, and the subsequent Senate trial must be limited to those
counts and articles that originated in the House.
But why is that so? Did the 17th Amendment not change the
nature of the Senate? Why should the world's most deliberative
body over there in the Senate be confined to only hearing or
trying impeachment on those people that this House first
impeached and on those counts that this House originated? Is
Justice Epstein's trial not germane to the articles of
impeachment on the Attorney General? Both are officers. Both
committed high crimes. What could be more germane than that?
And did the need of the Senate to remove that loudmouth justice
not justify this little legislative jujitsu?
Let us suppose that the House backdates the articles of
impeachment after the Senate trial. Would that not take care of
all the formalities involved? Surely no one outside Congress
could complain. Well, if we think that the future Justice
Richard Epstein, and hopefully he will not mind me using his
name, would have a strong constitutional--a winning
constitutional--claim to keep his seat, my question then is,
why do ``modern'' thinkers treat the Origination Clause
requirements differently? There could be several reasons for
that, but I suspect one of them is a lack of reverence for the
fundamental liberty protected by the Origination Clause.
This hearing and the Sissel case will help resolve whether
that important check on our individual liberty can endure.
Boiled down to one sentence, the only part of the Senate
healthcare bill and its 17 or so historically large taxes in a
2,074-page bill that originated in the House was the bill
number. Putting other grounds for striking that down aside, one
fact should convince us that that was invalid: the use of such
House bill designations did not exist at the time of the
Framing or for 30 years thereafter. Thus, the argument that it
could be a constitutional amendment to strip everything out of
a bill and just leave that number that did not exist at the
time of the Framing and could not possibly have had any
consequence to the Framers who ratified it, must be wrong.
An amendment may improve or augment the original, but it
must retain some substantial portion of the original. And as my
fellow panelist has already testified, the Framers discussed
that and agreed. But ordinary English speakers in the 18th
century or now would not think that a complete destruction of a
house and the erection of a skyscraper on the same street
address was an amendment to the house. They would not think
that a novel with a particular card catalog number was an
amendment to an earlier math workbook that used to have that
card catalog number. Complete and unrelated substitutes are not
``amendments'' in any reasonable sense of the word.
The Chairman's point in his opening is absolutely critical
and dispositive. If the Senate only had to wait for a House
bill--let us even call it a revenue bill; it was not in the
case that we are talking about in the D.C. Circuit--and if they
could then constitutionally put any tax or 17 historic taxes in
a 2,074-page bill, then there is nothing left of the
Origination Clause. And constructions of constitutional clauses
that render empty any particular clause that was debated at the
time of the Framing are an insult to the Framing generation and
any rationale legal system.
I am going to summarize here since I think I am over. But
if questions permit, I would like to go to the ultimate
question of how we also understand the term ``originate'' in
the context of the Origination Clause. In the Sissel case,
though, the Senate healthcare bill with all its historic taxes
had nothing to do with the House bill for service members that
lowered their taxes. As such, it was unconstitutional. Thank
you.
[The prepared statement of Mr. Gaziano follows:]
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__________
Mr. Franks. Well, thank you, sir. And I will now proceed
under the 5-minute rule with questions. And we will begin with
recognizing myself for 5 minutes.
Mr. Schmitz, I will begin with you. First, I have to say in
Mr. Onek's testimony in two places, he suggests that if the
Supreme Court gets involved here somehow, I mean, they have to
do one of two things. They have to let the bill stand or they
have to strike it down. If they let it stand, it is the status
quo. If they strike it down, his suggestion is that somehow
that would take it farther away from the people, and I find
that argument fundamentally preposterous because the effect of
a decision striking this down would be to return to the people
a greater say over their own taxation. And sometimes I do not
know how these arguments are made in these impeccable auspices
that are completely preposterous.
Mr. Kamenar, according to the Congressional Budget Office,
the Affordable Care Act represents one of the largest tax
increases in American history. However, in Mr. Onek's
testimony, he argued that the Origination Clause did not apply
to the Affordable Care Act. Could you please explain to the
Committee as best you can why the Affordable Care Act's
enactment was both required to satisfy the requires of the
Origination Clause and, if so, why it did not satisfy those
requires. I am sorry, this is to Mr. Kamenar. Let me ask that
question to you.
Mr. Kamenar. No, it is clear, as I said in my testimony,
that the Affordable Care Act, which raises over $500 billion,
is a revenue raising measure. It originated in the Senate.
Senator Harry Reid even called it the Senate healthcare bill.
It is on his website. It came over here. And all they did was
take this tax credit provision, tore off the House bill number,
and pasted it on the 2,000-page bill. It is clear that it
originated in the Senate.
And with respect to Mr. Onek's provision that, well, the
other half of the clause says it can amend as on any other
bill. You have to look at that provision in terms of when that
clause was written. Yes, the House and Senate have the power to
make its rules, but they cannot make a rule that violates the
Constitution.
As we said in our brief, the House of Representatives has
always recognized the principle that the Senate may not design
new tax bills. Indeed, when the Framers wrote the Origination
Clause, it was clear that the scope of permissible amendments,
as on other bills regardless of whether the bill was or not a
bill for raising revenue, did not include amendments that were
not germane to the subject matter of the bill. Therefore, the
established practice by the founders during the Constitutional
Convention who penned the words ``the Senate may propose or
concur with amendments as on other bills''--in short, no non-
germane substitute amendments were permitted in 1787 by the
unicameral Constitutional Convention. That is what they were
familiar with.
And the only reason they allowed that was to take care of
the British practice where if the Senate could not do anything,
then they would be locked into a House revenue raising bill
that might put in something about foreign affairs or other
commerce, and the Senate could not amend it. So it is basically
turning the clause upside down on its head the way it is being
interpreted by the Senate.
Mr. Franks. Thank you, sir. Mr. Gaziano, it is your
testimony that if the Senate can do as they did in the
Affordable Care Act, that the Origination Clause is essentially
vapor. So my question to you, is the House's concurrence in a
Senate revenue amendment alone sufficient to satisfy the
Origination Clause? In other words, is the Origination Clause
intended to protect the House or is it intended to protect the
individual liberty of Americans?
Mr. Gaziano. That is really another central question, Mr.
Chairman, and I appreciate the chance to elaborate. It is
ultimately the individual right that the Framers had in mind
when they required that the people's House originate any tax
bills. But you also have an interest because you will feel the
voters' wrath. And as the amicus brief that you and many of
your fellow Members showed, that was the exact result in 2010
when this House violated the Origination Clause.
So ultimately the courts must enforce the individual right
at issue because it is an individual right. The Chadha case is
a great example. In the 1970's, Congress passed 160 one-house
or Committee vetoes because it thought that it needed to check
the imperial presidency of Nixon and Ford, and the strict
constitutional requirements of bicameralism and presentment
were interfering with their desires.
And their argument, of course, was that the Court should
not interfere with accommodations between the President and
Congress over these new innovations. Well, of course the
Supreme Court struck down those 160 laws, 160 provisions, in
the Chadha decision in 1983, pointing out that it was not just
a matter between the political branches. The House or the
Senate, they could have stopped that, too. They should have.
As you noted in your opening statement, every Member of
Congress, every officer of the Federal Government takes an oath
to defend the Constitution. And again, you all will suffer the
voters' wrath. That was the plan, so you all have an interest
in protecting our individual rights. But ultimately, you cannot
concur in a violation of the Constitution in that way. You can
change your own rules about Committee structure in Committee
hearings like this, but you cannot change the constitutional
rules. And it is ultimately up to the courts, like in the
Chadha case, to enforce our individual liberties.
Mr. Franks. Thank you. And I would now recognize Mr. Cohen,
the Ranking Member, for 5 minutes.
Mr. Cohen. Thank you. Mr. Onek, are you familiar with the
Sissel case?
Mr. Onek. I am indeed. Yes, I am.
Mr. Cohen. Tell me about the arguments that the folks
opposing will make.
Mr. Onek. Well, Mr. Sissel challenges the individual
mandate. There are other taxes in the bill, of course, but he
did not have standing to challenge those. So the case is about
the individual mandate, although as a backdrop you have the
other taxes. And he said, well, this is a tax, and it did not
originate in the House. And the District court rejected both
arguments.
On the issue of whether it is a tax, the language----
Mr. Cohen. The District Court rejected both the arguments?
Mr. Onek. That Mr. Sissel made.
Mr. Cohen. That Mr. Sissel made. Okay. I am just kind of
working because Mr. Kamenar, I think, said this is as easy as
it gets, and they lost in the District Court.
Mr. Onek. That is correct.
Mr. Cohen. It is a high burden that he is placing on
himself, but go ahead. Yes, brief the case.
Mr. Kamenar. The judge was wrong.
Mr. Onek. And what the Court said is, and what everybody
knows, the individual mandate is not for the purpose of raising
revenue. In fact, the government would be delighted if it did
not raise a dime, if every person bought insurance, in which
case nobody would have to pay the mandate. Nobody.
Everybody knows that the purpose of the mandate is to
induce people, and particularly healthier people, to purchase
healthcare insurance. The government would have been very happy
if it did not get a dime. I think the government would have
been perfectly happy if it could have taken all the money and
given it to charity. The government does not care about the
revenue. What it wants is for people, and particularly healthy
people, to purchase health insurance.
The second aspect is the aspect I think we could perhaps
talk more about. What kind of amendments can the Senate make?
And as I said earlier, the bill says the Senate can propose
amendments as on all other bills. There is nothing in the
Constitution which talks about germaneness or says that the
Senate has to have a germane bill. And indeed on many occasions
the Senate and the House have agreed to amendments which were
not germane on many, many occasions throughout history for at
least 150 years.
So if the Constitution says there can be amendments, if
there is no requirement that there be germane amendments, how
can the courts intervene? The separation of powers principles
says the courts cannot intervene unless they have some standard
to intervene on. And, in addition, we have a specific clause of
the Constitution, which people here I am sure care a great deal
about. Article 1, Section 5 says ``Each house shall determine
the rules of its proceedings,'' and, in my view, that includes
rules and practices with respect to whether the Senate's bill
has to be germane or not germane, or whether the House has or
does not have the obligation to accept a germane amendment.
That is up to the House. It is up to the Senate.
Now, the House has a blue slip procedure. The House, for
those in the audience, the House attaches a blue slip of paper,
which is why it is called a blue slip, on a resolution and says
to the Senate what you have done violates the Origination
Clause. We reject it. We return it. Goodbye. The House can
always do that. It did not do it here, but it can always do it.
So it is not as if the Court----
And by the way, once the House does it, there is no review
by the courts. Nobody can go to the courts and say, oh, my
gosh, the House rejected this immigration bill, this bill that
I happen to approve of, by the way. It rejects this immigration
bill that would improve the lives of millions of Americans. Let
us challenge it. The Court would say you have no standing, get
out of here.
What the House does is unreviewable. And what I am saying
is what the Senate does, the amendments it makes as on all
other bills, should not and is not reviewable by the Federal
courts.
Mr. Cohen. Mr. Onek, let me ask you this, too. If a bill is
not primarily for revenue purposes, it is not for raising
revenue, then the courts have said it is okay. What was the
primary purpose of the Affordable Care Act?
Mr. Onek. Well, the primary purpose of the Affordable Care
Act is to provide health insurance, security, and better
healthcare to all Americans.
Mr. Cohen. Save people's lives.
Mr. Onek. That certainly is a purpose.
Mr. Cohen. Lives are in the balance.
Mr. Onek. That is correct. And the individual mandate has a
sort of narrow primary purpose, which is to induce Americans to
purchase the insurance, and everybody knows that purpose. There
is nobody here who has not at one time or another given a
speech against or for the mandate. They all know what the
purpose is, but somehow we are expecting the courts to ignore
that. Well, the District Court did not ignore it, correctly.
Mr. Cohen. Thank you, sir.
Mr. Onek. Thank you.
Mr. Franks. I am going to go ahead and propose a new rule
of the House of Representatives since we have total latitude in
that regard that we make this Committee the absolute lawmaking
body of the world, and it is unreviewable at any time. And with
that, I am going to recognize Mr. Gohmert, who is someone who
recognized this situation very early on, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman, and I appreciate the
witnesses being here. And we had filed a bill last Congress.
But I am curious, if we passed a bill in the House that says it
is the sense of Congress that the Affordable Care Act, and it
is really hard for me to use those words ``affordable care
act'' because it has put constituents of mine out of work. It
has taken some from full time to part time. It has taken away
the insurance they liked. It has taken away their doctors they
like. So it is anything but affordable. Nonetheless, we will
use the misnomer that was used to name the bill.
If we say in our resolution and it passed that it is the
sense of the House of Representatives that the Affordable Care
Act did not originate in the House, is that not something that
could be taken up and considered with judicial notice at any
level of the proceedings?
Mr. Onek. No. The answer is flatly no because the courts
never look at post-hoc legislative history.
Mr. Gohmert. All right. But----
Mr. Kamenar. I disagree----
Mr. Gohmert. All right. Let us hear your----
Mr. Kamenar [continuing]. Because I argued one case that
did.
Mr. Gaziano. It would not be part of the legislative
history of the act, so it would not be. But I do not think that
it would be valuable for that purpose. It would be valuable for
a very different purpose, and they ought to certainly pay
attention to it. And that is because it would discourage the
Court from punting its responsibility and saying this is a
political question.
Now, the Supreme Court in Munoz-Flores said they cannot do
that anyway. And so, that is the more important reason why I
think Mr. Onek's wish that the courts not examine this horrible
act will fail.
Mr. Gohmert. Okay. But let me hear from----
Mr. Gaziano. The reason that they would care, in
administrative law, if two agencies disagree on a matter, they
do not defer to one or the other.
Mr. Gohmert. Right.
Mr. Gaziano. And so, it would be some proof that your
reading of the rules is different than what happened in the
last Congress.
Mr. Gohmert. That there is a question of fact in this. So I
was really surprised as a former judge and chief justice, I am
just shocked that anybody that claims to have knowledge of the
law would have such a quick answer of no. But, Mr. Kamenar----
Mr. Kamenar. Yes. The Court would certainly look at a
resolution passed by the House on this for this important
purpose. Whether or not the members of the House could bring
the case themselves and have standing, that might, in fact,
give them additional what is called legislative standing. But
now that we have a plantiff that is always with standing. By
having this resolution passed, it gives the Court more impetus
to look at this because now it is an institutional interest by
the House that the Court cannot just simply just say, oh, this
is just some plaintiff. Why should that plaintiff worry about
the House's bill? They basically relented, et cetera.
So the blue slip procedure is an important procedure for
the House to use. And Mr. Onek asked, well, why was it not
used? Well, he was the counsel to Speaker Pelosi at the time,
and he knows very well. The bill came over from the Senate.
Speaker Pelosi said we have to pass the bill----
Mr. Gohmert. Well, let me give you a little help there.
Actually what had happened, the House had originated a bill----
Mr. Kamenar. That is correct, a different bill.
Mr. Gohmert [continuing]. An Obamacare bill, and it passed
the House under Speaker Pelosi's leadership. And I have
senators tell me that actually they were told that, look, we
are passing the Senate bill, but everybody knows this is not
going to be the final bill, so we know you have some
objections. Do not worry about it. Just vote for it, and we
will clean it up later. And then, Scott Brown got elected so
there was not going to be a chance for the Senate to vote for
the House bill that originated in the House. So the only way
they could do it was to conspire to subvert the Constitution.
But my time is running out, and I have one more question to
ask. Here is the original H.R. 3590, ``Be it enacted by the
Senate and House of Representatives of the United States of
America and Congress assembled.'' That is the enactment clause.
And then it talks about the Service Members Ownership Tax Act
of 2009. This is the bill. These are the topics that, this
three-page bill. And then this starts by saying strike out all
after the enacting clause. Tell me where in this bill any of
these topics in this bill were ever found. Any witness that
cares to tackle that, point me out anything in the new bill
that was in the old bill. Mr. Schmitz?
Mr. Schmitz. I cannot speak necessarily to some of this,
but I can say on the history of the clause, that sort of
amending procedure was never contemplated by the public when
they signed as on other bills when they ratified it. I can find
the entire documentary history of the ratification of the
Constitution where a member in the Virginia legislature, an
Anti-Federalist, or in the debates contemplated the fact that
the Senate might abuse the amending power by trying to turn it
into an origination power.
And luckily, during that debate Madison just so happened to
be there. And he responded to the criticism that the Senate
might abuse this amending power and turn it into an origination
power. And he said to the criticizing member, there is an
ambiguity in the clause, and he said somewhat dismissively, he
said, ``the first half of the clause is sufficiently expressed
as to exclude all doubt,'' i.e., all revenue raising bills will
originate in the House of Representatives. That was the one
time this was brought up among 34 different instances in the
debates.
I researched it, and when it was brought up, Madison
himself, who called this power the most complete and effectual
power with which any Constitution can arm the immediate
representatives of the people for obtaining a redress of
grievances, he dismissed it and said the first half of the
clause is sufficiently expressed to exclude all doubt. The
ratifying public had no idea. They would never have expected
that that amending procedure would have occurred and that they
were consenting to that. And furthermore, it was illegal under
the Continental Congress since 1781.
Mr. Franks. Thank you, Mr. Gohmert. Thank you, Mr. Schmitz.
Mr. Gohmert. Mr. Chairman, I take it by the lack of the
witnesses to be able to point out any topic in here that
amended anything in our little 3590 bill, there is no such
amending topic. And I yield back.
Mr. Franks. Thank you, sir. And I now recognize Mr. Nadler
for 5 minutes. Sorry, I did not know which of you came in
first.
Mr. Cohen. Well, he is the Ranking Member emeritus.
Mr. Franks. The Ranking Member emeritus.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, this
frivolous hearing is just another misguided attempt by the
majority to undermine and discredit the Affordable Care Act.
Despite the best efforts to sabotage it by the majority across
this country, implementation of the law carries on. And my
friends on the other side of the aisle can no longer ignore the
great good that the Affordable Care Act is doing for the
American people.
The uninsured rate has now dropped to 15.6 percent. 8
million Americans have enrolled in comprehensive and affordable
private health insurance coverage through the Federal exchange.
5 million more Americans have enrolled in private ACA compliant
insurance plans. 3 million young adults gained coverage by
being able to stay on their parents' plans. 3 million more
people enrolled in Medicare and CHIP as of February compared to
before the marketplaces opened. 129 million Americans with pre-
existing health conditions, including up to 17 million
children, no longer have to worry about being denied coverage
or charged higher premiums due to their health status. 108
million Americans have received free preventive services, and
7.9 million seniors in the donut hole have already saved $9.9
billion in their prescription drugs, an average savings of
$1,265 per person.
So while I certainly appreciate as an academic exercise
this abstruse lesson in the history of the Origination Clause,
I speak for the millions of Americans benefitting from the law
today in urging my colleagues to move on and address the real
issues facing this country.
Constitutionally, this is a frivolous hearing. The three
witnesses for the majority have cited no court cases. We hear
very interesting testimony, and I am going to read more about
the Origination Clause in the Constitutional Convention and the
debates in the Federalist. I find it fascinating. But
essentially, and let me ask Mr. Onek if I am right in saying
that the three witnesses of the majority are asking us to
ignore two centuries of Supreme Court rulings and precedents on
these questions, all of which point to the fact that there is
simply no real constitutional question here. Mr. Kamenar said
that the judge was wrong. But the judge was ruling pursuant to
every single case that has been decided that I am aware of in
the last two centuries. Am I correct, Mr. Onek?
Mr. Onek. That is correct. And Mr. Schmitz said, well, the
Framers wanted to cover the raising of revenues. There was no
primary purpose, nothing about incidental revenues. But of
course, the three leading Supreme Court cases on that
particular point have gone precisely the other way. They have
said that certain taxes, which are taxes under the taxing
power, are nevertheless not taxes for purposes of raising
revenue within the meaning of the Origination Clause.
Mr. Nadler. And that is well established. It is also well
established that the Senate can amend to its heart content, and
that there is no germaneness requirement, correct, Mr. Onek?
Mr. Onek. I believe that is absolutely correct.
Mr. Nadler. And despite the histrionics by Mr. Gohmert, is
it not correct that the precise manner of amending a House bill
used by the Senate has been used many times before and upheld
by the courts?
Mr. Onek. It has been used many times before----
Mr. Gohmert. Nothing like this.
Mr. Onek. It has been approved in other cases. There is no
Supreme Court that specifically has looked at a situation like
this. But I do think it is very, very clear when a
constitutional provision says that the Senate can make
amendments as on all other bills, then that is the answer.
Mr. Gohmert lifts up the big bill, but, in fact, if this
was not a revenue bill, if this was some other kind of bill,
the Senate could do it and does do it. And that is what the
Constitution says, ``as on other bills.'' There is nothing
wrong with substituting and amending.
Mr. Nadler. Thank you. Let me ask either Mr. Schmitz, Mr.
Kamenar, or Gaziano, have the Supreme Court and the Congress
been simply misinterpreting the Origination Clause for the last
200 years? Should courts and Congress simply ignore more than a
century of precedent based on your interpretations of
constitutional history?
Mr. Gaziano. The Supreme Court's precedents are very clear
that this is unconstitutional. The Supreme Court and no court
has ever upheld the ``gut-and-substitute'' provision, nor could
they ever. And the Supreme Court----
Mr. Nadler. Excuse me. Wait a minute. You said the Supreme
Court had made clear this is unconstitutional. When has it done
so?
Mr. Gaziano. This type of amendment is unconstitutional.
And in all of its decisions, it has explained that this type of
non-germane amendment. And by the way, all of our testimony is
full of all the cases that, Supreme Court and otherwise, that
say that an amendment must be germane.
Mr. Nadler. Basically germane.
Mr. Gaziano. But a non-germane amendment is
unconstitutional.
Mr. Nadler. Mr. Onek, would you comment on the germaneness?
In other words, Mr. Gaziano is saying that the Supreme Court
has required germaneness for amendments.
Voice. They did require germaneness in----
Mr. Nadler. Mr. Onek, is that correct?
Mr. Onek. No. There is one case that mentioned it in
passing.
Mr. Gaziano. The most recent one in----
Mr. Nadler. Excuse me. I asked Mr. Onek. Go ahead.
Mr. Onek. No, they have not required germaneness, and how
could they constitutionally?
Mr. Nadler. Because?
Mr. Onek. Article 1, Section 5 says the House and Senate
make their own rules. The Supreme Court cannot or the courts
cannot tell the Senate whether it has to have germane rules or
not. They cannot tell the House of Representatives whether they
have to have germane----
Mr. Nadler. Thank you. Let me before my time expires say
one sentence. I think that this is frivolous. I think the
arguments are frivolous, but the Court will decide. Mr. Sissel
is in court. Mr. Kamenar, I think, is representing him. That is
the proper way to do it. The courts will decide. And we should
in Congress be seeking to do the business of the American
people instead of holding frivolous hearings and commenting on
court decisions that are not going anywhere. I yield back.
Mr. Franks. Thank you. You know, I guess that my conclusion
here is if the Senate can do what they did, then we can tear
the Origination Clause out of the Constitution. And if it is
frivolous for the Constitution Committee of the House of
Representatives tries to prevent that, then count me frivolous.
And with that, I would recognize Mr. King for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I appreciate you holding
this hearing, and the frivolous remark is troubling to me as
well. I was thinking about the language that comes out of the
other side of the aisle from us and how they tend to shape
themselves in defense of our President no matter what kind of a
thing he might assert.
And I remember the statement he made to the public and
reiterated in his last State of the Union Address when he said
I have a pen and I have a cell phone, and if Congress does not
act, I will. It is not so much what he said. It was all the
Democrats stood up and applauded the constitutional authority
that is granted to them in Article 1 being usurped by the
President of the United States right in the very front of them
in a State of the Union Address. So I am not very moved by the
constitutional arguments that I hear from my colleagues these
days having seen that demonstration of them leading the
standing ovations.
However, I would turn to Mr. Onek, and I note some of the
things in your testimony. The primary purpose of the individual
mandate is not to raise revenue. I was also listening to the
President in the passage debate period of time of Obamacare,
and I, like, Mr. Gohmert have a lot of trouble saying
``affordable care act.'' I think that is a misnomer, and I have
said that George Washington could not have uttered those words.
But the primary purpose of it, as you said, was so that
individuals will buy insurance. The President said I will not
sign a bill that increases the deficit by one dime. So this
needed to match the CBO score. It needed to match the actuarial
figures. If it raised one dime, the fine, the penalty, the tax
for the individual mandate, then that was a qualifier for the
President to sign the bill. And do you have an estimate of how
much revenue was raised or is projected to be raised, Mr. Onek?
Mr. Onek. You mean by the mandate?
Mr. King. Yes, by the individual mandate.
Mr. Onek. Well, in fact, although I do not think it is
relevant, it does not raise revenue. It loses money. Last
March----
Mr. King. Wait a minute. We are talking about revenue. We
are not talking about a balance sheet here. And so, if you are
going to force people to pay an IRS tax bill, that is raising
revenue. I think we have to agree with that here.
Mr. Onek. I believe----
Mr. King. And so, can we agree that it raises more than
dime?
Mr. Onek. It does indeed, but, in fact----
Mr. King. And so, we would agree that that helped fill the
score sheet up so that the President could keep his word this
time.
Mr. Onek. No.
Mr. King. Well, okay. I probably got in dangerous territory
when I said the President would keep his word.
Let me move on. Each House shall determine the rules of its
proceedings. And your statement is that the blue slip is not
reviewable by the courts because each House determines the
rules of its proceedings. Now, what is your resolution of this
when the House and the Senate get into an impasse? Who then
resolves that?
Mr. Onek. It does not. If the House issues a blue slip,
then the bill does not pass, and the people ultimately judge
that decision.
Mr. King. If the House determines by the rules of its
proceedings that we simply, let us say, suspend the actions of
the Senate and operate on our own. There are a number of
hypotheticals. They are all in Mr. Gaziano's head. I heard them
all stream out here.
I will turn to you, Mr. Gaziano. Can you imagine a scenario
by which there would be a deadlock between the House and the
Senate because the rules of the proceedings were in conflict
with each other? How then would that be resolved if the courts
cannot hear the case? And your testimony was that the Congress
and the courts should be involved.
Mr. Gaziano. Absolutely. And my bigger concern is what if
the House is just in a particular mood and goes along with it?
What if the House passes a rule that deems a majority to be
two-thirds for overriding of a presidential veto? The House
wants to override that veto. We all agree the courts would have
to resolve that.
What if the House passed 160 one-house vetoes, and they
were just loving it? Well, actually they did do that. And the
Supreme Court said, your rules that we cannot review are your
internal ones, but not the constitutional rules. The two-
thirds-vote requirements, the Origination Clause, the
Bicameralism and Presentment Clause, those are constitutional.
The courts have to enforce those.
Mr. King. So your testimony is both the courts and the
Congress would be engaged in----
Mr. Gaziano. Well, the Congress, if it does its job--I
think Mr. Onek is right about one thing. If the House does its
job, it will never ever create a case of a bill passed
unconstitutionally. But the courts are around for bills that
are unconstitutional. So the Obamacare act, for example, this
body's desire to pass the law before you read it, that was just
an illegal procedure. And the House cannot acquiesce in a
violation of the Constitution of that nature.
Mr. King. Thank you, Mr. Gaziano. Mr. Chairman, I
appreciate it and yield back the balance of my time.
Mr. Franks. I thank the gentleman, and I will recognize Mr.
Johnson for 5 minutes.
Mr. Johnson. Thank you. Mr. Onek is a graduate of the
Harvard University, the Yale Law School. When he came out of
law school, he clerked for a United States Supreme Court
justice. He has served in high positions including the counsel
to the President, I believe. And he has served in the
legislative branch as a senior counsel to the Speaker of the
House. Those are all high-level positions. Would you agree, Mr.
Schmitz, that it would be in error to characterize the legal
position of Mr. Onek's on this particular matter as
preposterous? Would you disagree with that?
Mr. Schmitz. No, not based on what you said, Congressman.
Mr. Johnson. So in other words, his position is not
preposterous, correct?
Mr. Schmitz. Not based off his past occupation.
Mr. Johnson. And would you agree with that, Mr. Kamenar?
Would you agree that his position is not preposterous, yes or
no?
Mr. Kamenar. It is preposterous under the Constitution.
Mr. Johnson. All right. Okay.
Mr. Kamenar. We are doing a reverse ad hominem.
Mr. Johnson. How about you, Mr. Gaziano?
Mr. Gaziano. Much of what he says is very interesting, but
the important parts are very preposterous.
Mr. Johnson. Preposterous, okay. All right. So we have got
some guys who probably could not carry Mr. Onek's briefcase to
the U.S. Supreme Court who say that his position is
preposterous. And I think that is preposterous, and I salute
you, Mr. Schmitz
Mr. Gaziano. If I could clarify----
Mr. Johnson. I have got the floor, sir. Thank you. Now,
listen, Mr. Kamenar, you said that Justice Roberts issued a
novel opinion on the constitutionality of the Affordable Care
Act because he found that it was a constitutional use of
legislative authority under the taxing authority.
Mr. Kamenar. Correct.
Mr. Johnson. Not the----
Mr. Kamenar [continuing]. Commerce clause.
Mr. Johnson [continuing]. Commerce clause. But now you are
arguing that this is a revenue raising bill, which is a part of
the taxing authority.
Mr. Kamenar. That is correct.
Mr. Johnson. Okay. Was there any issue raised during the
legislative debate, which was at least a year--which was longer
than a year--on the Affordable Care Act before it passed. Were
there any senators on your side of the aisle who argued that
the Affordable Care Act under the way that it was presented
back to the House was a non-germane amendment?
Mr. Kamenar. Was what kind of an amendment?
Mr. Johnson. Was the amendment of the House bill sent to
the Senate and then sent back to the House as the Affordable
Care Act----
Mr. Kamenar. Right. Right.
Mr. Johnson [continuing]. Were there any objections raised
by Republicans senators about germaneness?
Mr. Kamenar. Well, they raised objections by not voting for
it.
Mr. Johnson. Well, did they actually raise the objection?
Mr. Kamenar. I am not aware of it, but----
Mr. Johnson. All right. Now, let me ask this question. Did
anyone in the House of Representatives raise the germaneness
issue?
Mr. Gaziano. It was not thought to be a tax. The Senate
said it was a penalty. The President said it was a penalty. Why
would the House blue slip something that everyone thought was a
penalty? I submit the Supreme Court still got it wrong. Chief
Justice Roberts still got it wrong, but we are faced with the
fact that now that is the opinion of the Supreme Court.
Mr. Johnson. Let me ask you this. Let me ask you this then.
How would that wrongness be any more preposterous than failing
to find that Congress had the power under its ability to
regulate interstate commerce to legislate the Affordable Care
Act? How is it any more preposterous than that?
Mr. Gaziano. Well, the fact is it is either
unconstitutional for one reason or it is unconstitutional for
another. And given that the Supreme Court said it is only
constitutional if it is a tax, we now have to do determine
whether it is the type of tax that is constitutional or not,
and it just is not.
Mr. Johnson. Last but not least, should the Court be the
arbiter or whether or not an amendment to a House bill is
germane or not, or should not that be the power of the
legislative branch to do? Mr. Onek?
Mr. Onek. I believe that clearly under the separation of
powers doctrine and, more specifically, under Article 1,
Section 5, the Senate and the House should make that decision.
The House could have blue slipped this bill. Mr. Gaziano says,
oh, they did not know the mandate was a tax. But, of course, in
their briefs they say there were a hundred taxes in the bill or
whatever number. So there were plenty of other provisions they
could have said were taxes. But they did not blue slip the
bill.
Mr. Kamenar. How can a minority blue slip?
Mr. Johnson. For me it is just simply another opportunity
that the Republicans are taking to try to do away with the
Affordable Care Act. And I will relinquish the balance of my
time. Thank you, Mr. Chairman.
Mr. Franks. Thank you, sir. Just for the record, the
Origination Clause that has been talked about here today was
originally to make sure that the taxing power was closest to
the people. That was its purpose. And if the Supreme Court
enforces it and upholds that, it will return that taxing power
closer to the people. My comments were that Mr. Onek's
testimony was that if the Court got involved and did that, that
it would take it away from the people. That is what I found
preposterous, and I do not have the vocabulary to think of a
word that more accurately reflects my conviction. So I stand by
that.
And with that, I would now recognize Mr. DeSantis for 5
minutes.
Mr. DeSantis. Thank you, Mr. Chairman. Thanks for the
witnesses. Mr. Onek, when you started your testimony, you had
made reference to the reason why the Senate had not sent over
the Gang of Eight immigration bill. So do you acknowledge that
the Gang of Eight immigration bill, because it has revenue
raising measures, violates the Origination Clause of the
Constitution?
Mr. Onek. I am not an expert on the bill, so I do not know
that. But at least it is my understanding that there is a
concern in the Senate, and, therefore, that is why they have
not sent it over. And based on that, it demonstrates that the
Origination Clause lives. It lives.
Mr. King has left, but he is an expert on immigration. I am
sure that if the bill came over, he would be leading the fight
for the blue slip, and it shows the Origination Clause is not a
dead letter. It lives. That is my point.
Mr. DeSantis. All right. So bottom line is if there are
taxes in there, you would acknowledge that that is an
Origination Clause problem.
Mr. Onek. I obviously would have to look at the particular
taxes and so on, but in general if the Senate passes a bill
with tax provisions----
Mr. DeSantis. I think there are, like, tens of billions of
dollars of different revenue.
Mr. Onek [continuing]. That creates a----
Mr. DeSantis. All right. Well, I just wanted to see that
because, you know, obviously you were invited by the minority,
but I think when those witnesses are able to acknowledge maybe
some problems with some of the political platforms of those who
brought them, I think it gives them a little more credibility.
Now, if the House were to pass a similar bill to what
happened in 2009, say, a tax credit for veterans bill, could
the Senate strip that entirely and substitute a 20 percent
national vet tax, and would that be constitutional or would
that violate the Origination Clause? And I will let you go, Mr.
Onek, but any witness. I mean, if you could kind of give me
your take on that.
Mr. Kamenar. I do not think it would, of course, but Mr.
Onek said it would because they can amend as on any other
bills. So your example, he would agree that you could take any
House bill that raises a dime and throw in a $500 billion tax
bill, a corporate tax, inheritance tax, Obamacare tax,
whatever. That is the logic of their argument.
Mr. Onek. And the logic is that the courts cannot
intervene. Nothing, of course, would stop the House from simply
not passing the Senate bill. It does not even need a blue slip.
It can just not pass it. The House does not pass lots of Senate
bills and vice versa. Or, more specifically, it could use the
blue slip----
Mr. DeSantis. But if it is controlled by the same party----
Mr. Gaziano. But in every one of Mr. Onek's examples is as
if the House did its job. The courts could not act, and I agree
with that. But the question we have here is what if the House
is controlled by a party that is interested in violating the
Constitution--let us just take that as a hypothetical--and
accepts a 2,074-page bill that was supposedly a complete ``gut-
and-strip'' of its six-page unrelated bill, what happens then?
Then of course the Supreme Court has said that the courts are
obligated to take that case.
In Munoz-Flores in 1990--I should say earlier in Flint v.
Stone--of course the Supreme Court said there is a germaneness
requirement because the Origination Clause would be empty if
there was no Origination Clause. It would be a dead letter if
there was no germaneness test.
And so, in Munoz-Flores, the Supreme Court said we conclude
initially that this case does not present a political question,
and, therefore, reject the government's argument that the case
is not justiciable. Then if they took your hypothetical, sir,
they would have to strike it down because there was nothing in
the original bill that was remotely germane to a 20 percent
back tax.
Mr. DeSantis. And I think part of the problem is that a lot
of folks in this body I have found, and I was not here for the
Obamacare debate, you know, when it comes to the Constitution
they basically say, well, look, you know, we do what we want in
Congress until the courts stop us. So they are kind of having
it both ways in some of this, that they do not have an
independent duty. I think we have an independent duty to follow
the Constitution. If we have a bill that violates the
Constitution, we are obligated to vote no on that.
Now, I think what happened here, and my response to Mr.
Onek would be, the House did not have to pass Obamacare. I
mean, after all there was the Senate bill. But the political
context is very different. I mean, it originated a different
bill in the House--and I was not in Congress then, but I was
following this--that did not have the votes in the Senate. So
then the Senate did their own bill, 60 votes, Christmas Eve,
got something through. And they were going to try to merge them
somehow and come up with something.
But Scott Brown got elected in Massachusetts. Wow. I mean,
one of the most liberal States in the country, they elect a
Republican to the U.S. Senate to fill Ted Kennedy's seat
because they did not like what they were seeing with what was
going on with what would soon be Obamacare. So the House, and
people like Nancy Pelosi----
I mean, look, this is a progressive thing that they wanted
for decades. And so they are left with you either take the
Senate bill or you lose. And the Origination Clause, I do not
think that was even something they were worried about in the
slightest. I think it was we have this here. We are going to
pass it. Of course, they used budget reconciliation in the
Senate to get the amendments through.
So the Origination Clause was just given shrift by the
folks in the House. They chose doing this based on the politics
of the moment. I think it was the wrong decision, but I do not
think we had the lively debate that we should have. And I yield
back.
Mr. Franks. Well, this has been certainly a very
interesting discussion, to say the least. And I want to thank
all of the Committee Members for attending, and I want to thank
all of the panelists. Mr. Onek, regardless of my disagreement
with you, sir, I genuinely respect and appreciate your presence
here today.
Mr. Onek. Thank you very much.
Mr. Franks. And with that, it does conclude today's
hearing. And again, I thank you all for attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
And I do thank the witnesses again and thank the Members
and the audience. And the hearing is adjourned.
Voice. Thank you.
[Whereupon, at 11:31 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Ranking Member, Subcommittee
on the Constitution and Civil Justice
This is my first hearing as Ranking Member of the Subcommittee on
the Constitution and Civil Justice. I am honored to serve as Ranking
Member and look forward to working with Chairman Trent Franks, who I
had the pleasure of working with back in the 111th Congress when I was
chairman of the Subcommittee on Commercial and Administrative Law and
he was the Ranking Member.
Today's hearing is titled ``The Original Meaning of the Origination
Clause.'' We can all agree that the Origination Clause plays an
important role in ensuring that the House of Representatives--the
``People's House''--has the first say when it comes to bills related to
revenue. As the chamber that most directly represents the people, this
is as it should be.
But, we must also remember that the Constitution reflects a series
of political compromises made by the Framers to ensure that the
competing interests of various states and regions were addressed.
Foremost among these is the makeup of Congress itself. The
structure of the House, with its proportional representation and two-
year terms, favors states with large populations. Small-state
interests, meanwhile, are protected by the structure of the Senate,
where all states have equal representation regardless of size.
The Origination Clause, as currently drafted, reflects this
balancing of interests. While giving the House exclusive authority to
originate ``Bills for raising Revenue,'' the clause also gives the
Senate broad leeway to ``propose or concur in amendments as on other
Bills.''
This balance has largely worked. Through more than a century of
judicial and congressional interpretation and enforcement, the House's
prerogative to originate not only revenue-raising bills, but all bills
relating to revenue, is clearly established. At the same time, the
Senate's broad authority to amend any revenue bill is also clearly
established.
Some observers, however, believe that the Origination Clause is in
peril. In particular, these observers, including some of our witnesses
today, allege that Congress did an end-run around the Origination
Clause when it passed the Patient Protection and Affordable Care Act
and, in particular, its ``individual mandate'' and the related ``shared
responsibility payment.''
As will be made more evident during our discussion today, neither
the facts nor the law support that assertion. Supreme Court precedent
and congressional practice make clear that a bill with a primarily non-
revenue purpose is not a bill ``for raising Revenue'' within the
Origination Clause's meaning, even if the bill raises revenue, so long
as the revenue supports a government program.
Here, as the Supreme Court concluded in 2012 in National Federation
of Independent Business v. Sebelius, the Affordable Care Act had the
primary purpose of, among other things, expanding health insurance
coverage.
And the individual mandate and shared responsibility payment was
the key to meeting this goal.
I note that today's hearing is taking place a little over a week
before the U.S. Court of Appeals for the District of Columbia Circuit
hears oral arguments in Sissel v. HHS, where the plaintiff challenges
the constitutionality of the Affordable Care Act on Origination Clause
grounds. I question whether it is the best use of resources for this
Subcommittee to be holding this hearing on a matter that is still
pending before the federal courts.
Nonetheless, I look forward to our discussion and I thank the
witnesses for their appearance today.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Although the official title of today's hearing is ``The Original
Meaning of the Origination Clause,'' the real objective of this hearing
is to provide yet another opportunity for opponents of the Patient
Protection and Affordable Care Act to attack this duly enacted law.
In fact, there already have been 54 attempts in the House to repeal
the Act. This is in addition to the numerous hearings that various
committees in this body have held on the same subject matter.
Today's hearing, which attacks the Act's individual mandate and
related ``shared responsibility payment'' provisions on the basis that
they violate the Constitution's Origination Clause, is a particularly
fruitless undertaking for several reasons.
For example, let's begin with the fact that the Constitution's
Origination Clause does not even apply to the Act.
The Clause requires that ``Bills for raising Revenue shall be
originated in the House of Representatives; but the Senate may propose
or concur with amendments as on other Bills.''
But based on more than a century of judicial and Congressional
precedents, it is absolutely clear that the Act's individual mandate
requirement presents no Origination Clause problem.
This is because measures with primarily non-revenue purposes--even
if they contain provisions that would raise revenue--simply are not
``Bills for raising Revenue'' within the meaning of the Clause, as the
Supreme Court has made abundantly clear.
As recently as its 2012 decision upholding the constitutionality of
the Act in National Federation of Independent Business v. Sebelius, the
Court specifically held that the Act's individual mandate was not a
``Bill[] for raising Revenue'' under the Origination Clause.
It reasoned that Congress' taxing power ``is often, very often,
applied for other purposes, than revenue.'' The Court found that that
the primary purpose of the Act's individual mandate and of the Act
generally was, among other things, to expand health insurance coverage.
And, even if we were to assume that the Origination Clause somehow
applies to the Affordable Care Act, the measure does not violate the
Clause's requirements.
Even a cursory review of the legislative history of the Act
establishes this fact.
The House measure that the Senate amended to add the text of its
version of the Affordable Care Act was a revenue bill. As explicitly
authorized by the Origination Clause, the Senate then had broad
authority to replace the underlying House-originated revenue bill with
its measure.
Not surprisingly, the District Court rejected an attack on the Act
for purportedly violating the Origination Clause for these very same
reasons.
Finally, rather than wasting time on yet futile another attack
against the Affordable Care Act, this Committee should be focusing on
the real, not imagined, problems that Americans desperately want
addressed.
These include:
fixing our Nation's broken immigration system;
solving the problem of crushing student loan that
results in virtual debt peonage for our young people; and
creating more job opportunities by strengthening the
competitiveness of our Nation's businesses.
Instead, we will spend this morning addressing phantom issues
created by the Act's opponents in an effort to derail the law, this
time under the guise of constitutional analysis.
I again urge my colleagues on the other side of the aisle to spend
the remaining time left in this Congress to focus on real issues.
[all]