    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                          THE ORIGINAL MEANING OF THE
                               ORIGINATION CLAUSE

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION
                               AND CIVIL JUSTICE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                JANUARY 13, 2016

                                   __________

                               Serial No. 114-54

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   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
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

               Shelley Husband, Chief of Staff & General Counsel
            Perry Apelbaum, Minority Staff Director & Chief Counsel
                                     ------

               Subcommittee on the Constitution and Civil Justice

                        TRENT FRANKS, Arizona, Chairman

                      RON DeSANTIS, Florida, Vice-Chairman

    STEVE KING, Iowa                     STEVE COHEN, Tennessee
    LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
    JIM JORDAN, Ohio                     TED DEUTCH, Florida

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                JANUARY 13, 2016

                                                                       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.................................     2
    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary     4

                                   WITNESSES

    Todd F. Gaziano, Executive Director of the D.C. Center, Senior
      Fellow in Constitutional Law, Pacific Legal Foundation
      Oral Testimony.................................................    14
      Prepared Statement.............................................    17
    Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability
      Center
      Oral Testimony.................................................    34
      Prepared Statement.............................................    36
    Paul D. Kamenar, Esq., Constitutional and Public Policy Lawyer
      Oral Testimony.................................................    48
      Prepared Statement.............................................    51

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.................7
                           deg.OFFICIAL HEARING RECORD
              Unprinted Material Submitted for the Hearing Record

    Supplemental Material submitted by Paul D. Kamenar, Esq.,
        Constitutional and Public Policy Lawyer. This material is available
        at the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104322.

                 THE ORIGINAL MEANING OF THE ORIGINATION CLAUSE

                                  ----------

                          WEDNESDAY, JANUARY 13, 2016

                            House of Representatives

                       Subcommittee on the Constitution
                               and Civil Justice

                           Committee on the Judiciary

                                Washington, DC.

        The Subcommittee met, pursuant to call, at 9:05 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Trent
    Franks (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, DeSantis, Goodlatte, King,
    Gohmert, and Cohen.
        Staff Present: (Majority) John Coleman, Counsel; Tricia
    White, Clerk; (Minority) James J. Park, Chief Counsel; and
    Veronica Eligan, Professional Staff Member.
        Mr. Franks. The Subcommittee on the Constitution and Civil
    Justice will come to order. Without objection, the Chair is
    authorized to declare a recess of the Committee at any time.
        Thank you all for being here. The first clause of Article
    I, Section VII of the 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 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 a 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 Clause, the origination of
    revenue bills is not a small matter 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 of 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.
        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 whose Members sit
    unchallenged for 6-year terms. The Senate also does not
    proportionally represent the American population, and they
    already enjoy their own and unique and separate Senate powers
    granted to them in the Constitution.
        As George Mason observed during the 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 after 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 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 the
    bill and replacing it with a ``bill for raising revenue no
    matter how nongermane the Senate's amendment is to the House
    original passed measure.'' A glaring example would be when the
    Senate struck everything but the bill number in the ACA
    legislation, which was a completely nongermane bill, and
    inserted the entire Affordable Care Act, which the Supreme
    Court later specifically designated as a tax since it raised 17
    different taxes and was, in fact, the largest tax increase in
    the history of the Republic.
        This sort of procedure blatantly ignores the Framers'
    intent, and if allowed to stand, it renders the Origination
    Clause of our Constitution a dead letter. We await with great
    concern the Supreme Court's decision as to whether they will
    allow that to happen as they ponder the review of the case on
    this topic, Sissel v. HHS.
        Enforcing the Origination Clause is of critical concern to
    this House and especially this Constitution Subcommittee. 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 those 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.
        I thank the witnesses for their testimony and yield to the
    Ranking Member, Mr. Cohen, for his opening statement.
        Mr. Cohen. Thank you, Mr. Chair.
        Last night was a great opportunity to hear the President's
    last State of the Union speech. Unfortunately, it will be his
    last, but it was probably his greatest, inspiring us as to what
    we as Americans should be doing to move our country forward,
    inspire our citizens, and protect them against fears being
    generated and concerns. And he reiterated the importance of the
    Affordable Care Act and how much good it has done and how well-
    received it has been. But, once again, in this Committee, I
    have to play the Bill Murray role. It's Groundhog's Day early.
        This hearing on The Original Meaning of the Origination
    Clause is a repeat of a hearing we had 2 years ago, almost 2
    years ago. And we have the same majority witnesses before us,
    so they're getting their act down. That's good. They've got a
    second act. But even though they have a second act, in court,
    they're 0 for 3. In the NBA you'd be sent down to the
    developmental league, but, no, you're still here in the major
    leagues, even though you're 0 for 3.
        It appears no Federal judge has so far considered the
    merits of this latest attack on the Patient Protection and
    Affordable Care Act. The Origination Clause, attorneys can
    argue about anything and everything. I'm an attorney, and you
    can hire me for either side, and I can charge. It's a great
    deal. But the reality is the Origination Clause ensures that
    the House--important--people's House, has the first say when it
    comes to bills raising revenue, and it's the Chamber most
    closest to the people. But at the same time, it's the same
    Chamber that it was when the Origination Clause was drafted
    because at that time, of course, the Senate was made up of
    folks that could get the votes of the State legislatures. And
    they were the States' guys, and they got picked by--sometimes
    it was the Governor; sometimes it might have been the Speaker
    of the House--but basically they weren't elected by the people,
    and they were chosen by just general assembly. Now they're
    elected. So it's kind of a different game.
        We have an evolving Constitution, and we change and we
    don't go back to what somebody necessarily said because things
    change, but the Constitution reflects political compromises
    made by the Framers to ensure competing interests of various
    States and regions were addressed, even though they changed
    when we elected the Senate. Foremost among these was the
    compromise of Congress itself, and it gave the House a little
    more emphasis because it was the people's House, and the
    Senators were the boss' House, so to speak.
        The Origination Clause reflects that balance, and it gave
    the House ``exclusive authority to originate bills'' for
    raising revenue. That clause gave the Senate broad leeway to,
    ``propose or concur with amendments as on other bills.'' That
    balance has worked for two centuries, and the House prerogative
    to originate all bills relating to revenue is established and
    respected. At the same time, the Senate's authority to amend is
    established and respected.
        The majority witnesses, however, believe the Origination
    Clause is in peril, and particularly, they allege that Congress
    did an end run around the Origination Clause when it passed the
    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. Sometimes
    you argue the facts. Sometimes you argue the law. Now you just
    kind of argue politics. While the Affordable Care Act is
    arguably not even a bill for raising revenue within the
    Origination Clause's meaning, even if the clause applied to the
    act, it is clear the act met the clause's requirements.
        The vehicle for enacting what ultimately became the
    Affordable Care Act was a tax bill that originated in the House
    which the Senate then amended by substituting language of the
    Affordable Care Act. In so doing, the Senate clearly acted
    within its authority within the Origination Clause to propose
    or concur with amendments to a House revenue bill as on other
    bills.
        I question the need for today's hearing when lower courts
    have already spoken and when the Supreme Court may be about to
    speak on this issue. This hearing serves little purpose other
    than to once again attack the Affordable Care Act, which the
    majority party has tried to repeal on 62 occasions and
    constantly failed, and I do enjoy the little engine that could,
    but that's kind of what we're experiencing here in Congress.
        The ACA has allowed almost 18 million Americans to get
    health insurance, including more than 236,000 Tennesseans who
    have received health insurance through ACA's changes,
    establishing the lowest rate of uninsured in 50 years. It ended
    discrimination by insurers against those with preexisting
    conditions, including women, allowed young adults under 26 to
    remain covered by their parents' insurance, benefitting 2.3
    million Americans, encouraged better, more efficient delivery
    of quality health care, and ensured that most premium dollars
    are spent on health care, not profits.
        I was proud to have voted for the Affordable Care Act and
    proud to vote 62 times not to go into the political demagoguery
    of trying to repeal what is one of our Nation's best efforts at
    joining the rest of the industrialized and civilized Nations in
    having health care for its people, saying that you have a right
    to exist and a right to live, and we should let every citizen
    have that opportunity.
        President Obama's signature achievement is one I am proud
    to have voted for and will strongly defend against all attacks,
    including those today in a Committee which I wish we were
    hearing voting rights; I wish we were hearing civil rights; I
    wish we were hearing opportunities to extend rights to people
    rather than taking health care away from them. I yield back the
    balance of my time.
        Mr. Franks. And I thank the gentleman.
        And I now yield to the Chairman of the Committee, Mr.
    Goodlatte from Virginia.
        Mr. Goodlatte. Thank you, Mr. Chairman.
        I appreciate your holding this hearing. You know, listening
    to the remarks of the gentleman from Tennessee, I've been
    reading the 17th Amendment to the United States Constitution,
    in fact, rereading the 17th Amendment to the United States
    Constitution, which provided for the direct election of United
    States Senators, and I can't see anything in this amendment
    whatsoever that says that the interpretation of the Origination
    Clause, which is provided for with direct, clear language in
    the United States Constitution, is in any way changed by the
    17th Amendment. So our Constitution doesn't evolve. It gets
    amended by specific black-letter language, and that language
    doesn't provide for any such change. And I would hope that
    regardless of what position people take on the substantive
    issues that come before the Congress, including health care and
    the Affordable Care Act, that people would not attempt to
    change the meaning of the Constitution in order to accomplish
    their current policy goals. The ends should not justify the
    means of surrendering power from the House to the United States
    Senate. This document has not evolved that power from the House
    to the Senate, and this Committee and this Congress, this House
    of Representatives, should do everything in its power to make
    sure that it does not evolve away from the people's House so
    that in the future, when we address issues that are important
    to Members of the House representing their constituents on
    either side of the aisle, that we do not find ourselves saying:
    Well, it's okay now. Let things start off in the United States
    Senate instead of in the House, even though the Constitution
    clearly provides for that.
        The Origination Clause was the result of a contentious
    dispute at the Constitutional Convention between big States and
    small States over the structure and powers of the Federal
    Government. The less populated small States feared that the
    Senate, where each State would have equal representation--still
    does--would have little control over raising revenue. Indeed,
    all versions of the Origination Clause that prohibited the
    Senate from amending revenue-raising bills were vigorously
    opposed by small State delegates. On the other hand, the
    Framers understood the importance of keeping the power to tax
    close to the people. This dispute was ultimately resolved by
    providing the Senate with the power to propose or concur with
    amendments as on other bills.
        Unfortunately, the exact scope of the Senate's power to
    amend House bills under this clause remains ambiguous today. I
    hope this hearing will help clarify the extent of the Senate's
    authority to propose or concur with amendments on revenue bills
    in addition to examining the original meaning of the term bills
    for raising revenue.
        Nevertheless, it's clear that Members of the House of
    Representatives have a duty to safeguard its constitutional
    prerogative in order to protect individual liberty from the
    dangers of concentrated power, and that duty is distinct from
    the Senate. In Federalist 58, Madison stated: The House of
    Representatives can not only refuse, but they alone can propose
    the supplies requisite for the support of government. They, in
    a word, hold the purse, that powerful instrument by which we
    behold in the history of the British Constitution an infant and
    humble representation of the people gradually enlarging the
    sphere of its activity and importance and finally reducing, as
    far as it seems to have wished, all the overgrown prerogatives
    of the other branches of the government. This power over the
    purse may, in fact, be regarded as the most complete and
    effectual weapon with which any constitution can arm the
    immediate representatives of the people for obtaining a redress
    of every grievance and for carrying into effect every just and
    salutary measure.
        It's clear from Madison that the Origination Clause was
    designed to be one of the many important constitutional tools
    that the House uses against the overgrown prerogatives of other
    branches of government or even the Senate. Therefore, it is
    important that we do not disregard this duty, and I thank our
    witnesses for coming, and I look forward to their testimony.
        I yield back. Thank you, Mr. Chairman.
        Mr. Franks. And I thank the Chairman.
        Mr. Cohen. Mr. Chair, Mr. Conyers won't be here today. I
    would like to introduce his remarks for the record.
        Mr. Franks. Without objection.
        [The prepared statement of Mr. Conyers follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. Franks. And, without objection, other Members' opening
    statements will be made part of the record as well.
        So now I will introduce our witnesses. Our first 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 Pacific Legal Foundation, he
    served in the Justice Department's Office of Legal Counsel, was
    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.
        Our second witness is Elizabeth Wydra. Ms. Wydra is Chief
    Counsel of the Constitutional Accountability Center. She
    frequently participates in Supreme Court litigation and has
    argued several important cases in the Federal courts of
    appeals. She was previously a supervising attorney and teaching
    fellow at the Georgetown University Law Center Appellate
    Litigation Clinic. After graduating from law school, she
    clerked for Judge James R. Browning of the U.S. Court of
    Appeals for the Ninth Circuit.
        Our final witness is Paul Kamenar. Mr. Kamenar is a
    Washington, D.C., attorney who provides legal counsel on legal,
    regulatory, and public policy matters, and guest lectures at
    the U.S. Naval Academy on constitutional and national security
    law. He is also a senior fellow of the Administrative
    Conference of the United States and a member of its Committee
    on Judicial Review. Mr. Kamenar was formerly a clinical
    professor of Law at George Mason University Law School, an
    adjunct professor at Georgetown University Law Center, and
    senior executive counsel at the Washington Legal Foundation.
        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 or her testimony in 5 minutes or less.
    To help you stay within that time, there's a timing light in
    front of you. The light switch 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
    witness' 5 minutes have expired.
        Before I recognize the witness, it is the tradition of the
    Subcommittee that they be sworn. So if you'll stand to be
    sworn, please.
        Will you raise your right hand?
        Do you solemnly swear that the testimony you are about to
    give will be the truth, the whole truth and nothing but the
    truth, so help you God?
        You may be seated. Let the record reflect that the
    witnesses answered in the affirmative. I want to welcome all of
    you here, and I now recognize our first witness, Mr. Gaziano,
    and please turn on that microphone before you start here.

     TESTIMONY OF TODD F. GAZIANO, EXECUTIVE DIRECTOR OF THE D.C.
      CENTER, SENIOR FELLOW IN CONSTITUTIONAL LAW, PACIFIC LEGAL
                               FOUNDATION

        Mr. Gaziano. Chairman Franks, Chairman Goodlatte, and other
    distinguished Members of the Subcommittee, thank you for
    inviting me to testify again on this topic. I'm proud to be
    part of the Pacific Legal Foundation, which is representing
    Matt Sissel in his constitutional challenge to ObamaCare. This
    hearing and the Sissel case focus on the Framers' most
    important check on Congress' power to tax, which some today
    regard as an annoyance to be circumvented with clever tricks.
    There was similar disdain for the constitutional rules for
    legislation in the 1970's that led to over 161 House and
    Committee veto bills. Luckily, the Supreme Court understood
    that the legislative rules that were set forth in the
    Constitution protected individual rights and not just
    congressional prerogatives.
        The Supreme Court in INS v. Chadha held that such finely
    wrought and exhaustively considered procedures for legislation
    could not be modified by modern designs and modern practices.
    The Court stressed that certain prescribed steps were still
    necessary to ``provide enduring checks on each branch and to
    protect the people from the improvident exercise of power.''
    The Court then struck down all those 160 laws or provisions
    thereof to protect our individual liberty.
        Well, I am delighted to be here today to testify on a
    similar protection of our individual liberty and to do so with
    Paul Kamenar, who I've worked with before, and with Elizabeth
    Wydra, who I believe has written about the best opposing view
    of anyone I've ever written. But as gifted a scholar as she is,
    even she can't defend the indefensible.
        My friend does seem to concede in a written testimony that
    the D.C. Circuit's newly minted primary purpose test is
    invalid. The four-judge dissent in the D.C. Circuit warned that
    this new test would allow the Senate to originate taxes by
    simply characterizing them as having weightier nonrevenue
    purposes. For example, the Senate could enact and originate a
    gas tax in a bill that promotes the environment. The founding
    generation did not think they had erected an optional
    limitation so easily defeated with the right incantation.
        Now turning to the text of the Origination Clause itself
    for its original meaning, it fails to satisfy the clause for
    two independent reasons. First, the Service Members Home
    Ownership Tax Act was not a bill for raising revenue within the
    meaning of the clause because it only cut taxes. Other
    provisions which increased penalties and accelerated filing
    fees to make it budget neutral were not taxes within the
    meaning. I will be glad to elaborate on that, but the result of
    that is that the Senate could not amend that bill at all with
    any additional taxes.
        Second, and I think this goes more to Chairman Goodlatte's
    question, even if the House bill was a bill for raising revenue
    within the clause, the Senate healthcare bill was not a germane
    amendment and thus not constitutional. In Flint v. Stone Hill,
    the Supreme Court said that a Senate amendment must be germane
    to the revenue bill that originated in the House. It is
    irrelevant whether the Senate's practice allows any amendments
    on nonrevenue bills. There was a germaneness requirement in the
    Articles of Confederation Congress, and that helped form the
    original understanding of the Senate's limited role to amend a
    House revenue bill.
        Second, the Senate's hotly disputed practice with regard to
    revenue bills in the late 19th century is almost completely
    worthless in determining the original public meaning of the
    clause, and it's especially ironic to rely on the Senate's
    views. It's like deferring to the foxes for the rules for
    raiding the henhouse.
        And, finally, the Supreme Court's germaneness requirements,
    which have been followed by numerous courts, is absolutely
    required to properly give the Origination Clause any meaning
    whatsoever. If the Senate merely had to wait for a House
    revenue bill of some type and then could substitute a
    completely different omnibus tax code, which could happen
    several times a year, that would render the clause empty.
    Interpretations of clauses that render them meaningless are an
    insult to the framing generation and any rational basis of law.
        I want to, since my time is limited, skip to one
    interpretation that Madison supposedly was quoted as saying
    that the Senate under the Origination Clause could gut and
    substitute a bill. That's kind of a minority view. It's very
    contrary to George Mason, most of the other Framers, and
    especially Story's interpretation that said that the Senate's
    amendment power would only be limited to a single line of text
    or a trifle to fix error. But even if Madison was right, that
    doesn't save ObamaCare because it might be constitutional in
    some cases to have a complete substitute language, but the bill
    still has to be--the Senate amendment still has to be germane
    to the House bill. And Madison didn't say otherwise, and no
    Framer said otherwise. If they had said otherwise, the
    Constitution would not have been ratified. There is simply no
    argument that the Senate's healthcare bill with its 20
    historically large taxes is germane to the 6-page
    servicemembers housing bill. There is no constitutional
    precedent whatsoever for that position. Thank you, Mr.
    Chairman.
        [The prepared statement of Mr. Gaziano follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. Franks. And thank you, sir.
        I now recognize our second witness, Ms. Wydra, and make
    sure that microphone is on.

            TESTIMONY OF ELIZABETH B. WYDRA, CHIEF COUNSEL,
                  CONSTITUTIONAL ACCOUNTABILITY CENTER

        Ms. Wydra. Good morning. Thank you, Chairman Franks,
    Ranking Member Cohen, and Members of the Subcommittee, for
    inviting me to testify today. It's a pleasure and an honor.
        As the Chairman noted, the Origination Clause 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. As the tax and history of the
    Constitution make clear, this provision was intended to strike
    a careful balance between the two Houses of Congress, giving
    the House the exclusive authority to propose legislation
    affecting the Nation's purse strings while ensuring that the
    Senate retained the right to amend such legislation, just as it
    could amend all other bills. This includes the strike-and-
    replace method of amendment used by the Senate in the ACA, as
    has been discussed, and more generally, since the founding. As
    Thomas Jefferson explained in his Manual of Parliamentary
    Procedure he wrote for the Senate in 1801, ``Amendments may be
    made so as to totally alter the nature of the proposition. A
    new bill may be engrafted by way of amendment on the words, be
    it enacted.'' Does the existence of the strike-and-replace
    amendment method of Senate amendment contemplated in the second
    half of the Origination Clause mean that the power given to the
    House in the first half of the Origination Clause to originate
    revenue bills has no meaning? Absolutely not. But don't take my
    word for it, even though I appreciate Mr. Gaziano's kind words.
        Let's listen to James Madison. At Virginia's ratifying
    convention, he noted that even though critics said that the
    Senate could strike out every word of the bill except the word
    ``whereas'' or any other introductory word and might substitute
    words of their own, the clause nonetheless kept the Nation's
    purse strings in the hands of the House because the House was
    free to reject the Senate's amendments to revenue bills. And in
    the Federalist Papers, Madison emphasized the importance of the
    Origination Clause by noting that the House had the power to
    propose as well as refuse when it came to the power of the
    purse. The Origination Clause thus makes the House the first
    and the last word on all revenue bills.
        Throughout history, the House has defended its
    constitutional prerogatives with vigor, mostly through the
    blue-slip process through which violations of the Origination
    Clause are raised and remedied.
        My written testimony goes through in greater detail the
    original meaning of the Origination Clause, so for now, I will
    turn to the legal challenges claiming that the Affordable Care
    Act violates this clause. Every judge to have considered the
    merits of this claim on the merits has rejected it. As stated
    plainly by conservative superstar Judge Brett Kavanaugh of the
    D.C. Circuit Court of Appeals, the Affordable Care Act complied
    with the Origination Clause. As he went on to write: The act,
    in fact, originated in the House, as required by the clause in
    H.R. 3590, which was itself a bill to raise revenue, and
    although the original House bill was amended and its language
    replaced in the Senate, such Senate amendments are permissible
    under the clause's text and precedent.
        Reinforcing the wisdom of these judges who have found that
    the ACA complied with the Origination Clause, it is important
    to note that at the time the ACA was making its way through
    Congress, no blue-slip objection was made on Origination Clause
    grounds in the House, despite vocal and vigorous opposition by
    many critics of the bill, some of whom are here today, on
    numerous other grounds.
        The fact that no Member of the House filed a blue slip on
    the Origination Clause ground is not constitutionally
    dispositive of the issue, but it does confirm what the
    application of constitutional text and history and court
    precedent show, that the ACA was enacted consistent with the
    requirements of the Origination Clause.
        As both a citizen and a constitutional lawyer, I applaud
    the Committee's interest in the vitality of the Origination
    Clause. I also would applaud a hearing on voting rights. The
    right to vote is a foundational right in our constitutional
    democracy, and I am grateful for the opportunity today to talk
    about the original meaning of this important provision of our
    Constitution. But the clause remains strong. Today the House
    remains as it has since the founding, the first and last word
    on all revenue bills, and it continues to defend its
    constitutional prerogatives through the blue-slip process when
    any Senate bills that might arise infringe on its Origination
    Clause authority.
        The fact that no one filed a blue slip to try to stop the
    ACA on Origination Clause grounds is not because the clause has
    lost its constitutional teeth. It's because there's no
    constitutional defect in the act in the first place.
        Thank you again, Mr. Chairman, and Members of the
    Subcommittee. I look forward to your questions and a great
    discussion today.
        [The prepared statement of Ms. Wydra follows:]

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                                   __________
        Mr. Franks. And I thank the gentlelady.
        And we will now recognize our third and final witness, Mr.
    Kamenar, and please turn on that microphone.

                  TESTIMONY OF PAUL D. KAMENAR, ESQ.,
                CONSTITUTIONAL AND PUBLIC POLICY LAWYER

        Mr. Kamenar. Thank you, Chairman Franks, Chairman
    Goodlatte, Ranking Member Cohen, and Members of the
    Subcommittee. Thank you for inviting me here again this morning
    to testify on Origination Clause as I did in April 2014 along
    with Mr. Gaziano.
        I want to particularly thank you, Mr. Chairman, for your
    continued leadership on this issue and your fidelity to your
    oath of office to support and defend the Constitution by
    reintroducing House Resolution 392 with many of your
    colleagues, expressing the sense of the House that the
    Affordable Care Act violates the Origination Clause, and by
    filing a friend-of-the-court brief with 45 of your colleagues
    in the court of appeals and the Supreme Court in the pending
    Sissel case. And I am very honored to have represented you
    along with my co-counsel, Joseph Schmitz, in that case, and we
    have submitted the brief and the dispositive law review article
    for the record.
        And I, finally, applaud you for holding these important
    hearings to remind the Congress, the executive, the judiciary,
    and the American people, of the critical importance of the
    Origination Clause to the founding of this country and how it
    is in jeopardy to being reduced to nullity.
        Now, the history of the clause, as we say in our brief and
    my statement, few clauses have such a rich and historical
    significance as the Origination Clause. With its origins in the
    Magna Carta of 1215 A.D., the principle of taxation only by the
    immediate Representatives of the people was so firmly
    entrenched in English tradition, and its implementation on the
    American side of the Atlantic was nearly universal in colonial
    and early State legislatures.
        As the Chairman noted, without its guarantee, the 1787
    convention and ensuing ratification debates, our Constitution
    would simply not exist, at least not in its present form, that
    the restriction of the Senate from originating taxes was the
    cornerstone of the accommodation of the Great Compromise, which
    satisfied the necessary number of States to ratify our
    Constitution.
        Let me quickly address the first part of the clause, which
    says all bills for raising revenue must originate in the House.
    Does the Affordable Care Act raise revenue? That's an easy
    answer. Of course, it does. Yet in a remarkable decision, the
    majority panel the D.C. Circuit said that the bill which raises
    $500 billion in new taxes is not a revenue-raising bill because
    its primary purpose is to promote health care and not raise
    revenue. There is simply no logical or historical basis for
    this novel interpretation. As the four dissenting judges in
    Sissel noted, the act imposes numerous taxes to raise revenue,
    $473 billion in revenue over 10 years. It's difficult to say
    with a straight face that a bill raising $473 billion in
    revenue is not a bill for raising revenue.
        Now, if the purpose test is correct, the Senate could
    easily circumvent, as Mr. Gaziano said, by attaching any kind
    of purpose to raising taxes, to protect the military, the
    environment, health care, and I note that even Mrs. Wydra and
    her clients in the Hotze case agree that this is a bill for
    raising revenue. So we all agree on the first clause. There's
    consensus here.
        It's the second clause in terms of the Senate amendment
    power that we have some dispute. Now the history of that
    provision demonstrates that the scope of that amendment power
    is very limited and narrow, not the broad, sweeping power that
    allows the Senate here to take a 6-page bill that gives tax
    credits, go to the House where the Senate figuratively tears
    off the House bill number and pasted it on top of a 2,071-page
    ObamaCare bill, and said that this bill originated in the
    House.
        To summarize our main points in our brief quickly, that the
    words ``originate'' and ``amendment'' and ``as on other bills''
    must be interpreted how the amendment process was understood at
    the time of the ratification, not subsequent 19th- and 20th-
    century practice.
        If you'll look at the history of this amendment, the Senate
    power was actually a compromise to prevent the House from
    tacking on or smuggling in nonrevenue, nongermane measures to a
    revenue bill which would preclude the Senate from amending
    that, not being able to strip out those nonrevenue measures. So
    they said: Okay, you could amend a revenue bill with respect to
    the provisions there.
        Two, no one at the time thought the Senate could amend a
    House bill with a nongermane bill, let alone one that guts and
    replaces the House bill in its entirety.
        Three, indeed the unicameral Continental Congress in 1781
    made such amendments not in order. ``No new motion or
    proposition shall be admitted under color of amendment as a
    substitute for a proposition under debate until it is postponed
    or disagreed to.'' Note the phrase ``under color of
    amendment.'' And what's happened here is that under a color of
    amendment, the Senate in this case actually originated the
    revenue-raising bills.
        Finally, James Madison, which Ms. Wydra talked--mentioned,
    the father of the Constitution, called the Senate's power ``a
    paltry right of the Senate to propose alterations to money
    bills.'' And the fact that no one issued a blue slip is
    constitutionally irrelevant and would not make any sense anyway
    since Chairman Pelosi at the time--Speaker Pelosi would not
    have brought that to the House floor.
        Unfortunately, the dissenters in the Sissel case said that
    this gut-and-replace amendment was constitutional. Yet the
    three-judge panel, which said that this is not a bill for
    raising revenue said: No, that's not correct; that would render
    the power under the Origination Clause ``an empty formalism.''
        In conclusion, I'd like to quote Justice Thurgood
    Marshall's citing Federalist 58. He said it best in the Munoz-
    Flores case, ``Provisions for the separation of powers within
    the legislative branch are thus no different in kind from
    provisions concerning relations between the branches of our
    government.'' Both sets of provisions safeguard liberty.
        And if the Supreme Court on Friday does not review and
    later reverse the lower courts in Sissel, the original meaning
    of the cornerstone of the Great Compromise that allow the
    Constitution to be ratified would erode and unfortunately turn
    the Great Compromise into a great hoax. Thank you.
        [The prepared statement of Mr. Kamenar follows:]*
    ---------------------------------------------------------------------------
        *Note: Supplemental material submitted with this statement is not
    reprinted in this record but is on file with the Subommittee, and can
    also be accessed at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104322.

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                                   __________

        Mr. Franks. I want to thank all of the witnesses for very
    invigorating testimony.
        And we'll now proceed under the 5-minute rule with
    questions, and I'll begin by recognizing myself for 5 minutes.
        I think one of the real issues before us today is the
    meaning of the Origination Clause. And not to be the blooming
    obvious award here, but, indeed, if Ms. Wydra is correct that
    any misapplication could be corrected by a followup vote by the
    House when the legislation returns, that's true of a bill that
    originated in the Senate in the first place. So, once again, if
    the Senate can take a House bill, nongermane, and strike
    everything and make the largest revenue-raising bill in the
    history of the Republic into it, I have no ability in terms of
    engineering to ascertain how the Origination Clause retains any
    meaning whatsoever.
        And I appreciate the Ranking Member's reference to the
    ``Little Engine That Could.'' If my grasp of that classic
    literature in which he took his reference is correct, I think
    it turned into the little engine that did. We can hope.
        Mr. Gaziano, in your written testimony, you state that,
    ``like the guarantee of free speech, the Origination Clause
    guarantees a deeply ingrained individual right.'' I find this
    point very compelling given that one of the ``repeated injuries
    and usurpations'' penned by Thomas Jefferson against the King
    of Great Britain in the Declaration of Independence was
    ``imposing taxes on us without our consent.''
        With this in mind, who is the Origination Clause intended
    to protect? How is it intended to protect them, and who is
    responsible for ensuring that protection?
        Mr. Gaziano. Thank you very much for the question. The
    Origination Clause certainly isn't designed to protect just the
    prerogatives of government actors. It protects immediately
    current taxpayers, but it also protects any future taxpayers
    and those who may be affected by taxes. If the economy is
    tanked because of high taxes, then we are all deeply affected.
    But as the Supreme Court noted, that the legislative procedures
    that are set forth in the Constitution and aren't the optional
    variety which you all can make under the rules provision, those
    finely wrought provisions must be justiciable in the courts
    when anyone is adversely affected by a law.
        Getting back to the blue slip issue, House Members did
    object to the procedures, the abbreviated procedures in the
    House bill. This is, as Mr. Kamenar alluded to, we must pass--
    the then Speaker's statement: We must pass the bill before--to
    find out what's in it.
        But moreover, Members didn't understand that the penalty
    provision of the individual mandate, which is at the heart of
    our challenge in the Sissel case, was a tax until the Supreme
    Court majority said it was a tax, and that's why the courts
    must remain open to protect our individual rights. One of the
    greatest expositors of the Constitution did analogize the
    Origination Clause's protection to the protections of the First
    Amendment. That was Joseph Story.
        And just as Congress may believe that it isn't abridging
    free speech, and it may debate a point of order, and both
    Houses may rule that it doesn't abridge free speech, that
    doesn't mean that individuals whose rights are infringed by
    Congress' views can't and shouldn't go to court.
        Mr. Franks. Well, thank you. I know it's been suggested
    that our Constitution is evolving. It is my perspective that if
    this is really a living document, then perhaps it's also a dead
    letter. My hope and I hope that the responsibility of this
    Committee is to keep the Constitution from evolving into vapor,
    and the Origination Clause I think is at stake in this case.
        Mr. Kamenar, if allowed to stand, what effect would the
    D.C. Circuit's decision in Sissel v. HHS have on Federal
    courts' understanding of the Origination Clause, and what
    effect could it have on Congress?
        Mr. Kamenar. Well, the D.C. Circuit opinion right now says
    that ObamaCare was not a bill for raising revenue. That, as I
    said in my testimony, is totally ridiculous, and Ms. Wydra
    would agree with that. So it doesn't have any impact upon this
    body. This body judges what is constitutional and what its
    prerogatives are. Until the Supreme Court rules on this, the
    decisions of courts of appeals have really no effect on what is
    the ultimate and final word on the matter. And, again, you have
    the dissenters ruling that this could be amended by the
    Affordable Care Act. Again, they were the dissenters, and they
    had no authority, judicial precedent with respect to the
    decision.
        So the short answer is that that Court's ruling did not
    have any impact on this. It may have impact on other courts
    that look at this, and there are several pending in other
    courts, but each circuit court can judge on its own what the
    interpretation means.
        Mr. Franks. Thank you, sir.
        I'll now recognize the Ranking Member for 5 minutes.
        Mr. Cohen. Thank you, Mr. Chair.
        Firstly, I'd like to comment that President Obama asked us
    all to kind of be more civil and work together, and I would
    like to suggest that our Chairman is one of the most civil and
    decent fellows in the Congress, although there are many of
    them, and I thank you for that.
        You're always a gentleman, and while we disagree on things,
    and sometimes I'm a bit broad-shouldered, I guess, in the way I
    approach things, you are always very, very nice in how you
    respond. And you taught me a lesson today. You're right. I
    brought up the ``Little Engine That Could,'' kind of like Ted
    Cruz brought up ``Green Eggs and Ham,'' and in the end, of
    course, they sort of like ``Green Eggs and Ham.'' So both of us
    brought up books that we didn't really think about the actual
    story. But in the same object as Ted Cruz, it made me think
    about this Committee and what we do, and we discuss these
    issues about the Constitution, and it's important that we do.
    And we probably, I would suggest, Mr. Chairman, maybe take up
    consideration of natural-born citizen. That might be really
    germane and relevant today to have a hearing on whether or not
    Senator Cruz is a natural-born citizen, as the Constitution
    says you must be to be President of the United States, because
    we could have a real terrible situation if the Republicans
    nominated somebody who couldn't actually take the oath of
    office. And I would just submit that for your consideration.
        I think that's certainly a hearing that would be relevant,
    timely, and appropriate because his mother--he was born in
    Canada, and I understand his mother even voted in Canada. And
    while Canada is a great country, and I think Mr. Trudeau is a
    great guy, he shouldn't be President of the United States, and
    he can't be President of the United States because he is not a
    natural-born citizen.
        This issue is going to be decided by the Supreme Court, and
    I guess on Friday they're going to decide whether they're going
    to hear it or not. I think we got maybe an idea of whether it
    was going to be heard or not last night. Six Supreme Court
    Justices did what Supreme Court Justices have done for a long
    time, and that is show respect for the President and attend the
    State of the Union address. Justice Scalia and his two votes
    and Justice Alito failed to appear, and I suspect since you
    need four folks to get a hearing, that you'll be one short, and
    this will be mooted. But we'll find out on Friday, but I think
    there was maybe a little groundhog show yesterday in the fact
    that six Justices did come and respect the President.
        I also note--and it's something that's bothered me since we
    passed this bill, which is great--but people can call a bill
    whatever they want, and I appreciate the lady and gentleman who
    refer to it and Mr. Frank as he does in an always an
    appropriate manner, the Affordable Care Act, or ACA. ObamaCare
    we know is not really praising Obama. That's a pejorative
    really in politics, and we can't get around the fact that
    people want to attach it. And there's a whole bunch of
    problems. President Obama is a great man and a great human
    being who has tried to bring the parties together and tried to
    bring this country forward, and his election was a great
    testament to breaking ceilings and showing that all people,
    regardless of their race, their religion, other factors other
    than where they're born naturally, have the opportunity to be
    President in this country. It's a great country for that
    reason. And he scorned people who use the politics of race and/
    or religion.
        But when we talk about ObamaCare, a lot of people are
    conjuring up the fact that maybe this man with this unusual
    name has some birther problem himself, which of course he
    doesn't. It's Senator Cruz that might, ironically enough, but
    Mr. Trump is right on that. But it's just unfortunate that
    people continue to do that because that's disrespect for the
    President and disrespect for the whole concept and the
    celebration that this country should have and did have in many
    quarters that somebody who is of African American parentage
    could become President of the United States and could be a
    great leader and a great moral force for this great Nation.
        So it's been an interesting hearing. And I'd ask Ms. Wydra,
    is there anything you've heard today in the comments of either
    of your two compadres here that you'd like to comment on?
        Ms. Wydra. Sure.
        First, thank you, Ranking Member Cohen for giving me the
    opportunity because I want to respond first to a
    mischaracterization of the brief that we filed in the Hotze
    case in the Fifth Circuit. That brief actually did not take a
    position on whether the ACA is a bill for raising revenue. We
    said however the Court decided that issue basically did not
    matter because it was unquestionably clear that the Affordable
    Care Act did comply with the requirements of the Origination
    Clause. And, in fact, while there have been some disputes among
    the judges who heard the merits of this case about how those
    claims lose, there is universal agreement among the judges who
    have heard these cases, both conservative and liberal judges,
    that the case is a loser.
        And so I think that, you know, the Supreme Court as you
    mentioned, will be considering in conference this Friday.
    Generally, they don't take up cases for review if there isn't--
    this is just a general rule--if there isn't a circuit split.
    There is no circuit split on this issue. So I think that's
    important to note that, just as throughout history, the Supreme
    Court has not ever struck down an act of Congress as a
    violation of the Origination Clause, I don't think they will do
    so in this case because it clearly complied with the
    Origination Clause, both halves, under the original meaning of
    the Origination Clause, under Supreme Court precedent, which
    was cited repeatedly to say that the Origination Clause does
    not apply to bills for other purposes which may incidentally
    create revenue. And I think there's a really interesting debate
    which we can have about whether or not that test is supported
    by the original meaning. It really comes down to, from a
    textual standpoint, whether the Constitution's substitution of
    the words ``for raising revenue'' for the prior language
    referencing bills ``for raising money for the purposes of
    revenue'' is a stylistic change or a substantive change. And as
    a Con-law nerd, I'm delighted to get into that. But the real
    point here today is that however you slice it, whichever way
    the courts rule on the actual test, the Affordable Care Act did
    comply with the requirements of the Origination Clause.
        Mr. Cohen. Thank you. So, in essence, we're just whistling
    Dixie, and if I'm wrong in saying whistling Dixie because there
    was some other way, the Chairman will correct me as he did
    earlier.
        Mr. Franks. If you listen to the ``Little Train That
    Could,'' he was whistling Dixie too.
        I now recognize the gentleman from Iowa, Mr. King, for 5
    minutes.
        Mr. King. Thank you, Mr. Chairman.
        I thank the witnesses for your testimony. I point out that
    my good friend from Tennessee can sometimes be a bit of an
    ornery agitator and slide off topic from time to time. He'll be
    very interested in knowing that as I walked into my office on
    Monday, the first time I had set foot in there in 2016, I
    walked back to what I call our leg shop, and there I see there
    are two new faces. And they were two interns that I had not met
    before and actually wasn't aware that they were coming on
    board. So as I introduced myself to them, the first one--her
    name is Sydnee--and right away, I say, ``Where are you from?''
        And she said, ``I was born in Canada.''
        ``Born in Canada. Well, why are you here?''
        ``Well, because I'm a born in Canada with an American
    citizen mother and a Canadian father, and I'm a dual citizen.''
        The second I heard that, I picked up my iPhone, and I
    interviewed her. This is 2 minutes long, and I'd like to play
    it for you all so you can hear how simple this argument
    actually is.
        [Audio recording played.]
        Mr. King. ``Maybe because of politics'' was the last answer
    that we heard from her. And for me----
        Mr. Cohen. Would the gentleman yield for just a minute?
        Mr. King. I would yield to the gentleman from Tennessee
    since he brought up the topic.
        Mr. Cohen. Thank you, sir. Thank you. I think that there's
    a proper response, and I'd like to play it right now.
        Mr. King. Let me reclaim my time on that, and since I'm
    going to claim the last word in this particular hearing and
    utilize my time then to examine the witnesses, but I'm always
    opened to dialogue in the elevator or anyplace else, Mr. Cohen.
        Mr. Cohen. Chris Christie would like this one.
        Mr. King. I thought that it was quite interesting and
    ironic and coincidental that I would walk into my office----
        Mr. Gohmert. Mr. Chairman, the gentleman from Tennessee is
    out of order.
        Mr. King. I thought it was coincidental with excellent
    timing that I would walk into my office and find a young lady
    who hasn't been in this arena, never been to law school, and
    who happened to find herself in a very, very similar, if not
    identical, birth circumstances of Senator Ted Cruz, who
    understood this with such utter clarity. And the default is
    this: If you're born to an American citizen, say on some other
    soil, say the son or daughter of a missionary or missionary
    couple, then they're automatically American citizen by virtue
    of the citizenship of their parents. And no one doubts that, or
    we wouldn't have missionaries traveling around the world. They
    would stay here, I would think. And she understood with such
    clarity. She said if you're not a naturalized citizen, then you
    are a natural-born citizen by default. And that's what the 1790
    statute says. That's what all the scholarship says with except
    to people that I suspect have that politics in the way of their
    rationale.
        So I'd like to pose a quick question to each of the
    panelists if I could, and it's going to be a general one. This:
    I'm troubled. It looks to me like I'm seeing Supreme Court
    decisions, circuit court decisions that are calculating the
    policy instead of the text in the Constitution. And it looks to
    me like the text of the Constitution with the Origination
    Clause--if the courts--if the courts do not honor the text of
    the Constitution and the original understanding, they realize
    that it blows the whole ACA up, and we have to start all over.
    I'd be very happy with that.
        But it seems to me that they're not reading the text of the
    Constitution and applying it any longer. And I used to be able
    to make the call on what I expected the Court would rule, and I
    was right so often that I had a sense of confidence. Now I no
    longer have that confidence.
        So my question is, if we have a rogue court, especially a
    rogue court, are we wedded then to Marbury to the extent that
    we have no recourse to a rogue Supreme Court? Or is there
    another alternative----
        Mr. Franks. Would the gentleman direct that to one of the
    witnesses?
        Mr. King. I would go to Mr. Gaziano.
        Mr. Gaziano. I'll just give two very brief answers. First
    of all, I don't--although we all disagree with every court
    sometimes, I think the Supreme Court will easily get this
    right. And as my precedent for this Origination Clause
    question, if they take it, and as I stated in my written
    testimony, if they don't take the case we bring for Matt
    Sissel, there are other cases pending. Others will be brought.
    They have to take it. So it's really important for the Supreme
    Court to provide guidance. And in the Sackett case we won 9-0,
    3 years ago, every single judge, nine district courts, five
    circuit courts, had ruled the other way. There were many, many
    more judges who got that question wrong. But when it went up to
    the Supreme Court, the Pacific Legal Foundation won 9-0. Even
    Obama's own appointees voted against the EPA.
        So the fact that the circuit courts are strongly divided
    and four dissenting judges in the D.C. Circuit thought that the
    panel decision was dangerous is an additional reason for the
    Supreme Court to correct the error, but I have every confidence
    that when they take this case--they've really got to take this
    case; they ought to take it now--they will do the right thing.
        Secondly, if you don't mind, three other times in my
    testimony, I stressed, as I did the last time, the importance
    of you all having this hearing and getting it right regardless
    of whether the Court gets it right and regardless of when they
    get it right. So if the Supreme Court doesn't take this, it's
    absolutely important that the House enforce the original
    meaning of the Origination Clause because you have a
    responsibility to interpret and apply the original meaning of
    the Constitution, and you can do so. And guess what? You get
    punished by the voters when you don't, as Chairman Frank's
    amicus brief in the D.C. Circuit so ably pointed out and that
    you joined.
        Mr. King. I accept your statement. I'm far more cynical on
    the result out of the Supreme Court on this particular case. I
    appreciate your testimony.
        I yield back the balance of my time.
        Mr. Franks. I now recognize the gentleman from Texas, Mr.
    Gohmert.
        Mr. Gohmert. Thank you, Mr. Chair.
        And just so people get the historical perspective on the
    Supreme Court attending the State of the Union, since I've been
    in Congress, the Supreme Court has never had all nine Justices
    attend a State of the Union address. And since 9/11, my
    understanding is neither the House Republicans, House
    Democrats, Senate Republicans, Senate Democrats, ever have all
    of their Members come to a State of the Union since 9/11. And
    it goes back to concern about what happened in Clancy's book
    back in the early 1990's where someone crashed a plane into the
    Capitol and took out everybody because everybody, including the
    Supreme Court, were all there. We just want to make sure that
    doesn't happen.
        In Alito's defense, if I were on the Supreme Court, which
    I'll never be because I wouldn't take the guff they do at the
    Senate hearings, but if I were on the Supreme Court and knew
    what was involved in a decision I'd made, such as Citizens
    United, had the President of the United States reflect his
    ignorance of what the case actually said, what it meant, what
    it represented and what the Court said, I would never come back
    to another State of the Union he gave again and be lectured by
    somebody that misrepresented what I said, what I knew, when my
    knowledge and my intellect and my writings were far greater
    than anything he had to say at the State of the Union address.
        Now, Ms. Wydra, you said this case is a loser. But Mr.
    Kamenar, has there ever been a Supreme Court case that's been
    taken up that dealt as directly as the cases we're considering
    here on the issue of the Origination Clause?
        Mr. Kamenar. Thank you, Mr. Gohmert. No. The Supreme Court
    has never ruled on a case where the Senate took a House bill,
    gut and replaced the entire thing and added revenue-raising
    measures. And I just want to correct the record here from Ms.
    Wydra. I'm quoting from her brief that she filed: ``The
    Origination Clause, in its final form, provided for an
    expansive category of bills that would need to originate in the
    House--that is, all 'bills for raising revenue,' even those
    that did not have as their purpose the raising of revenue.''
    The D.C. Circuit said that the ACA had its purpose for
    improving health care. So she obviously disagrees with that.
    You read her beginning of her first four or five pages of
    opinion. She can't say she agrees with the majority of the D.C.
    Circuit, so I'm quoting her brief there. But to get to your
    point, no----
        Ms. Wydra. That's about the original meaning of the
    Origination Clause. That wasn't about the D.C. Circuit's
    opinion in particular.
        Mr. Kamenar. What do you think of the D.C. Circuit? Do you
    think that the----
        Mr. Gohmert. Well, if we could keep the format where I get
    to ask the questions. Thank you.
        Well, let me ask, Mr. Gaziano, if the Supreme Court does
    not take this case or takes it and rules, in fact, that either
    this was not a case that raised revenue when clearly it does,
    or they rule that it did originate in the House, can there ever
    again be any meaning applied to the Origination Clause without
    which we would have no Constitution like this today?
        Mr. Gaziano. There would probably be no effective meaning
    to the Origination Clause in the court, but that would increase
    the importance of this body doing the right thing. As I
    mentioned in my written testimony--or until the Supreme Court
    changed its opinion and correctly interpreted the Constitution,
    which of course has also happened throughout our history when
    the Supreme Court gets something wrong. But it would be even
    more important for this body to establish firewalls and apply
    the original meaning. I would submit that if you believe the
    Supreme Court was wrong, and you have the independent power to
    interpret and apply the Constitution, you could not follow the
    Supreme Court's opinion. You would have to vote to stop a
    Senate bill that violated the Origination Clause. You would
    also suffer political damage with the voters if you didn't, but
    I would submit it would be your constitutional duty.
        Mr. Gohmert. Having been here in Congress now for 11 years,
    I can tell you that if the Supreme Court rules that the
    Constitution says or doesn't say something, that often is
    enough to be a winning argument among Members of Congress who
    don't pay as much attention to the Constitution but seem to
    think, well, if the Supreme Court says it, then it must be the
    law, when, in fact, as we know they get things wrong and have
    to be corrected later by another court. Thank you, Mr.
    Chairman, for the time.
        Mr. Franks. I thank the gentleman.
        I thank all of the witnesses. I almost wish this hearing
    wouldn't end, but not that bad. So this, indeed, concludes
    today's hearing.
        And, without objection, all Members will have 5 legislative
    days to submit additional written questions for the witnesses
    or additional materials for the record.
        And, again, I thank the witnesses and the Members and even
    the audience, and this hearing is adjourned.
        [Whereupon, at 10:08 a.m., the Subcommittee was adjourned.]

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