Art. I, Sec. 7

[Daniel Hoffman]

Thank you.  But what about the tax bill the Senate just passed?  Would they just say the Senate was amending a House bill?

--- On Wed, 12/15/10, Theodore Ruger <truger at law.upenn.edu> wrote:


From: Theodore Ruger <truger at law.upenn.edu>
Subject: RE: Art. I, Sec. 7
To: "Daniel Hoffman" <guayiya at bellsouth.net>, "Douglas Laycock" <dlaycock at virginia.edu>, "Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>, "Edward A Hartnett" <Edward.Hartnett at shu.edu>
Date: Wednesday, December 15, 2010, 10:12 PM






A few thoughts based on some research over a year ago on a different project about the Origination Clause –
 
First, the Sup Ct held in 1990 that Origination Clause challenges are justiciable, rejecting the government’s political question argument (though Stevens and O’Connor in dissent would have held non-justiciable).  See Munoz-Flores v. United States, 495 US 385 (1990).
 
Second, despite this potential for judicial invalidation I never found a case where a federal court of last resort ever actually declared an Act of Congress unconstitutional on this clause.  This is so due to a variety of forgiving doctrines that judges have created to avoid having to invalidate statutes on this ground.   
 
Most important of these  for the PPACA would seem to be the “primary purpose” doctrine, which holds that statutes which incidentally collect revenue as part of some larger goal are not “revenue bills” for purposes of the Origination Clause.  See Twin City Nat’l Bank v Nebecker, 167 US 196 (1897).  Various circuit courts even in recent decades have cited Nebecker to brush aside origination clause challenges even where Senate-originated statutes impose incidental taxes and fees.
 
This would seem to save the PPACA from challenge on this ground, as would the fact that (I think that) the individual mandate was a part of both the House and Senate versions of the bill from the start.
 
Best,

Ted
 
Theodore W. Ruger
Professor of Law
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
 

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Daniel Hoffman
Sent: Wednesday, December 15, 2010 9:57 PM
To: Douglas Laycock; Conlawprof at lists.ucla.edu; Edward A Hartnett
Subject: RE: Art. I, Sec. 7
 





As I understand it, the purpose of this clause was to give the more popular House the predominant share of the power of the purse (e.g., Federalist #58).  I am having difficulty grasping how the clause can accomplish that.  Even if "originate" is construed to mean that the House must pass its bill before the Senate may act, the Senate retains power to "amend" the House language by passing a completely different bill.  At that point the Houses will be on equal footing (aside from the impact of the filibuster rule).

Going first only matters if "amend" is given a strict, narrow meaning.

Any thoughts?

Daniel Hoffman

--- On Wed, 12/15/10, Edward A Hartnett <Edward.Hartnett at shu.edu> wrote:


From: Edward A Hartnett <Edward.Hartnett at shu.edu>
Subject: RE: Art. I, Sec. 7
To: "Douglas Laycock" <dlaycock at virginia.edu>, "Daniel Hoffman" <guayiya at bellsouth.net>, "Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>
Date: Wednesday, December 15, 2010, 9:14 PM

It's an amendment to a House Bill, captioned as Senate Amendment to House Amendment to Senate Amendment:

Resolved, That the bill from the House of Representatives (H.R. 4853) entitled ''An Act to amend the Internal Revenue Code of 1986 to extend the funding and expenditure authority of the Airport and Airway Trust Fund, to amend title 49, United States Code, to extend authorizations for the airport improvement program, and for other purposes.'', do pass with the following:

In lieu of the matter proposed to be inserted, insert the following:

SECTION 1. SHORT TITLE; ETC.
(a) SHORT TITLE.-This Act may be cited as the ''Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010''.

. . . 

Ed Hartnett
Seton Hall

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, December 15, 2010 8:08 PM
To: Daniel Hoffman; Conlawprof at lists.ucla.edu
Subject: Re: Art. I, Sec. 7

I have been wondering about this.  Did  the Senate originate the bill on the tax compromise? Or did it amend some pre-existing bill sent over by the House?

If the former, is the theory that they were cutting taxes and not raising taxes?  It is "all bills for raising revenue" that must originate in the House.

On Wed, 15 Dec 2010 15:32:19 -0800 (PST)
Daniel Hoffman <guayiya at bellsouth.net> wrote:
>Has the Court held that the requirement that revenue bills "originate" in the House means that they must be first introduced there, not that they must be first passed there?

Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
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