In this third post on the Origination Clause, I turn to language in
the Clause that is not entirely clear: “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” What does this italicized language mean?
Perhaps
the most obvious interpretation is that it is referring to two
situations: (1) the Senate may propose Amendments or (2) the Senate may
concur with Amendments. In the second situation, the Constitution
allows the Senate to take the House bill, amend it, pass it, and then
send it to the House. If the House approves it, then the bill is passed
by the Congress as a whole. In the first situation, the Senate merely
proposes amendments to the bill but does not pass them. If the House
likes some of the proposals, it passes them as part of the bill and then
sends that bill to the Senate for passage.
One
question about this interpretation is why the Constitution would have
specified both options. My guess is that it was done to reflect the
fact that historically (in the British Parliament, in the American
colonies, and in the independent American states) both actions were
taken by upper houses in responses to money bills passed by lower houses
and were controversial under the constitutional rules then in play,
which often gave the lower House significant power over money bills. If
memory serves, I believe that some upper houses would propose taxes
that differed from those offered by the lower house and the lower house
refused to even read the proposals. Thus, the Origination Clause makes
clear that the Senate has the right either to make proposals to the
House or to amend the House bill and pass the amended bill in the
Senate.
Does any of this have implications for the Obamacare
lawsuit? It may. Consider these two possible implications. First,
Andrew Hyman argues in an entertaining post
that “concur with amendments” requires some sort of actual agreement
with what the House did. That might be the meaning of “concur” but if
the interpretation I mention here is correct, then Hyman’s suggestion may not be right. Instead, the “concur with amendments” language might simply refer to the Senate passing an amended bill as opposed to proposing one without passing it
Second,
one might argue that the proposal power was added to address the
situation when the Senate attempted to make a large amendment to the
House's bill, including at the extreme entirely replacing it. If the
Senate were to do that, one might argue that the House could not pass
that amended bill in the Senate. Instead, the Senate would have to
propose the amendment and send it back to the House to pass. If the
Houses passes it, then the Senate can pass it afterward. Under this
interpretation, the proposal power was added to address the situation
involving large amendment and what the Senate did with Obamacare by
replacing the bill and passing it was not allowed. While this is
a possible understanding of the Clause, one would want some significant
evidence from the Framing era before taking it very seriously.
Posted at 7:23 AM