Sissel v. United States Department of Health & Human Services

A by Circuit Judges statement SISSEL, Appellant Matt PILLARD, ROGERS, WILKINS, v. concurring in the denial of rehearing en DEPARTMENT STATES OF UNITED banc, is attached. SERVICES, AND HEALTH HUMAN al., Appellees. et A Judge statement Circuit KAVANAUGH, with whom Judges Circuit

No. 13-5202. HENDERSON, BROWN, and Appeals, United Court of States join, dissenting GRIFFITH from the District of Columbia Circuit. rehearing banc, denial en of is attached. Aug. PILLARD, WILKINS, ROGERS, AND of Judges, concurring

Circuit the denial banc: rehearing en A of majority the court has voted Hadzi-Antich, Theodore Paul James deny petition for en banc rehearing Beard, II, Sandefur, Timothy Pacif- Mason statement, dissenting this case. A howev- Sacramento, CA, Foundation, Legal ic er, original panel charges opinion Appellant. undermining liberty by individual upset- Klein, Stern, B. Beth Alisa Mark B. S. ting the balance of between the two Brinkmann, Counsel, Doj Appellate Stuart Congress. Houses of See Dissent at 1064- Justice, Delery, Department F. U.S. opinion thing. 65. Our does no such DC, Machen, Jr., Washington, Ronald C. Our examination of the Origination Office, Esquire, Attorney’s Washing- U.S. history, Clause’s text and as well as con- DC, ton, for Appellees. gressional practice Court GARLAND, Judge; precedent persuaded Before: Chief related *, ROGERS, TATEL, ground us that the clearest and narrowest HENDERSON *, *, resolve challenge GRIFFITH on which to Sissel’s BROWN *, SRINIVASAN, payment required under section 5000A KAVANAUGH MILLETT, WILKINS, Act, Care PILLARD and Affordable 26 U.S.C. 5000A, rely § Judges. was Circuit purposive approach. Court’s established Petition for En Banc Rehearing On recognized National Federa- ORDER (NFIB) v. Independent tion Business Appellant’s petition rehearing en — Sebelius, -, banc, thereto, response the briefs (2012), that, L.Ed.2d 450 “[a]l- support appellant amici curiae in though payment will [section 5000A] court, circulated to the full and a vote were do people raise considerable revenue [if requested. majority was Thereafter ‘sign plainly designed is up’], active judges regular, court expand coverage,” health insurance ac- petition. service did not vote in favor of the that the of the Af- knowledging foregoing, it Upon consideration of the (“ACA”) Act and its tax fordable Care conduct, penalty spur not to raise petition be denied. was ORDERED * BROWN, HENDERSON, Judges petition. Circuit GRIFFITH, grant and KAVANAUGH would at operations gov- interpreted tives has the Clause

revenue the times broadly Supreme more than does the ernment. Court, dissent, it panel, the or the coun- prudential reasons Doctrinal and the dis- prerogative retains do so. The on against relying the alternative seled the the history sent’s discussion of Con- the en ground proposes that the dissent as the stitution’s ratification relevant Among things, adopt. banc court analysis Origination Clause omits essential more panel’s the narrow course avoided context that undercuts dissent’s con- historically less rooted categorical and clusions. See Dissent 1061-62. holdings approach that the dissent’s would (1) containing up take dissent’s con- require: principal that all bills We designate not the funds provisions that do cerns below. by specified government

raised for use a Clause, Origination implicate the

program I. may that amend House- the Senate rests, must, panel opinion The on as originated bills without limit. The revenue binding Supreme precedent. The Court reading of contrary former is to the best Origi- Supreme Court has never found an law, ap- does governing support which And, sep- nation Clause violation. in three legis- plication Origination Clause to spanning century, arate cases more than a may like The be lation the ACA. latter that controlling it held wheth- variable or, contrary practice re- congressional statutory provision er a falls within the latedly, perceived judicial be as endorse- the Origination ambit of is whether Clause Origination as treating ment of Clause raising general Treasury revenue for the empty panel The found no rea- formalism. provision’s primary that See purpose. son to tread such infirm ground. on Munoz-Flores, United States v. 495 U.S. disagrees, doing dissent and in so occa- 110 S.Ct. 109 L.Ed.2d 384 sions this response. (1990); City see v. also Twin Nat’l Bank Supreme The dissent misreads Nebeker, U.S. precedent. Court’s Clause Roberts, (1897); L.Ed. 134 Millard v. approach proposed by The novel the dis- 429, 436-37, 50 L.Ed. exempting levy bills that taxes from sent— opinion rests on desig- they Clause where purposive reading adopted applied by par- nate the for exclusive a funds use in these three government program ticular also —is cases. flawed for a number other reasons. Textuálly, the dissent asserts that A. “unmistakably em- Munoz-Flores, Court’s braces all that are bills intended raise Origi most recent pronouncement on the revenue.” Dissent at dissent Clause, nation restated “a statute provides satisfying why no explanation particular governmental program creates a bills that revenue for ex- designated raise and that revenue to support raises penditure only specified programs —and program, opposed to a that rais statute only such bills—are outside the revenue support gener es Government nor how the text Clause’s forecloses a ally, is not Bill for with Revenue panel’s interpretation. Dissent at See meaning analysis 1057-59. The dissent’s Clause.” (internal congressional practice suffers from the 110 S.Ct. 1964 omitted). Representa- same defect. The House of quotation marks and brackets quotes language, The dissent then Munoz-Flores concerned a challenge to adds new and different test which a a law imposing “special assessment” on escape requirements any person statute could convicted of a federal misde- meanor, if it raises proceeds with the up to a thresh- “designated specific funds for use old deposited amount into a Crime Victims program,” Fund, and does not “raise revenues any surplus beyond and the thresh- paid general treasury into the and avail old deposited into general the fund. 495 general able for governmental Dis use[ ].” U.S. at 110 S.Ct. 1964. The dis- Munoz-Flores, sent at 1057. The Court in sent observes that swept “[t]he Court first however, described and general followed Nebek spillover] [the fund scenario aside holding creating er ’s that “a discrete as one rarely that would practice.” occur in governmental program providing Dissent at 1059. The Munoz-Flores sources for its financial support is not a aside, Court did sweep that scenario simply revenue bill it because creates reve though it could do only so because was 400, nue.” 495 at 110 S.Ct. 1964. engaged U.S. in an interpretation of the law’s The Court talking could have been about “primary purpose” rather than because as- the ACA. sessments paid would never go gener- into al 399, revenue. 495 U.S. at The dissent argues nonetheless that this 1964; see also Minor and Technical Crimi- court should convene en bane to announce nal 1988, Law Amendments Act of Pub.L. Munoz-Flores, holdings that in Mil- 7121, § No. 4419, 100-690 102 Stat. lard, and Nebeker are narrower than the (1988) (codified 10601(c)(1)(A) at 42 U.S.C. purposive expressly employed by test (1988)) (stating that if the Crime Victims cases, Supreme Court. Those the dissent Fund specified ceiling hits a in deposits in contends, establish a very limited ex- any given year, the depos- excess “shall be ception Clause for taxes ited in general fund of Treasury.”). designated exclusively by specific use fact, expressly Munoz-Flores acknowl- program or service. Dissent at 1057-59. edged that proceeds some of the law’s argument That faulty relies on a premise. already gone general had revenue. 495 The cases Supreme considered 399, U.S. at 110 S.Ct. 1964. The case Court involved revenue-generating meas- support cannot bright-line dissent’s ures that supported government identified test.1 programs or services that were not designated by law for exclusive use Nebeker involved three bank taxes in particular service, program any Section 41 of the National Bank Act of 99, event none of them (1864), was resolved on the ch. 13 Stat. that grounds proposed by the dissent. allegedly originated in the Senate. Nebek- Indeed, Court in might ed that the revenue be used as Munoz-Flores affirmatively rejected the that test the Ninth “Congress federal revenue” and failed to re adopted, Circuit had and that the dissent to strict the use of monies assessed ... commends, day any Senate-orig under which any way, they might so that be shifted to “gener inated bill that in fact raises funds for any another at at time.” 863 F.2d al revenue" violates the disagreed, stating 659. The (9th 1988), rev’d, See 863 F.2d 654 Cir. creating that governmental "a bill a discrete 109 L.Ed.2d 384 program providing sources for its finan Appeals The Court of for the Ninth support simply cial is not a revenue bill be Circuit had held in Munoz-Flores cause it creates revenue.” at special 495 U.S. legislative assessment made its vehicle “Congress contemplat a revenue bill because 110 S.Ct. 1964.

er, 202-03, 17 this was because the tax explained 766. The months, taxes, every required six “beyond any possible due need collected funds- percent a half tax on the pay each bank Annual Report of the Government.” its notes in circula- “average amount Comptroller Currency tion,” tax percent on the “aver- quarter Fifty-Fourth Second Session Con age deposits,” quarter and a amount of its (GPO 1896). gress, When the new “average amount of its percent tax on the System displaced national Federal Reserve the amount invested capital beyond stock and the Comptroller bank notes Id. at States bonds.” United ultimately for the life accounted 111). 13 Stat. at (quoting S.Ct. 766 tax, mil circulation he reckoned $126 Act of the National Bank principal purpose lion had collected from the circulation been currency a national based provide was “to expenses alone while the the Cur bonds,” 203, 17 upon States id. at United rency only million. 1 Bureau had been $15 provided Act the S.Ct. and the Comptroller Annual Report the the of of of the expenses Comptroller of the Office Currency to the Third Session the Six of paid Currency of the would be from the (GPO 1915). ty-Third Congress, at 55 The Act, 199-200, at taxes in the see id. 17 in today’s circulation tax raised billions case, it not the S.Ct. 766. But is as the say borrowing dollars. One could words — asserts, that “all of the funds dissent by today’s used dissent —that Bank the designated by law raised were to be used Act Lots of revenue. revenue.” “raise[d] pay printing of distribut- the costs at Dissent 1049. at ing currency.” Dissent 1058. The nonetheless in Supreme Court held The at issue in Nebeker no placed Act Nebeker that taxes did not implicate the how funds raised in of restriction on excess they the Clause because were maintaining currency those for needed the object” would The taxes in “in spent. be at issue the furtherance of [the] “to paid Nebeker were to be the treasurer currency.” “providing Act: a national Ne- “in lieu existing United States” of beker, all 167 at U.S. 766. 198-99, taxes.” 167 U.S. at 766 S.Ct. that: Court said it was conclusive 111). at (quoting 13 Stat. The statute congress purpose main had in [t]he “expenses of [curren- directed the view the National enacting [in Bank Act] cy] paid to be from the bureau” were provide currency was to a national based But, money raised. Id. than bonds, upon United States and to that requirement, placed Act the no limitation impose end was deemed wise to the any of excess funds. Id. As use tax in question. The was a means out, things great turned there was a deal effectually accomplishing great Secretary of excess. The of the Trea- object giving people currency of sury’s most recent annual at the report primarily upon that would rest the hon- time the Court Nebeker Supreme decided States, or of and be the United available $1,763 million reflected had been col- every country. in part There was year lected half of that through in the first act, purpose by or any no of its Report the tax on national banks. Annual provisions, applied to raise revenue be Secretary the Treasury on the of obligations meeting expenses State the Finances the Year at government. (GPO 1897). XIX The Secretary recom- added). (emphasis Id. cut in mended that the tax be half. Id. at had the The taxes in Nebeker effect Comptroller of XXXIII. The the Curren- revenues, cy’s contemporaneous report raising annual own substantial “great that was not the ob- to “a bill plainly for purpose, another —the law, ject” and so the which incidentally appro- carries an —of See, implicated. e.g., Clause was not 1 priation with it in give order to it effect” Woodbury Willoughby, The Westel Consti- would mean that “possibly one half or § tutional Law the United p. States three fourths of legislation of Congress (“[I]n court, [Nebeker] would be null and void.” Id. effect, bill, primary purpose held that a revenue, of which is not the Court Millard took a not a measure that must in the tack, calling different the bill a tax but House, though, incidentally, even a reve- summarily rejecting the appellant’s claim. nue will be derived the United States The Court held that whether the chal- execution.”). from its lenged bill anticipated future taxes or Millard, Similarly, matter, somehow levied taxes did not be- relating Court held that three laws to rail- “[wjhatever cause taxes are imposed are improvements expansion road but means to purposes provided by the District of did not implicate Columbia act.” 202 674. S.Ct. Origination Clause. 202 U.S. at taxes were instrumental to the accomplish- provid- One of the laws at issue statutory ment of the purpose—railroad ed, in relevant part, that the costs of mak- improvements. The thought thus ing improvements contemplat- the Act challenge easily dismissed: “In answer paid ed would be “[fjifty per centum ... [Origination Clause] contention the remaining United States and the fifty per centum ... by the District of case of [Nebeker ] need be cited.” Id. Columbia, which fifty per last-mentioned brevity Millard’s offers an important centum shall be levied upon and assessed unpacking clue in Court’s property privileges the taxable in said purposive adherence to a approach to the District other than the property of the thought Clause. The Court United States and of the District of Co- (1901). lumbia.” 31 Stat. 773-74 the issue so in clear-cut Millard that it The other two statutes provided also dismissed the case on purpose grounds “half’ of the costs of various sorts of im- ground rather than on the that the statute provements would paid “be out of the reve- (but simply did impose any at taxes Columbia,” nues of the District of 31 Stat. taxes). most desig- described future Were (1901), “by or the District of truly nation the test of the Columbia,” (1903). 32 Stat. The scope, Clause’s Millard would have been a frequently case is imposing described as “a far might more difficult case. Millard or in property the District of Colum- might designation; not have involved bia.” Dissent at statutory 1058. As the might might or not have a reviewed show, language however, appears to levying new taxes. The in Court Millard three in challenged laws Millard did not in did not dismiss the case because the bill specify levy themselves taxes. tax, under no imposed review nor because The Millard v. Roberts court of appeals any way explicitly desig- the taxes were in thought appellant charged the Senate nated, but because the taxes were “but with unconstitutionally originating ap an purposes provided by means to the propriations App.D.C. bill. 25 223-24 act.” 202 U.S. at 26 S.Ct. 674. Un- (1905), aff'd, 202 U.S. analysis, readily der that the ACA survives disposed L.Ed. 1090 It of the case ground sustaining on the a challenge challenge. Sissel’s “closely inter- key “three reforms” are

B. explained at twined.” Id. 2487. The Court to overhaul was The ACA legislation reading fair de- “[a] raise not to system, healthcare national understanding mands a fair of the legisla- re- a “shared provided It revenue. plan” legislative plan tive and Congress’s 5000A, § 26 U.S.C. sponsibility payment,” passing “improve the ACA was to health goals programmatic the law’s support by making coverage insurance markets” purchase insur- by encouraging people to more accessible at and affordable. Id. helping fund the overall ance and King 2496. reinforces Sebelius, NFIB v. program. See NFIB, holding panel’s and the Court’s (describing the mechanics case, in this that the individual conclusion solu- payment as the responsibility shared part package mandate is of a reforms na- cost-shifting problems in the tion to Congress deemed essential ACA’s market). tional health insurance purposes “expanding] coverage main part enacted that mandate The ACA the individual health insurance market” reforms national health key three “ensur[ing] anyone who wanted to (1) market. Act bars insur- insurance buy health insurance could do so.” Id. denying any person coverage ers from (a preexisting condition re- because of issue”) objects dissent shared re- “guaranteed pro- form called payment too sponsibility will raise much charging people preexisting hibits money just piece it to count as of a higher premiums than those conditions (a “community larger, rat- more whole.2 comprehensive reform without called ing”), market-expanding enacts reforms forefronts dissent the size numbers enough through involved, large pools early risk highlighting Congres- ensure one mandate” health “coverage prevent Budget sional Office estimate the bil- premiums skyrocketing, from insurance lions of dollars raise the ACA would over (3) provides and tax credits to refundable years. ten Dissent at 1052-53. It is in order individuals to make insurance what could to unclear those numbers add — Burwell, King affordable. See more v. revenue; that the claim the ACA raises 2486-87, -, 192 they gross figures, are not net of the costs centerpiece L.Ed.2d the providing coverage health insurance market-expanding the is a re- reforms health care the and for which ACA was quirement that insur- purchase individuals Any Congress enacted. time enacts an ance, part supported by the tax subsi- ambitious, that nationwide reform includes needed. A mandate dies where See id. itself, to pay a mechanism the numbers lacking pay that people insurance large. program be But size will does not government responsibility pay- a “shared revenue-raising purpose- establish a or ef- designed to encourage ment” is individuals purpose is to give fect. ACA buy coverage. to generates, it back what form of broader, effective, more and fairer emphasized As the its health general to King opinion interpret- coverage, recent v. not raise revenue for Burwell ACA, ing key provision that law’s governmental obligations. suggests applied Origination The dissent "makes little have that Clause would to sense” for to conclude tax bill. Dissent at 1054. The same criticism Origination "magically” ap- Clause does not against could have been bills at leveled ply though, the ACA even the ACAbeen to had Munoz-Flores, Millard, issue Nebeker. bills, bill, spending two a tax bill and a skillfully does not The dissent square

The dissent contend strives to responsi- or its shared purpose ACA its view of the Clause with the bility payment was to raise revenue. Id. Supreme precedents. Court’s po- Its basic points The dissent nonetheless out that sition “any provision” is that of a law that there are taxes the ACA other than the general raises revenue for governmental responsibility payment. shared Id. But purposes comes within the payment the shared responsibility Clause. Id. at 1060 n. quickly 5. It ac- alleged was as the basis for the knowledges that rule is too broad. Acts to event, any claim in this case.3 In lands, bills, public sell trade and laws that examples Senate-originated the dissent’s fix price stamps, among many oth- implicate laws that should ers, always have fallen outside the Clause. Clause all involve Senate bills with So have types actually several of laws that provisions that pur- are unrelated to the levy align taxes. To its rule prece- poses revenue-raising of the bill or have dent, the dissent an exception defines 1053-54, purpose. the Senate’s sole Id. at creating rule: laws distinct mentions, 1058-59. The dissent for exam- governmental programs fall outside the ple, might attempt that the Senate to at- only they if designate the mon- gas major tach a tax to a security national ey they a separate pay raise for fund to bill, at id. or raise income taxes to their costs. Id. at 1057-59. The dissent war, offset the costs of fighting id. sees that sweeps even rule still too not, opinion 1058-59. The panel does wide. The Court has held at not, opine need on how the least paid twice laws that into the might apply containing bill general Treasury fell outside the Clause. revenue-raising provisions unrelated its work, To make it objectives. the dissent locates anoth- non-revenue exception: er Laws that do not raise “sub- contend, The dissent does not nor are Treasury stantial” revenue are also any we aware of suggestion, credible subject Id. 1058-60. ACA, including its reve- provisions, nue was other than reform rules their exceptions Those do not care, market for health nation’s includ- reflect the The dissent that it law. insists ing by encouraging individuals to purchase must matter whether a Constitution by supplying health insurance and subsi- expressly designates its revenues for purchases dies to make those affordable. particular government program. use a any provision Sissel has not identified in No case has ever said it must. The the that he ACA asserts is unrelated to its “[wjhat Court has instead cautioned that overarching purpose. This is not a case in belong to that for [of bills class bills rais- originated which the Senate an omnibus ing question magni- is a of such revenue] packed provisions bill with revenue bear- importance part tude and that it is the ing apparent relationship any no other attempt, by any general wisdom not to aspect ques- of the bill. novel Whatever statement, every possible phase cover raise, they a tions such bill would are far Nebeker, subject.” case, the 167 U.S. easily afield from this which is decid- Supreme precedents. yearns just ed under the 766. The dissent for Court’s S.Ct. Palmer, Rehearing petition rehearing. King appropriate is not on an for See v. issue raised, party argued J., (D.C.Cir.1985) (Bork, that no briefed or 778 F.2d consider, panel, panel the did and that not banc). concurring rehearing in denial of en losing party’s was not even advanced in the case, way to this ready, additional decide is no But there statement. such as an alterna- in first instance or in case. either the one this need for against rely- But we decided holding. tive' that, in all of our repeating It bears it, holding large part in because ing on has not once Supreme Court history, Supreme Court’s of Munoz-Flores —the of the a law in violation found the issue—was examination of most recent has said The Court analysis. Court on a different based justiciable, are challenges alternative de- over an approach chose its lane in which stayed panel’s opinion con- passionate veloped in Justice Scalia’s judicial review. authorized has which would judgment, in the currence II. pro- that case as the dissent have decided case, saw no deciding this one. approach this See poses application than go further need 1964; n. id. at 391-92 & Our precedent. Supreme Court relevant (Sealia, J., concurring 408, 110 S.Ct. 1964 power sparing- en banc court exercises its Quite simply, Munoz- judgment). change the power of that ly; its exercise holding upon basing on Flores insisted rar- correctly cases is reasoning in decided rather than the purpose of the bill dissent, in arguing think the still. We er began, and because where the bill chamber now, Origina- seeks to revisit rehearing Origina- analysis latest the Court’s ways squarely fore- tion doctrine (if binding), instructive tion Clause is precedent unsupported closed course is to follow proper we believe the history and text. by the Constitution’s example. open are not setting that these Even aside to address ultimately decided not issues, problems with the dissent’s We we see them, we which to amend scope treatment of several Senate’s in turn. Munoz- House-originated address Bills because and the Court’s Flores A. Origina- delineating scope cases First, same the dissent would reach the path a clear provided tion Clause did on a differ- conclusion that the Court contention. proper resolution Sissel’s 3590, the It reasons that H.R. ent basis. that became the Afford- legislative vehicle B. Act, revenue-raising was able Care Dissent at originated the House. that the text dissent also contends there, get n. To it rests 1060-63 & 6. Clause forecloses Rainey propo- States for the v. United used Court has approach that, long as a amendment sition Senate century ap- and that we for more than to a bill for is “an amendment Instead, in this case. the dissent plied originated which revenue any provision “If of the law raises states: House[,][t]hat comply is sufficient” for it to pur- general governmental revenue Origination Clause. 232 U.S. with the ap- then the Clause poses, 429, 58 L.Ed. 617 explains: n. It Dissent at 1060 plies.” us, Rainey, squarely dissent tells “is has never been overruled.” point on exempt does not The text Clause at 1063. Dissent objec- other accomplish that also bills pur- predominant tives or serve other that no reason to doubt If there was raises reve- long As as the bill poses. that it could be a approach, agree we nue, requires the text of the Clause of cases” are “inconsistent with the consti- originate the bill in the House. tutional text because the laws in those money, cases did raise even though the Id. at 1055. money was designated by law specific contrary, To the Origina- text programs.” says Id. The dissent there is a supports tion Clause Court’s “straightforward” explanation for purposive approach. The text of the seemingly Nebeker, fatal incongruity: In provides Clause that: Millard, and Munoz-Flores the Court All Bills for Revenue shall origi- carved out exceptions “narrow” nate in the Representatives; House of Clause’s text may propose “compelling” but the Senate or sup- concur reasons with Amendments ported by other Bills. “history.” Id. at 1059-60. As Const, above, discussed the Supreme Court’s de- I, 7,§ art. cl. 1. The Clause’s cisions are better read as consistent critical with analysis word for this is “for.” The word “for” in Constitution’s text. this context means “with the purpose object of.” See Webster’s Third Dictionary New International C. (1981); English Language see also points dissent out that the House Johnson, Samuel A Dictionary the En- has “blue-slipp[ed]” revenue-raising bills (10th 1792) (defin- glish Language 353 ed. with regulatory purposes. Id. at 1056. ing the word meaning, among “for” as But the House has interpreted the Origi- of’). things, “with intention nation far broadly more than even The text of the Origination Clause sup- appropriate. dissent believes is ports purposive reading reflected in practice of supports the House neither the Court’s decisions. The dis- panel nor the differs dissent —its method analysis ignores sent’s textual from both. The Representatives House of applies

word “for” of a has charted its own path. That is its “Bill,” any single provision not to of it. prerogative. It does clarify little to grammatical reading of the text of the question now before us. Clause is that it reaches The House has cited the bills that have raising revenue as their in returning to the Senate bills that object. purpose or If it were meant to funds, Deschler, appropriate see 3 Lewis revenue, apply to all bills that raised Deschler’s Precedents the United States Origination Clause would read “All Bills 20.2, House Representatives §§ ch. that raise Revenue” originate shall (1994), 20.4 ban certain imports, see 138 House. The purposive reading of the (Feb. 25, 1992); Cong. Rec. Cong. aligns Clause’s text also (July 15, 1999), Rec. meaning adjust Clause’s textual H5677-80 im- the Su- preme precedents, port quotas, Court’s which have con- see Deschler’s Precedents ch. sistently primary 15.4, held that bills whose § and that reduce revenue purpose is to raise revenue must id., 15.3, exemptions, §§ granting tax see House, may while all other bills Recently, blue-slipped 18.5. the House originate anywhere. repealed Senate that would have a fee proceeds, whose like those in Munoz- contrast, if right the dissent is about Nebeker, designated Flores and were what the Clause’s about it. The dissent pay particular disposal for a nuclear waste admits that. Dissent at 1059-60. As the program deposited gen- were into the explains: might say dissent “[S]ome Treasury only they the Nebeker-Millard-Munoz-Flores line eral after fund weighty There is evidence the Clause’s of See program. the cost the exceeded (Mar. 5,1998). raising Cong. phrase Rec. H878-79 of the “for revenue” use purposive meant establish a stan- was the thus considered has House end dard. On two occasions near the of beyond the lines apply well Convention, supporters Court, in the Constitutional the by the drawn case, may proposed language The House this and the dissent. of the Clause ex- so, the to do and it retains continue well its limited reach to bills enacted pressly inter- by which to enforce its own means of purposes raising the revenue. See for result, But, as a pretation of the Clause. The Records Federal Convention of of for support practice provide its does (Max ed., Farrand 266-80 designation approach. the dissent’s 1911) (hereinafter Records). Farrand’s no Opponents expressed op- of the Clause D. narrowing, to its but focused their position Origination The dissent claims that the criticisms on absence of a Senate a made “reflects deliberate choice prohi- amendment and the Clause’s Philadelphia.” Framers at Dissent by the See, appropriations. e.g., bition on Senate It cites the of two individual at 1055. views history suggests id. at 274-80. That they “might Framers and declares as well “All Origination Bills for Clause’s speaking been the Affordable have about raising language Revenue” was meant to certainly Act.” Id. The Constitution Care purposive language put condense the for- choices, not at deliberate reflects near by proponents ward the Clause’s correctly all clear dissent has purposes close of Convention—“for the analyzed Origi- the choices in the reflected change of revenue” —but not to its mean- evidence nation Clause. historical ing. purpo- supports best Court’s interpretation. sive The Constitutional Convention’s critical “all began requirement What language compromises concerning the every money originate bills of kind shall scope of Clause occurred in Delegates not be the House of & shall weeks, closing mid-August its between eventually the Senate” evolved altered early September mid-August, As of 1787. relatively prohibition into limited initial, proponents broader version origination raising reve- Senate bills for on the Clause were de- that we have Thomas L. today. nue See August fensive. On the Committee of TEFRA Jipping, and the Randolph, which Detail —of Edmund Taking Seriously, Clause: Oath strong supporter L. REV. & n. 146 BUFF. 661-62 prominent put was a forward its member — scope proposal draft the Constitution. That focus narrowing Clause “underwent the language: draft included “All bills for ‘all concerning money

from to ‘bills bills’ raising money ... appropriating shall through revenue’ the course of Representatives, House Id. at [constitutional] convention.” and shall not be altered or amended narrowing consequential: 662. The was 6, 1787); Id. at (Aug. Senate.” see versions of the clause show “Successive Ewald, The also William Committee De- specific powers contained in its tail, 28 CONST. COMMENT. were when it original given up version surrounding (describing clear that circumstances was success of the convention draft). it.” Id. at required Committee Detail’s later, delegates of days Randolph’s Two coalition Id. amended Origination from together came strike Clause read: Constitution, and succeed- the draft of for raising money pur- [A]ll bills for the doing so a vote of 7-4. Far- ed revenue, poses of or appropriating 7, 1787); (Aug. rand’s at 210-11 Records same, shall in the House of 1787). 8, (Aug. at 214 The Clause’s id. representatives; and shall not al- be so landmine, opponents saw it as a needless Senate, tered or amended as to seriously one that could weaken the new encrease or diminish the sum' to be government by investing national too much raised, or change the mode of they in what viewed as the less objects appropriation. [its] independent, expert, respon- less and less 1787). 13, (Aug. Id. at 266 Speaking in Congress, sible of the two chambers of Clause, favor of the revised Origination generating pointless gridlock while and George explained “[b]y Mason speci- See, mortally weakening e.g., the Senate. revenue, fying purposes it obviated the 1787) (Aug. at 224 (summarizing id. objection that the Section extended to all Mercer, objections Pinkney, and Madi- money bills under might incidentally which son, the last of whom “was it striking for. 1787) (Aug. arise.” Id. at 273 (empha- considering advantage out: it as of no sis in original). Govt, large fettering States as Gerry, Elbridge probably the most ar- injurious as a source Of altercations be- supporter dent of a stronger. Origination Houses”); tween the two id. at 274-80 Clause, expressed displeasure with Ran- 1787) (Aug. (summarizing additional dolph’s narrowing and indicated it con- Wilson, Morris, objections Madison, ceded too much. In the debate over the Carrol, Rutledge, McHenry to a simi- new, Gerry narrower lar version Clause five “[A]ceeptance cautioned: plan will later). days fail, inevitably if the Senate be not re- Clause’s proponents, strained from originating Money bills.” it, an suggested effort to resuscitate cir- debate, Id. at 275. After substantial cumscribed language they hoped rejected Convention Randolph’s amended August would reinstate its core. On language by a vote of 7-4. Id. at 266 Randolph Edmund successfully moved to 13,1787). (recording Aug. votes taken have the Clause reconsidered: spoke James Madison also in that ex- [Randolph] signified that pro- he should Madison change. against was the inclu- Section, pose instead of the original sion of an Clause. He had specifying clause that the bills in ques- earlier, days said five respect tion should be for the of Reve- a prior, broader version he “was for nue, repel ye. objection in order to agst. 1787). striking it 224 (Aug. out.” Id. at the extent of the “raising words mon- ey,” might happen incidentally, which explained thought Madison that he Ran- and that Senate should not so amend dolph’s amendments to lit- the Clause did or alter as to increase or diminish the tle to it. id. at 276-77 repair (Aug. See sum; . order to obviate the inconven- 1787). Randolph’s suggested purposive urged agst. iences a restriction of the language, argued, prevent he would not simple nega- Senate to a affirmative or faction,” “contention & could create tive. disputes “difficulties and between the two 1787). 11,1787). (Aug. (Aug. Id. at 263 That houses.” Id. at 276 Even motion passed by reconsideration if limiting purposive language a vote of 9-1. were insert- thereafter, they purposive left the lan- ed, still insist that could Senate- the House actually guage were dis- originated trade bills intact. raising revenue. See id. guised for bills rejection of Following Randolph’s the language would not purposive Randolph’s 13, Strong Caleb proposal August on clashing from over prevent two Houses the language moved on 15 to introduce August subject to the Clause.

which bills were Randolph’s, except substantially similar view, purposive See In Madison’s the id. that it also authorized the Senate amend enough improve- of was not an language “for House-originated passed pur- bills at 276-77. ment. See id. 294, of at The poses revenue.” Id. 297. remarks, on leans Madison’s The dissent language revised Clause they express opposite but concludes views read: held. See at

to those Madison Dissent possess right Each shall House dissent sees in Madison’s 1055-56. The Bills originating except all Bills for rais- rejection of ringing purposive a a words ing purposes of money for the revenue Clause, just Madison, by not or for the same appropriating and but Convention. flaws in the whole Two fixing of the Officers of Gov- the salaries pertinent. that especially account are ernment which shall representatives; House of but the Sen-

First, opposed Randolph’s pur- Madison may with propose ate or concur amend- posive not because he favored a language (as ments as in other cases. implies) the dissent broader Clause opposed entirely, he because Clause postponed Id. at 294. The Convention purposive language did thought consideration of the motion amend the it. meaningfully not narrow The dissent’s by relevant Section a vote of 6-5. Id. On that thinking error Madison was is August again 21 it deferred consideration against language when fact he was of the Id. at 357-58. Amendment. against thought the lan- 31, August parts On those the draft guage persuade limited a fix to him to too postponed that had been Constitution were support it. See Dissent 1055-56 & nn. called referred to a committee the Com- 3-4. Eleven, composed mittee of of a Conven- Second, that, the dissent what- tion member from each state. See id. at overlooks 1787) 473, supporters 31, (listing ever thought, (Aug. Madison Committee Committee). Clause—those that most wanted it in the members and thought purpose- September On the Committee reported Constitution — a compromise limitation was on out a version of the Clause based agree. which all sides could The dissent almost identical to the modern Clause. It pins requirement argument important its Convention re- included the jected “all Bills purposive raising origi- Clause on Revenue” would Representatives, two Madison. nate in sentences The dissent the House entirely thought along language permitting Senate overlooks Madison would un- to amend Id. at 505 non-purposive equally (Sept. Clause be such bills. 1787). workable, 2 Farrand’s at 276-77 convention finalized Records 1787); 8, 1787), (Aug. days by slightly amending id. at 224 three (Aug. later language the Senate’s amend- governing discussion 1787). authority. (Sept. did or end ment at 552 begin with Madison’s re- Id. marks, language when its on that supporters and that re- Convention settled id., signed a vote grouped and reintroduced the Clause Con- later, 17, vention, days September stitution nine 2see Farrand’s Records at 508-10 (Sept. 1787), and the specifi- Convention cally adopted the Clause’s “for final language Clause em- Revenue” language by a vote of 9-2. Id. (“for”) ploys widely recog- a word that is 1787). (Sept. One would synonym nized as for the words “for the hardly expect such a united and amicable purposes very language of’—the the pro- outcome if scope of the Clause re- ponents of the narrowed substitute Clause mained an issue. The foregoing power- suggested. 11, (Aug. had See id. at 263 ful evidence that the Committee Eleven 1787) (Randolph’s proposed language: “All quietly did not broaden the Origination raising money bills for for the purposes of scope early Clause’s September. revenue”); 1787) (Aug. id. at 294 reading best of the history is that (Strong’s proposed language: “Bills for Convention finalized scope of the raising money for the purposes of reve- (when Clause in mid-August it debated the nue”). suggests That evidence purposive Clause’s language) delegat- Supreme purposive Court’s reading of the ed to the Committee of Eleven the more Origination Clause is the reading the question limited whether or not to include Framers intended. Warren, it in the Constitution at all. See The dissent misses that substitution of supra at 668-71. Constitution’s “for revenue” What of the dissent’s reliance on state- language money for its “for raising for the ments Elbridge Gerry and James purposes language of revenue” occurred Madison praising seemingly broader a context making stylis- clear that it was a Gerry Clause? The version change, tic not a substantive one. The championed is not in the Constitution. proposed Committee of Eleven that much Gerry criticized the Constitution for re- of the Constitution’s final text primarily jecting his vision of regarded the question before it as whether rejection and he cited that as a to include the at all. See Charles why sign reason he refused to the Consti- Warren, Making the Constitution against tution and advocated its ratifica- (1937). Ultimately, 668-71 the Committee tion. Elbridge Gerry See Letter of chose to include Clause in Vice President of the Convention of Mas- exchange investing the Senate with the (Jan. 21, 1788), reprinted sachusetts in 3 power to choose the President when a at Farrand’s Records 265. Madison ex- majority of the electors were not united tolled Clause in Federalist any candidate.4 Id. at (explaining 669 gave not because it power the House that “to conciliate those who would be taxes, because, over all opinion, in his oppose inclined to an pow- such increase of it vested the power er in the House exclusive adopted Senate” the Committee suggestion appropriations “the bills. See The Strong which Caleb had (James bills”). Madison) made as to Federalist No. at 359 slight revenue (Clinton 1961) ed., change Strong’s (explaining from Rossiter proposed Caleb wording power brooked no that the recorded comment House’s would derive from placed “power purse”). whatsoever when before its the Con- over the Neither Const, II, rejected Senate-empow- any § 4. The Convention candidate. See U.S. art. cl. ering compromise 3; half of the Committee’s (Sept. Farrand's Records placed Representatives in the House of Curtis, 1787); George Ticknor Constitu- to choose the President when (1889). History tional the United States 457 majority of the electors were not united for on the Con- Story, Commentaries Joseph in Fed- mentioned “tax” is “revenue” nor Sto- § at 343 Justice at the And stitution at 356-61. Id. eralist practical explain that “the itself, ry vo- went on to appeared Madison Convention constitution has been 2 Far- the Clause. See construction cally oppose id., 8, 1787); “the and that (Aug. opinion,” id. his against rand’s Records 1787). already origin power, (Aug. history of at 276-77 abundantly that it has proves, suggested, in- Court has Because levy taxes confined to bills been to decide us how structed words, and has not been strict sense no presents case this questions, to bills for other to extend understood in- historical comprehensive occasion for incidentally create may purposes, which look we take the modest quiry. But even revenue,” id. gloss given here demonstrates mark. wide of the the dissent is Story’s views form the basis Justice in this court and controlling precedent E. deciding the first Court. framing from the v. Nebek- City In addition to evidence Nat’l Bank appeal of Twin ratification, early constitutional histo- er, extensively from quoted court this Origination Clause’s ry that the Story’s confirms on the Con- Commentaries Justice pur- through was expected application Story’s rec- opinion noted stitution. The Tucker, writ- George test. St. pose-based views of the ognition that there were two major treátise on in in the first ing “supposes a view that Origination Clause: law, Origination that argued American or conse- indirectly every that bill which light English read in Clause should be is, may raise revenue within quentially con- sweepingly therefore practice and Constitution, a revenue the sense of the from prevent the Senate strued bill,” that “it has superior and the view even “indirect modes of through revenue levy taxes in the confined to bills been value of “debasing taxation” such as words, and has not sense of the strict Tucker, George Black- the coin.” St. extend to bills for understood to been (1803). Tucker, Commentaries 261 stone’s incidentally may purposes, which however, in acknowledge, was forced App.D.C. create revenue.” footnote, practice of the lengthy that the (1894) Story, Joseph Commen- (quoting already that Congresses had shown first 880); § see on the Constitution taries Origination thought bodies those Norton, 91 v. also United States narrow, quite was laws (citing Justice 23 L.Ed. revenue, very even “to a con- that raised Supreme Story’s approvingly). views amount,” implicate' did not siderable concluded, did then and must as we Court unless “revenue was Origination Clause here, latter view was cor- again government intended to be drawn 196, 202, 17 S.Ct. 766 rect. 167 U.S. § at 261 n. by these laws.” Id. views); Story’s see also (adopting Justice Millard, 436, 26 S.Ct. 674 202 U.S. at in Joseph Story, writing in 1833 Justice having Story’s views as (treating Justice on the Constitu- his own Commentaries in Supreme Court adopted by been tion, on Tucker’s treatment of commented Nebeker). Story’s Justice comments Clause, explaining that Origination “[a] in quoted Tucker,] Tucker have been commentator[, supposes, learned Clause, bill, opinions on indirectly conse- Court every which holding that the law revenue, is, grounds often may raise within quentially scope constitution, at does not come within a revenue bill.” issue sense of the Munoz-Flores, originate the Clause. See 495 U.S. Representatives. the House of 1964; Millard, may Revenue bills be amended the Sen- 26 S.Ct. 674. Bills,” ate “as on other they but must originate in the House. If the Affordable Early congressional practice, recognized Care Act did not requirements meet the by early two of America’s most influential Clause, then the Act—or at by constitutional scholars endorsed revenue-raising provisions least such as (Story), strongly suggests one of them the individual mandate —must be invalidat- original expected application , ed. Origination Clause was purposive. Most view, importantly, in our ap- is the view, In my the Affordable Care Act proach adopted that was and has been complied with the reaffirmed the Supreme Court. not for the reason articulated the three-

judge panel opinion. opinion reasons, For these concluded that the dissent from the Affordable Care Act rehearing denial of en presents banc no was not a revenue-raising purposes bill for basis for the en banc court to revisit the Clause and therefore did holding that Sissel’s man- challenge not have to my the House. In date section 5000A of the Affordable view, respectful that conclusion is untena- Care Act does not come scope within the ble. The Affordable Act Care established adhering new purchase subsidies for the of health precedent adopting pur- expanded insurance and pro- the Medicaid posive interpretation, panel opinion gram for low-income Americans. Those power honors the balance of between the new subsidies and expanded entitlements Congress two Houses of as envisioned cost an enormous money. amount of asSo Framers, thereby safeguarding the indi- not to the annual budget increase deficit liberty. There vidual is no basis for the debt, and the overall national the Act im- contrary. dissent’s accusation to the See posed numerous taxes to raise revenue. Dissent at 1059-60. The court has correct- Lots of revenue. billion in revenue $473 ly deny rehearing voted to en banc. years. say over 10 It is difficult to with a straight face that a bill raising billion $473 KAVANAUGH, Judge, Circuit with in revenue is not a “Bill raising for Reve- HENDERSON, Judges whom Circuit nue.” n BROWN, join, and dissenting GRIFFITH The Affordable Care Act therefore was from the denial of rehearing en banc: revenue-raising subject a bill Origi- This case raises a serious constitutional said, nation That Clause. the Act did question about the 2010 Affordable Care House, originate fact required by the as Act, consequential one of the most laws Although original the Clause. the House by Congress. ever enacted Did Con- language bill was amended and its re- gress’s comport enactment of the Act Senate, placed in the such Senate amend- Origination the Clause of the Constitution? permissible ments are under the Clause’s Origination provides: Clause “All Bills precedent. text and for Revenue shall in the in concluding So the Affordable of Representatives; House but the Senate complied Care Act with the may propose or concur with Amendments Const, Clause, panel opinion right the reached the § as on other Bills.” art. line, I cl. 1. The Clause therefore re- bottom but relied on what see as a quires that for a “raising faulty bills Revenue” rationale. Does such case still (then now) no, hypothetical as such a review? Oftentimes

warrant en banc panel sets a yes. opinion subject but here would be impor- too precedent is responded: constitutional O’Connor Justice Al- linger and metastasize. tant to let “Well, position.” pretty a extreme that’s today viewed some though no doubt True then. true now. And the annoyance, anachronistic trivial or an integral part was Origination Clause I the blueprint protecting the Framers’ House of Repre- On the October federal taxation. It from excessive people H.R. passed sentatives Service grant the Framers’ decision to true that Ownership Tax Members Act of Home power a broad amendment Senate bill, things, among 2009. That modi- than gave less bite homebuyer tax fied first-time credit have But might had. otherwise members, for service increased some cor- important has been nonetheless rates, in- porate prepayment vital mod- historically and remains failing penalty creased the tax to file By exempt- legislative process. newly ern certain tax returns. After corporate pass- ing legislation swath of tax a substantial House, ing H.R. 3590 was sent to panel from the There, Majority opinion degrades origination House’s Senate. Senate Lead- way contrary authority in a to the Consti- Harry er an “Amendment in Reid offered history, contrary to tution’s text and the nature to H.R. substitute” result, As congressional practice. all of the language amendment struck opinion upsets longstanding bal- introductory after “enacting bill’s ance of between House and the place clause” in its and inserted Sen- regarding legis- the initiation of tax Senate ate’s of what became the version Afforda- Therefore, grant I would rehearing lation. introducing ble Care Act. Instead a new view, my respectful en banc. the en bill, proceeded Reid Senate Senator via the panel opinion banc should vacate By proceed- amendment a House bill. rule for the Government on the manner, recognized in that ing the Senate ground origi- that the Affordable Care Act Origination Consti- and thereby complied in the House nated requires revenue-raising tution bills with the originate in the House. The Senate in argument At the Supreme oral 24, passed amended bill on December Court’s most recent Clause 2009, in turn passed and the House years ago, United Mu- case some States v. change amended further bill without noz-Flores, 385, 1964, 495 U.S. March President Obama 2010. then (1990), 109 L.Ed.2d 384 Justice O’Connor it signed on March into law posed hypothetical high- about national Sissel that the Affordable argues Care way funding tax- increased income raising Act is a bill Revenue” “for that had es paid treasury to be into “for originate House under the Origi- is, to purpose” “support —that nation Clause of the Constitution. He fur- building.” hypothetical That almost road origi- ther that the law did not contends precisely tracks the Clause is- correct nate the House. Sissel is about in this case. The hypothetical sue we face point wrong the first but about second. Munoz-Flores, presented was not The Act was a bill Affordable Care for Justice O’Connor asked about it to test the raising originated revenue. But theory. The limits of the Government’s attorney dutifully claimed House. Government appears bodies, however, in Arti- With two also came the I, 7, Clause 1 of the

cle Section Constitu- allocating delicate task of legislative pow- tion. It “All provides: Bills between ers the House and Senate. The originate Revenue shall the House of in. taxing power perhaps was the most criti- Representatives; may pro- but the Senate all, cal. great After one failing of the pose or concur with Amendments as on Articles of inability Confederation was the Although many other Bills.” obscure to of the national government to tax citizens today, observers the Clause im- very was priorities fund national such as the portant to the Framers and remains vital military. delegates at Philadelphia legislative to the modern process. The granted therefore Congress a broad power many Clause was one of the time, to tax. At the same the Framers finely tuned mechanisms the Framers dangers understood the inherent in the adopted separate power within the new tax, power to namely, that “the power to government, national so as to avoid the tax power involves the to destroy.” dangers power of concentrated and there- Maryland, McCulloch v. by protect liberty. individual 4 Wheat. 4 L.Ed. 579 They explain background: To At the Con- just fought had a war independence Convention, stitutional the structure and by outrage fueled at taxation rep- without powers of government the national were resentation. subject of contentious deliberations. So the delegates vigorously debated how Those deliberations great included debates power divide the to tax between the Legislative about Many Branch. House and the Senate. The Convention that a single legislative body feared would ultimately powerful, grant become too decided to the House of up swallow the other Branches, liberty. Representatives and threaten individual power the exclusive generally See bills, No. although the bills would Federalist (James Madison) (Clinton ed., Rossiter then open be to Senate amendment. As 1961). addition, the smaller states wor- explained, “prin- James Madison later representation by ried that population in cipal why reason” gave the Constitution the national legislature would overwhelm origination power exclusive to the House interests, larger their while the states was that members of the are House “cho- equal representation feared that for each People,” sen acquainted “best unfairly state would larger dilute the interests,” subject their to “more fre- easy states’ and make them finan- quent[ ]” elections. Debates and Pro- targets. cial See The Records ceedings Congress the United (Max Federal Convention at 17780 1834). ed., (Joseph States 361 Gales 1911). ed., Farrand To help address some The Clause was so central to concerns, of those the Framers reached a founding blueprint delegate the that one Compromise. Great The Convention es- Convention, the Constitutional reflecting tablished a legislature bicameral sentiment, the prevailing warned that the legislative power would divide the between “acceptance plan of the [Constitutional] bodies, thereby preventing two concentra- fail, if inevitably will the Senate be not power single tion of in a legislative assem- originating Money from restrained bills.” bly. To resolve the large state versus the, 2 The Records Federal Convention dispute, Compromise small state the Great of (statement 1787, Elbridge at 275 of Ger- provided for equal representation by state of 1787) (Max 13, ed., ry) (Aug. Farrand proportional representa- the Senate and (statement 1911); by population Elbridge tion in the House. at 5 of id. Ger- 1052 Ac- Company Public 1787) Fund v. Enterprise 14, (calling the

ry) (July Board, 667, 537 F.3d Oversight counting of the Great “corner stone” (D.C.Cir.2008) J., Likewise, dissent- during (Kavanaugh, the cru- Compromise). 714 York, (“the Mad- powers protects debates New of separation cial ratification ing) ’ importance officeholders, ison stressed and the simply the office authority. See origination House’s rights”). also individual Madison). (James 58 Federalist No. Moreover, has said of “the Court what oth- origination power, like House’s is among branches powers allocation of constitutionally estab- aspects of er allocations within no less true of such powers, was “not sim- separation of lished States v. Branch.” United Legislative in the minds generalization an abstract ply Munoz-Flores, 385, 394, 110S.Ct. 495 U.S. Framers,” expressly “woven but was 1964, “Provisions L.Ed.2d 384 they drafted the document into within the powers separation for the Im- in the summer of 1787.” Philadelphia different Branch are thus not Legislative v. Naturalization Service migration & concerning rela provisions from in kind 2764, Chadha, 919, 946, 103 S.Ct. 462 U.S. branches; both sets of tions between (1983) (quoting Buckley v. 77 L.Ed.2d 395, liberty.” safeguard Id. provisions 612, Valeo, 1, 124, 96 424 U.S. 110 S.Ct. 1964. (internal (1976)) quotation L.Ed.2d 659 the constitutional structure Because omitted). marks liberty, the Ju safeguard individual helps details, Supreme structural Those a critical role in diciary long played has times, many are not sim- has stated compromises the structural preserving etiquette or architecture. ply matters constitutional embedded choices liberty— help protect individual They also ex Court has often text. instance, by ensuring in this that, plaintiff has in cases where plained people closest to the representatives those to re standing, possess power the “courts money legislation to wrest can initiate action legislative either or executive view En- generally Free people. from the See textual.lim transgresses identifiable Company Ac- Fund v. Public terprise 224, States, 506 Nixon v. United its.” Board, 561 U.S. counting Oversight (1993); 122 L.Ed.2d 113 S.Ct. (2010) 3138, 177 L.Ed.2d 706 130 S.Ct. McCormack, v. 395 U.S. Powell (the that, long recognized “Framers (1969); 1944, L.Ed.2d 491 Mar- term, against abuse protections structural Madison, 137, 176, 1 Cranch bury v. 5 U.S. liber- preserving critical to were (1803) (“The powers L.Ed. 60 (internal omitted); marks ty”) quotation limited,” defined, and legislature are York, City New Clinton v. mistaken, may not be or for “those limits 2091, 141 L.Ed.2d 393 with those gotten.”). Consistent J., (“Liberty al- (Kennedy, concurring) held Court has principles, or more of the ways at stake when one authority Judiciary possesses transgress separation branches seek and rem responsibility to address Metropolitan Washington powers.”); Origination edy violations of the Authority Citizens Airports v. Munoz-Flores, 387, 110 495 U.S. at See Noise, Inc., 501 Abatement of Aircraft stated Mu 1964. As the Court S.Ct. 252, 272, L.Ed.2d system ca “Surely judicial (“The noz-Flores: (1991) of this ultimate determining punishment is pable'of when powers protect is to lib- separation ‘[ejxces- unusual,’ when bail is Free ‘cruel and erty security governed.”); and ‘unreasonable,’ sive,’ (“The when searches are America’s Bitter Pill 164 congressional and when action is ‘neces- main concern at the White House was sary proper’ executing an enumer- revenue.”). capable making ated the more The Act contains a wide variety of reve- adjudica- prosaic judgments demanded nue-raising provisions ranging from the challenges.” tion of Id. penalty on individuals who do not have 396,110 S.Ct. 1964.1 (commonly insurance known as the individ- duty It is therefore our here to assess mandate), ual penalty the tax on em- complied

whether the Affordable Care Act ployers insurance, provide who do not n with the Clause. taxes, payroll additional to new taxes on “Cadillac” plans, pharmaceutical health II manufacturers, medical companies, device is, among The Affordable Care Act insurers, health surgery. and cosmetic things, Congres- massive tax bill. The Pub.L. §§ See No. Budget sional Office forecasted that 9015, 9001, 9008, 9009, 9010, 9017,124 Stat. Act raise would billion revenue $473 The Act refers to the Internal years. over 10 from Douglas See Letter Revenue about Code 200 times. It also Elmendorf, Director, Congressional W. uses the word “tax” about 200 times. It Office, Pelosi, Budget Nancy Speaker of dedicates an entire title to “Revenue Pro- the United of Representa- States House visions.” See id. tit. IX. And the Con- (March 20, 2010), tives in Congressional gressional Budget repeatedly Office scored Office, Budget Selected CBO Publications the Act’s effects on revenue enhancement Legislation, Related to Health Care 2009- and deficit reduction. See Selected CBO (2010).2 2010, at 21-22 Those new reve- Publications Legis- Related to Health Care indispensable nues were to the law be- lation, 2009-2010. proponents cause did not want law’s may determining There be close calls in new health insurance subsidies and ex- whether a bill purposes raises revenue for panded Medicaid entitlements to substan- view, my tially increase the annual budget deficit this case is not a close call. Under the add Nation’s overall debt. The text, history, precedent Origina- largely new revenues would offset tion a bill such as the Affordable significant expenditures Act’s new on the Act that Care raises substantial revenue sheet, overall federal balance or at least that is governmental pur- used hope. that was the provi- revenue poses easily qualifies as a “for raising sions were essential to counter fears and Revenue.” As the accusations that the new law bust Court has would Brill, budget. generally explained, applies See Steven sure, Act, potentially challenging 1. To be Care reme- H.R. not for that Act in com- severability question dial or arises if a law is bination with the Health Care and Education found to violate the Clause: Reconciliation Act of H.R. 4872. The Should a court invalidate the whole law or passed shortly Act Reconciliation was after only revenue-raising provisions strike those the Affordable Care Act and made certain originated in the Senate? We need not together, corrections to it. Considered question address that in this case because the projected $525 two bills were to raise billion House, explained Act did years. in revenue over 10 See Selected CBO below. Legisla- Publications Related to Health Care tion, 2009-2010, at 21. represents 2. That revenue number the CBO's projection revenue -for the Affordable 1054 discourage support designed that the bill is to ex that raises revenue a “statute public v. driving, encourage States the use of generally.” United cessive

Government 398, 110 Munoz-Flores, transportation, help S.Ct. the environment. and de That exempt Origi 109 L.Ed.2d 384 Does that render it from the readily Otherwise, the Affordable covers Of not. scription nation Clause? course Origination Act. escape Care most taxes would the all, every tax virtually After has Clause. argues Government nevertheless purposes raising revenue the dual (and agreed) panel opinion surprisingly the borrow influencing behavior. To the not a reve- Affordable Care Act is “[EJvery words of the tax Court: subject nue-raising Origination bill regulatory.” is some measure National strongly I dis- respectfully Clause. v. Independent Federation Business Se agree. — belius, U.S. -, with, points begin the Government To (2012) (quoting Sonzinsky L.Ed.2d 450 pur- Act has out that Affordable Care States, v. United than That is revenue. poses (internal (1937)) 554, 81 L.Ed. legisla- true. That true of most of course is omitted); marks quotation see also id. at But that is also irrelevant under tion. (“taxes to influence conduct seek precedent or Origination Clause. No case new”). a nothing are is because That a I am has said that law of which aware an “interposes impediment economic general govern- that raises revenues for activity compared taxed with others not exempt Origination mental use is from the (internal quotation Id. at taxed.” other, merely has because the law omitted). the law marks It is neither nor Imagine weightier purposes. non-revenue practice exempt regulatory taxes simple gas a tax bill introduced from the Suppose Senate. that the bill is combined consider Suppose And this. Afford- major security a bill also national Act had into two split able Care been bills. in the that ren- introduced Senate. Does subsidies, entitlements, bill had all One exempt der the combined Senate from regulatory prohibitions. and new oth- the nation- Clause because had all the er bill new taxes revenue- security purposes al Of predominate? raising provisions. Even the Government' otherwise, If it course not. were the Sen- opinion presumably and the would Origina- systematically ate could evade the concede that Clause ap- by tacking Senate-originated tion Clause to the latter plies bill. But when two Senate-origi- provisions revenue onto other bill, are bills combined into one re- nated bills. But that neither the nor law quirements Clause mag- congressional practice. ically disappear, they say. That makes Likewise, no case which precedent or of. sense, little at least to me. regulatory I am aware has that a said matter, moreover, a practical As while is, way a tax tax—that that seeks some identify can courts sometimes various exempt influence from the conduct—is law, purposes extremely of a it is difficult merely because such identify predominant for a Court to one encouraging tax also has realistically purpose. Courts cannot discouraging certain It does not de- behavior. predominant purpose reg- termine the regulatory purpose matter whether tax, legisla- predominate. Imagine ulatory large piece or of a might be said to gas tax tion with provisions multiple the same bill introduced numerous say Indeed, Suppose sponsors objectives. Senate. its against trying argument. cautioned to divine a theory has Government’s suf- flaws, legislature’s “primary” purpose. fers from more fundamental namely that it contradicts legislative purpose “search for is often elu- Clause’s text, requirement history, precedent. a enough, sive without primacy be ascertained.” McGinnis v. Consider the text. The text Orig- 1055, Royster, 410 U.S. ination unmistakably Clause embraces all (citation omitted). 35 L.Ed.2d 282 bills that are intended to raise revenue. further, Complicating still the task each The says applies Clause that it to “All Bills legislator “primary” could have different raising for Revenue.” Period. The text of purpose for a revenue bill. passing And exempt the Clause does not bills also judicial inquiries into those purposes accomplish objectives or serve other peruse “would allow courts to legislative predominant purposes. As long as the bill proceedings emphases for support- subtle revenue, raises the text of the Clause re- ing subjective impressions prefer- quires that the bill in the House. 1055; ences.” Id. at see also moreover, Importantly, that text reflects Radin, Statutory Interpretation, Max 43 a by deliberate choice made the Framers (1930) (“The Harv. L.Rev. chances Philadelphia. at During the Constitutional that of several hundred men each will have Convention, Virginia delegate Edmund exactly the same determinate situations in Randolph proposed protections small.”); ... infinitesimally mind are cf. the Origination apply only to bills Root, Inc., Kellogg In re Brown & solely that were for revenue. He (D.C.Cir.2014) F.3d (“[Tjrying to suggested particular the Clause primary purpose find the one for a commu- apply only raising money to “Bills for for nication motivated two sometimes over- purpose revenue.” 2 The Records lapping ... purposes inherently can be an the Federal Convention task.”). impossible 1787) (Max 1911). ed., (Aug. Farrand panel concurrence the denial of objected James Madison Randolph’s rehearing confidently says: en banc “The acts,” many formulation. “In Madison purpose of the ACA was overhaul the said, presciently object “the would be two- system, national healthcare not to raise (statement fold.” Id. at 276 of James revenue.” Panel But Concurrence Madison) 1787). (Aug. Although the Act was to overhaul the them,” “raising of revenue would be one of system national healthcare and to raise how “could it be determined which was the revenue. You couldn’t do the former with- primary predominant (Aug. one”? Id. doing out also the latter. 1787). might Madison as well have put But aside the basic theoretical and speaking been about the Affordable Care practical problems with the Act.3 Government’s supporter Origina- proposed

3. Madison was anot ed out several flaws in various ver- Clause, panel tion as the concurrence notes. including problem sions of the part propor- But that is in because he wanted identify trying primary purpose legisla- representation tional in the Senate. The agreed tion. The Convention with him on Compromise proportional Great eliminated point. Contrary suggestion to the in the Senate, representation Origi- concurrence, prescient Madison’s being recompense nation Clause some to the objection “purpose of reve- successful large agreeing Compromise. States language nue” be deemed irrelevant cannot Madison saw the Clause as weak simply he also concerns because had other compensation losing proportional repre- about the Clause. point- sentation the Senate. Madison also known as practice House does so Randolph’s opposing In his statement impor- bill. Most experi “blue-slipping” a Senate cited historical Madison approach, case, regular- tensions “first the House has tantly that when for this He noted ence. Britain, authority “their ly with Great its opened” asserted Their admitted. trade was regulate that have Senate-originated bills against rejected.” Id. revenue to raise regula- revenue-raising the “twofold” 1787). impossible 13, proved Yet it (Aug. For by Madison. tory purposes identified be powers the two between distinguish Clause, asserting Origination example, in revenue raised regulations trade cause con- declined to frequently has the House purposes. As serving other addition to bills that would Senate-originated sider accurate inves “An Madison summarized: or en- regulatory taxes and deter impose proved subject afterward tigation activities. See 3 Lewis courage certain between the could be drawn no line Deschler, Precedents Deschler’s of 13, 1787). (Aug. cases.” Id. two Representatives House United States of “for Randolph’s view about Madison’s (1977) (bill using penal- § tax 15.5 ch. language pre- of revenue” the purpose (bill § id. 15.3 overfishing); to deter ties Ran- vailed, defeated and the Convention Olym- support the using exemptions 4. id. by a vote of 7 to See proposal dolph’s (bill Games); amending § id. 15.7 pic 1787).4 ensuing Over the (Aug. at 280 Act); H.R. Firearms see also National in further weeks, delegates engaged (1999) (bill that relates to a Cong. 106th Clause, about the but the and forth back tax). gun language nev- of revenue” purpose “for the history Congressional practice is That it into the final version er made because, Supreme as the relevant here “[l]ong settled and explained, has Court ' says that concurrence panel is a consideration practice established rejection of the words Convention’s formal powers weight” separation great largely of revenue” was purpose “for the v. Labor Relations Board cases. National stylistic change. meaningless, a mere — -, Canning, Noel view, the final ver- concurrence’s panel (quot- 189 L.Ed.2d applies only to bills of the Clause sion still Case, ing The Pocket Veto purpose “for the revenue (1929)) 73 L.Ed. 894 revenue,” de- though even Convention (alteration original). “for the reve- leted the words may beyond go that the House nue.” See Panel Concurrence It is true thought and, otherwise. 2425. James Madison a matter of language of that He believed that deletion rules, require -even non- own internal its go I substantively. will mattered originate in the House. revenue bills to one. Madison on this James happening what was But that’s not examples. In those histor- those historical drafting with the text Consistent (and others), many examples ical history its cited and relied on expressly House long has assert- Representatives House of Origina- interpretation of longstanding prerogative. ed its now contends says delegates the concurrence words that concurrence 4. "expressed opposition” incorporated no the final Convention sub silentio into to the were "narrowing” by Randolph. proposed the vote was of the Clause. And version That is incorrect. Panel Concurrence favor. 4 in Madison's objected precise Madison’s statement prece tion Clause. Under nation Clause all laws that have additional dent, Congress’s longstanding constitution or predominant purposes other than rais- practice al does not interpretation ing revenue. Those exempt cases did not us, interpretation. bind but it informs our regulatory taxes from — U.S. -, Zivotofsky Kerry, v. See Clause. The Court has been 2076, 2091-92, (2015); 192 L.Ed.2d 83 very careful to exclude from the Origina- Canning, Noel 134 S.Ct. at 2559. tion Clause those bills that have “no straight- purpose by All of the above seems the act or any provi- of its rather forward and a matter of common sense in sions to raise applied revenue to be demonstrating Clause meeting expenses obligations applies revenue-raising such as the bills Nebeker, Government.” 167 U.S. at Indeed, Affordable Care Act. back in added) (tax 17 (emphasis S.Ct. 766 itself Senate understood that the Act pay banks used to for the printing of cur- revenue-raising awas bill and that rency purpose” has “no to general raise applied Clause therefore to the revenue); Roberts, see also Millard v. why Majority Act. That is one reason 429, 436-37, U.S. 50 L.Ed. Leader Reid introduced the Affordable (property tax used to construct an Care Act as amendment to a House railroad infrastructure has purpose” “no to revenue bill rather than as a stand-alone revenue) (internal general raise quotation Senate bill. omitted); Munoz-Flores, marks 495 U.S. pan- So how do the Government and the at 110 S.Ct. 1964 (special assess- opinion el reach contrary conclusion? ment on convicted criminals to fund the answer, view, my in respectful is that Crime Fund purpose” Victims has “no they incorrectly Supreme read the Court revenue) (internal general raise quotation precedents on the Clause. omitted). marks Those cases have carved out a narrow Supreme What has the Court in meant exception to the Origination Clause for carving out exception this or limitation? relatively statutory certain unusual reveal, As the Court’s cases the critical panel opinion schemes. The blows Supreme distinction in' drawn exception up giant narrow into a new ex- (i) its Clause cases is between emption from the even paid laws that raise revenues into the gen- obviously revenue-raising bills such as treasury eral general available for Act, the Affordable Care which raises $473 (ii) governmental uses and laws that raise in billion revenue. designated specific revenues for use in a Supreme Court has stated program. Laws in the category— former are levy “revenue bills those that taxes encompasses majority which the vast sense of the word.” City Twin strict money subject laws that raise —are Nebeker, Bank v. U.S. Origination Clause. Laws in the latter (1897); S.Ct. L.Ed. 134 Munoz- category subject are not to the Origination Flores, 495 U.S. at 110 S.Ct. 1964. The Affordable Act Care levies numerous Indeed, Court said this sure, such taxes. To be Munoz-Flores, explicitly its most recent pur- Court has stated that “bills for other quot- Clause case. The Court poses may incidentally which create reve- purposes may ed the “bills for other which nue” are “Bills for Revenue” meaning incidentally language within the create revenue” from of the Clause. Id. But those cases not exempt Origi- did from the Nebeker. Then the Munoz-Flores Court ” “ of a contract’ between ‘practically that has inter- “The Court

immediately stated: compa- railroad a and the to mean that the Government general rule this preted “but govern- nies, the revenues were particular a in which that creates statute revenue purposes provided raises program means mental a opposed Millard, at program, act.” 202 U.S. support support Gov- revenue that raises statute for rais- ‘Bil[l] is not generally, ernment Munoz-Flores, re- the Court Finally, meaning within ing Revenue’ again Millard and lied on Nebeker and Munoz-Flores, 495 Origination Clause.” conclusion. The Court reached a similar 397-98, 110 1964. Munoz- that a bill that fined convicted concluded inter- exactly how to thus tells us

Flores funds to and redistributed those criminals lan- purposes” “other the Nebeker pret purpose” “no Fund had Crime Victims Munoz- what it means. Id. guage and gen- revenues to be used for raise understood Nebek- unambiguously Flores Munoz- governmental purposes. eral purposes for “bills for other exception ’ser Flores, 110 S.Ct. 1964 incidentally create revenue” to may which omitted). (internal quotation marks carefully circumscribed set of apply to Munoz-Flores, the es- For the Court cases. Millard,” “in point, as Nebeker sential Origina- older A review of the Court’s at raised mon- provision issue was further illustrates the cases tion Clause program to ey only part particular “as Nebeker, example, the law In for point. at money program.” Id. provide for tax tax on banks. But the was imposed a added). To (emphases S.Ct. general to raise revenue for imposed reiterate, sum- the Munoz-Flores Court rather, the law purposes; governmental Origination critical marized the expenses tax “to meet imposed the follows: A “statute that cre- principle as the execution of the act”—that attending program particular governmental ates is, printing fund the and distribution to support to and that raises revenue currency. treasury-backed first America’s that rais- opposed as to statute program, Nebeker, at 167 U.S. gener- support to Government es revenue that the law Supreme Court concluded raising Revenue’ ally, not a ‘Bil[l] scope fell outside the therefore Origination meaning within statute, Clause. The Origination 1964. In Id. at Clause.” purpose” had “no raise explained, Court Munoz-Flores, words, under in the ex- applied meeting “to be funds apply to “a statute Origination Clause does obligations or of the Government.” penses support Government that raises revenue Nebeker, 17 S.Ct. 766. generally.” Id. Rather, desig- all the funds raised were pay law to be used to the costs nated The Nebeker-Millard-Munoz-Flores currency. distributing printing question applies only if the law principle be used for a designates that the revenues Millard, a tax the Court considered the fact program. Importantly, specific in the District of Columbia. property paid to be into that a law raises revenue solely law designated The tax was offset the treasury help generally improvements fund railroad infrastructure on the program costs of a new overall The Court in the District of Columbia. has never been held federal balance sheet tax was not imposing that the law held law from the exempt subject to the Clause. Otherwise, example, a to take one arrangement was Clause. found that imposed rarely massive income increase for would occur in practice. See Mu- noz-Flores, offsetting the avowed the costs Qaeda against

of new wartime efforts al that, 1964. And the Court any said from the exempt Origi- and ISIS would be event, any such leftover amount would not panel opinion, nation Under the be “substantial” and thus was not an Origi- subject such a tax law would not be nation Clause concern: panel opin- Clause. What the Millard, then, As Nebeker and ion is that many misses laws that create special provision assessment passed was revenues, government programs also raise part of a particular program to pro- especially given congressional strict “pay- money vide that program —the go” subject rales. But those laws remain Although Crime Victims Fund. any ex- Clause. As noted go cess was to to the Treasury, there is above, precise hypothetical that was the no evidence that Congress contemplated Justice O’Connor raised in Munoz-Flores. possibility excess, of a substantial accurately She called the Government’s nor did such an excess in fact material- contention that Any ize. revenue for general Trea- apply “pretty would not such a situation § sury that 3013 creates is thus “inci- extreme.” to that provision’s primary denta[l]” One scholar has summarized the Court’s (cid:127) purpose. way: ease law this If “a statute funds the Id. at 110 S.Ct. 1964. Munoz-Flores treasury specific instead of a pro- therefore reinforced that the Origination service, gram primary purpose or it has a Clause does apply to a bill that raises Alternatively, revenue. if the “paid “substantial” revenue to be into the specific activity statute funds a seg- Treasury.” General Id. ment, it falls outside the scope of the exception The narrow in identified Ne- Kysar, Clause.” Rebecca M. The ‘Shell beker, Millard, and Munoz-Flores does Origina- Bill’ Game: Avoidance and the encompass the Affordable Care Act. Clause, tion 91 Wash. U.L.Rev. imposes The Affordable Care Act a vast (2014). law, Origination The Clause case array of significant taxes and raises therefore, “fails to support judicial inquiry amounts of paid revenue that are into the Congress’s into in purpose enacting a stat- general treasury general and available for Rather, ute. the Court as a proxy takes governmental uses. The amount of reve- that non-revenue-raising such is nue the Act raises is bil- $473 enormous— when the structure of the statute earmarks years. lion over 10 The Affordable Care revenues to fund a program it creates.” Act designate does not its tax revenues to Id. at 676. in particular programs. be used Un- said, That Munoz-Flores had one wrin- der the relevant Supreme prece- important kle that is to understand. The dent, therefore, as well as the text and statutory scheme in provid- Munoz-Flores Clause, history of the the Affordable Care any ed that contributions to the Crime revenue-raising subject Act is a in Victims Fund excess of million a $100 Origination Clause. year would general be transferred to the sure, (and To might say be some that treasury thus available for governmental Nebeker-Millard-Munoz-Flores line of purposes), than rather redis- tributed to cases is itself inconsistent with the consti- crime victims. The Court re- in sponded ways. two tutional text because the laws in Court first those swept that money, scenario aside as one that though cases did raise even Act is not that the Affordable Care eluding specific for by law designated

money was Origina- revenue-raising bill under those a explanation programs. Here, wrong panel opinion tion Clause. straightforward: cases seems law, that, if way wrong Su- point, constitutional that areas of other out a followed, Rep- time has carved House of degrade over preme Court would on) (or limitation exception prerogative narrow constitutional resentative’s The Court of- rule. general constitutional en revenue-raising bills. Sissel’s originate adjudication, that in constitutional panel’s ten does says it well: “The petition banc compelling gov- there is when Origi- sometimes guts the approach’ alfbut ‘purposive so, doing sometimes interest ernmental enabling the by effectively nation Clause 'so, and some- doing history supports when might originate tax bills Senate minimal, to exception is times when Peti- purpose.” social have some broader See, e.g., examples. take three common light En Banc at 2. In Rehearing tion —Bar, v. Florida Williams-Yulee con- of this issue to our importance L.Ed.2d 570 -, and to the individual structure stitutional structure, I liberty protected by to vacate opin- grant rehearing en banc flaw the would The fundamental consequen- that heretofore panel opinion’s it transforms flawed ion is Origina- exception holding.5 and rare narrow tial Clause exemption. new tion into broad by the exemption created

The broad new Ill bills im- presumably covers panel opinion Act is a Although the Affordable Care many taxes and posing regulatory revenue and therefore was law for significant revenue —com- bills that raise Act subject to the play- all of the relevant monplace bills that House, as re- in fact did sub- understood to be previously ers have reason, I For that by that Clause. quired all, if Clause. After ject reject Sissel’s would exemption applies new panel opinion’s claim. $Jp73 that raises billion in reve- to a law nue, recap: cover lots of other bills On October surely will To thought been called previously originally would have H.R. passed House Ownership come within the Members Home the Service amended Act of 2009. The Senate then Tax using the narrow Munoz- simply, Put bill, substituting the text of what be- exempt billion exception Flores $473 for the text the Affordable Care Act came Origination Affordable Care Act from passed in the House. that had been missing example a textbook of Clause is forest for the trees. amend- contends that the Senate’s Sissel Act substituting the Affordable Care ment and up To sum so far: The Government Home Members astray in con- for the text of Service opinion gone have (known above, as the individu- Origination do not have insurance explained Clause 5. As mandate) any inquiry on the entire law. If raise mas- focuses al alone was forecast to gener- revenue, provision revenue for of the law raises approximately $4 of sive amounts purposes, Origina- governmental then the al year by National Federation 2017. billion applies. But even if the relevant tion Clause Business, at 2594. Independent inquiry only on a Clause focused Therefore, mandate itself is the individual law, provision rather than on particular revenue-raising provision. whole, the tax on who the law as a individuals Tax Act “was not a lawful Ownership language permitting The Senate amend- required by ‘amendment’ of H.R. 3590 as critical, ment of revenue bills was more- over, Clause” because it was not to the Constitutional Convention. In “ ‘germane subject matter of the early English practice, revenue bills had'to ” Appellant’s (quoting bill.’ Br. 21 [House] originate in Commons, the House of and Co., Tracy Flint v. Stone the House of Lords could not amend those (1911)). 55 L.Ed. 389 contrast, By revenue bills. Indepen- after dence several of the new American unavailing. Origi- claim is The Sissel’s departed English States from practice by imposes germaneness nation Clause no re- allowing upper houses their states’ on the quirement Senate when amends legislatures to amend revenue bills. The revenue-raising originated bills that Constitutional Convention followed the lat- text, apparent House. That is from the ter model and allowed Senate amendments history, precedent of the Origination to House-originated revenue bills. See 1 Clause.6 Watson, David K. The Constitution with, begin germaneness require- To United History States: Its Application urges ment that Sissel is inconsistent with (1910); and Construction 342-43 S.Rep. the text of the Clause. The No. at 3 (contrasting the permits the Senate to amendment limitations on the “strietn” “propose or concur with Amendments as House of Lords with expansive amend- Const, I, § on other Bills.” U.S. art. cl. ment “our fathers provided” to the added). (emphasis The text of Origi- Senate). nation grants Clause therefore the Senate language permitting broad Senate authority as much to amend revenue bills amendments was not an accident in- grants as it the Senate to amend other . stead was a general germaneness bills. There is no deliberate considered de- Philadelphia. cision at requirement delegates when the Senate amends oth- ini- tially It language er House bills. follows that there is no considered that would not germaneness requirement have when the Sen- allowed Senate amendment of reve- ate amends revenue bills. nue “As on other bills. The Records the Federal Bills” means “As on other Bills.” (July Convention 524-25 view, homebuy- prevailing H.R. 3590 modified the first-time origi- visions? Under the members, er tax credit for House-passed service increased nal bill must itself reve- contain taxes, pre-payment corporate nue-raising provisions amount for in order for the Senate penalty failing permissibly revenue-raising provisions and increased the tax to file add (as corporate through certain process. returns. H.R. 3590 its amendment See James 8, 2009). Saturno, Service, passed by Congressional the House on October V. Research The Joint Committee on Taxation estimated the U.S. Constitu- provisions Interpretation Enforcement, that several of H.R. 3590 would tion: at 6 (March 2011). significant raise revenue. See Joint Commit- But this case does not Taxation, tee require judicial Estimated Revenue Effects of a definitive answer to that 3590, question original H.R. the "Service Members Home because the House bill here 6, (Oct. 2009). Ownership revenue-raising provisions. Tax Act of 2009” in fact contained above, 19-20, pages practice, Congress As noted see if a bill One related note: In revenue, ap- broadly raises the apply seems to the plies, revenue-affecting even if the overall bill is deficit neutral. all to bills because of the original potential difficulty determining So it was in the H.R. 3590. But of a whether happens original what the when House- tax bill raises or reduces revenues. Id. at 4. passed any clearly bill does not contain revenue- But the House bill here was revenue- raising provisions raising, explore at all? Can the Senate so we need not issue revenue-raising pro- amend such a bill to add further.

1062 1911). 1787) (Max ed., in relation to such bills is But after resentatives Farrand them.”). simply a to debate, delegates provided for broad the power. delegate, One Senate amendment has to practice That continued historical the Gerry, later lamented that Elbridge are present day. many the There modern power broad amendment weakened Senate examples “gut replace” of so-called 3 id. at 265. Dur- the of the Clause. force See, American legislation. e.g., Taxpayer debates, ratification Wil- ing Virginia the 2012, 112-240,126 Relief Pub.L. No. Act of similarly complained that the liam Grayson (2013); Emergency Stat. Economic 2313 power a amendment constituted Senate’s 2008, Pub.L. Stabilization Act of No. 110- originate revenue bills power de facto (2008); 343, 122 3765 Tax Reform Stat. it would allow Senate to delete because 99-514, Act of Pub.L. No. 100 Stat. a House language all the of bill and substi- 2085 language. 3 entirely tute The Debates new practice That matters. See historical State Conventions on Several National Labor Relations Board v. Noel Adoption the Federal Constitution of — -, Canning, U.S. (Jonathan ed.,,1881). Elliot No doubt Ger- (2014) (historical L.Ed.2d 538 Grayson right were ry perceive “ great practice regard ‘is entitled the Senate’s broad amendment the true construction of a con- determining the force of the would weaken provision phraseology stitutional respect But must courts Constitution’s any respect which doubtful mean- gives text. the relevant text the Sen- And ”) Case, ing’ (quoting The Pocket Veto power. ate a amendment broad 463, 73 49 S.Ct. L.Ed. 894 text, with the Consistent Constitution’s (1929)). moreover, Congress’s longstanding prac- for us as importantly Most a lower permit tice been to Senate amend- has court, the relevant Court case here, exactly the kind at ments of issue germaneness require- law forecloses the essentially guts which the Senate ment Rainey advanced Sissel. v. replaces the lan- House bill and House States, United 34 S.Ct. guage language. Senate Thomas See (1914), L.Ed. Jefferson, Parliamentary A Manual of germaneness that there was no concluded Practice, For Use Senate requirement on Senate amendments to (Davis § at 107 & Force United States case, the revenue bills. In that Senate had 1820) (“Amendments may be made House-originated amended tariff a totally so as to alter the nature of the foreign-made yachts. include a new tax on proposition,” entirely new propositions 315-17, Id. at 429. The Court by way can “ingrafted be amendment stated: an “Having become enrolled and ”); S.Rep. words ‘Be enacted.’ No. duly Congress, Act of it is (When authenticated “a bill for reve- at 3 not for to determine this Court whether House, originated nue limita- has no the amendment was or was not outside the tion is placed upon the Constitution it____The purposes original bill.” Id. at power of the Senate to amend prerogative Rep- exclusive House of 429.7 imposed germaneness says may amend If rules re- that the Senate revenue bills Senate quirement need legislation, for all amendments "as on Bills"? We not confront germaneness requirement question there then here because is no such would such general germaneness imposing be Senate enforceable under rule Rainey, given notwithstanding requirement for amendments. that the Clause (2015) (Roberts, squarely point C.J., on and has Rainey dissenting); is Akhil That Amar, never been overruled. decision re- Reed America’s Constitution: A germaneness solves the issue in this case (2005). Biography 313-463 Sec- of the favor Government. ond, although the Senate’s amendment power no significantly doubt weakens the Rainey, a pre- To overcome Sissel cites potential force of origination the House’s case, Co., Rainey Tracy Flint v. Stone power, the House’s authority first-mover 342, 55 L.Ed. U.S. gives still (1911). substantial control over tax In upholding against law there legislation, explained as Madison and as challenge, an Clause not Flint history world, ed that the amendment has borne In enacted out. the real germane subject-mat Senate “was origination the House’s exclusive power beyond ter of the and not power Vermeule, generally matters. See Adrian propose.” the Senate to Id. But the Flint The Congressional Constitutional Law of any legal Court did not draw conclusions Procedure, 71 U. Chi. L.Rev. 424-25 description from that of the bill. There say To origina- that the House’s fore, may properly Flint not be read to power tion is less than it could have been impose judicially germane enforceable say is not to origination that the House’s requirement, especially ness in light of power meaningless. is Rainey’s rejection just later such a however, might respond, Some that even requirement. accepting importance short, notwithstanding the Senate’s Clause, panel opinion is-no amendment, the origi- Affordable Care Act big Representa- deal because the House of nated in the House. power protect tives has the itself from the consequences. It is true that IV may go beyond House the text of the closing,

Before a few final comments: and, Clause as matter of its understandably say allowing Some that own rulemaking powers, require even non- the Senate to exercise such a broad revenue bills to in the House—or amendment over revenue-raising I, pass else not the bills. Article Section greatly bills diminishes the force of the guarantees of the Constitution Clause and makes the that may “Each House determine the unimportant. responses There are two Proceedings.” Rules of its The House and First, judges, observation. as we may disregard Senate of course text, respect have no choice but to Origination Clause or subtract from its history, precedent requirements. But part of their own plainly grant which the Senate a broad practices, they may rules or on fur- insist power. amendment Courts do not have requirements beyond Origi- ther whát the authority redesign the constitutional nation Clause demands. might structure as we like it. To make problems But there are at least three changes, such structural there a consti relying self-help pow- House’s process tutional amendment that has —one downplaying er as a basis for the conse- major changes been utilized to make quences panel opinion. Const, original design. amends. Cf. First, suggestion is almost akin to 22, 25; generally see Ari saying Clause is a Legislature zona State v. Arizona Inde — Commission, political question Congress can sort pendent Redistricting U.S. -, judicial intrusion. But 192 L.Ed.2d 704 out without

1064 of eti- merely a matter is not otherwise structure concluded Supreme Court liberty. Mu- In States v. individual quette protects See United but Munoz-Flores. 396, noz-Flores, 385, 110 S.Ct. cases, 495 U.S. must enforce the courts justiciable (1990). There, as 1964, 109 L.Ed.2d 384 protections even structural Constitution’s noted, argued the Government the Court not. affected Branch does when the Cf. protect power House has the “that the 497, Fund, 561 U.S. Enterprise Free refusing to institutional interests its an individual (“Perhaps 130 S.Ct. 3138 if it believes pass bill advantages tying might find President 392, 110 Id. at has been violated.” separation But his own hands. rejected the Gov- The Court 1964. S.Ct. of in- depend on the views powers does not argument. political question ernment’s Presidents, nor on whether the dividual judicial policing explained that The Court approves the en- encroached-upon branch furthers Origination Clause individ- croachment.”) (citation quota- and internal people liberty by safeguarding ual omitted). tion marks taxation. See id. from excessive Third, as the judicial decisions—such separation powers 110 commonly in this es- panel opinion case— cases, just defer to the does not the Court congression- that affects tablish a baseline generally See political branches. Zivotof- rules, ultimately legis- negotiations, al — -, 135 S.Ct. Kerry, U.S. sky v. results, as those who have labored lative (2015); Marbury v. 2076, 192 L.Ed.2d 83 readily attest. So a flawed can Hill Madison, 5 U.S. Cranch will often influence the judicial decision acceptable It is not L.Ed. 60 congressional practice. give-and-take preservation to outsource courts can work around say that the House To political structure to constitutional opinion ignore is to the flawed branches. judicial reality of how a flawed decision Second, a court is getting right negotiations by which that can affect the (now in the House or important because occurs. process corrective future) just could roll over ac- But panel opinion. to the flawed quiesce be ac- acquiescence such House

wouldn’t far, you might my opinion read so To per- separation powers from a ceptable I think the world will end wonder whether Court. Not spective? fire, ice, bankruptcy in a or in or acqui- made clear that even The Court has court, viola- in an but in its own political escence branch there are more tion.8 I of course realize power still unconstitutionally diminished issues. This case important constitutional sep- of a justify judicial tolerance does not Madison redux. But Marbury is not v. Landmark powers aration of violation. important. quite the case is still York, City v. New cases such as Clinton Although panel opinion reached 141 L.Ed.2d 118 S.Ct. U.S. result, panel opin- correct bottom-line (1998), v. Enterprise and Free Fund interpretation ion’s Accounting Oversight Company Public incorrect, my respectful view. Clause is Board, longstanding (2010), panel opinion alters point. L.Ed.2d 706 illustrate between the House the constitutional balance of explain, As those cases Network, it, world will end not in pal dissent tell International Ltd. v. 8. See Wellness - -, court.”). fire, ice, Sharif, bankruptcy in a (“To princi- hear the 191 L.Ed.2d 911 Senate, ultimately affects individual

liberty. panel opin- should correct the We linger than let it

ion’s error now rather grant rehearing I would

and metastasize. banc, panel opinion, and rule

en vacate ground the Government on the Act originated

Affordable Care thereby with the complied

House and

Origination Clause.

FLORIDA BANKERS ASSOCIATION Association,

and Texas Bankers

Appellants,

v. DEPARTMENT

UNITED STATES TREASURY, al., THE et

OF

Appellees.

No. 14-5036. Appeals,

United States Court of

District of Columbia Circuit.

Argued 2015. Feb. Aug.

Decided 2015.

.Rehearing En Banc Denied Nov.

Case Details

Case Name: Sissel v. United States Department of Health & Human Services

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 7, 2015

Citation: 799 F.3d 1035

Docket Number: 13-5202

Court Abbreviation: D.C. Cir.