On August 7, the D.C. Circuit denied a request for the court to hear en banc a challenge to the PPACA (“Obamacare”) based upon the Origination Clause in Article I of the Constitution. Several judges dissented from that denial, and Judge Brett Kavanaugh wrote that dissent.
The Origination Clause is short and sweet: “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.”
The issue now is whether it was okay for the Senate in 2009 to completely delete every last word of an unrelated House-originated revenue bill, in order to make room for a huge amendment now called “ObamaCare” (shorthand for the “Patient Protection and Affordable Care Act" or PPACA). Here is the part of Judge Kavanaugh’s dissent that I found most interesting:
[W]hat happens when the original House-passed bill does not contain any revenue-raising provisions at all? Can the Senate amend such a bill to add revenue-raising provisions? Under the prevailing view, the original House-passed bill must itself contain revenue-raising provisions in order for the Senate to permissibly add revenue-raising provisions through its amendment process. See James V. Saturno, Congressional Research Service, The Origination Clause of the U.S. Constitution: Interpretation and Enforcement, at 6 (March 15, 2011). But this case does not require a definitive judicial answer to that question because the original House bill here in fact contained revenue-raising provisions.
In my view, this last sentence from Judge Kavanaugh is incorrect, because the scope of the Senate’s ability to amend revenue bills is the same as its ability to amend non-revenue bills, per the last four words of the Origination Clause. That is, the Senate can only amend revenue bills “as on” non-revenue bills. Thus, if the Senate cannot add revenue-raising provisions to non-revenue bills, then it cannot add revenue-raising provisions to revenue bills.
Back in October 2013, Seth Barrett Tillman addressed this same issue here at this blog. He argued against the prevailing view that the original House-passed bill must itself contain revenue-raising provisions in order for the Senate to permissibly add revenue-raising provisions through its amendment process. Seth wrote:
The Constitution’s text does not demand that bills for raising revenue originate in the House qua as revenue bills, but only that any bill which has the character of a revenue bill prior to final passage must have originated in the House. It follows that there is no limit at all in regard to the Senate’s amendment power.
Seth is correct (and Judge Kavanaugh incorrect) that this is a critical issue with respect to the present case about the PPACA. But I disagree with Seth’s conclusion, because the Origination Clause does not say the following: “All Bills for raising Revenue shall have originated in the House of Representatives….”
The framers did not want the Senate’s amendment power to be unlimited. Their main objective was merely to arm the Senate with an ability to strip out foreign matter. As Theophilus Parsons explained during the Massachusetts Ratification Convention: "representatives might tack any foreign matter to a money-bill, and compel the Senate to concur or lose the supplies." Madison said basically the same thing in Federalist 58: "The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government." But don’t take Parsons’ word for it, or Madison's word for it. Just read the clause.
SCOTUS may or may not take this case. I hope they do. If so, they ought to just say what the law is and let the chips fall where they are supposed to fall. There would be immense pressure on Congress to address the problems that were addressed in the PPACA. The responsibility properly belongs with Congress rather than with the Court to ensure that the country has a compassionate but economical health care policy.
MIKE RAMSEY ADDS: Rick Hasen at Election Law Blog has interesting comments on the case here, suggesting that it might have a shot at Supreme Court review.
I'm entirely in agreement with co-blogger Andrew here, and I find Judge Kavanaugh's opinion (with all respect to one of the best originalist-textualist judges on the court of appeals) baffling. Why does it matter whether we ignore the origination clause altogether (the D.C. Circuit panel's approach) or we say that the clause applies but that it allows the Senate effectively unlimited ability to circumvent it through delete-and-replace "amendments" (which appears to be Judge Kavanaugh's approach)? The question is, shall we treat the origination clause as imposing some meaningful limit on the Senate (as surely it was intended to do), or shall we ignore it because it's inconvenient and made somewhat pointless by the Seventeenth Amendment?
Posted at 8:40 AM