[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
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

98-282 PDF                     WASHINGTON : 2016 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001      
      
      
      
      
      
      
      
      
    
    
    
    
    
    
    
    
    
    
    
      
      
      
      
                       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:]
   
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
   
    
                               __________
    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.
      
      
      [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]