[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
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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
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
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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
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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:]*
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*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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
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.]
[all]