Academic journal article Harvard Journal of Law & Public Policy

The Founders' Origination Clause and Implications for the Affordable Care Act

Academic journal article Harvard Journal of Law & Public Policy

The Founders' Origination Clause and Implications for the Affordable Care Act

Article excerpt

This Article is the first comprehensive examination of the original legal force of the Constitution's Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate's amendment power.

For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated "tax." The Article concludes that this "tax" was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA's regulatory provisions and appropriations were outside the Senate's amendment power.

INTRODUCTION

I.   THE UNLOVED CLAUSE? SURVEY OF THE
     CONSTITUTIONAL CONVENTION AND
     RATIFICATION DEBATES
     A. The Constitutional Convention
     B. The Ratification Debates
     C. Non-Conclusions
II.  FOUNDING-ERA LEGISLATIVE PRACTICE: THE
     BRITISH PARLIAMENT
     A. How Parliamentary Practice Influenced
        the Founders
     B. Parliament and the Power of the Purse
        1. The Scope of the Term "Money Bill"
        2. Hotch-Potch Bills and Tacking
        3. The Dispute Over Amendments by
           the Lords
        4. What Was An "Amendment?"
     C. Summary of British Practice
III. FOUNDING-ERA LEGISLATIVE PRACTICE:
     AMERICAN CONSTITUTIONS AND
     LEGISLATURES
     A. American Constitution-Drafting:
        Background Information
     B. How the American States Adopted New
        Rules
     C. How the American Rules Continued to
        Evolve
     D. The Scope of "Amendment" in American
        Practice
     E. Summary of American Practice
IV.  WHAT THE CONSTITUTIONAL DEBATES TELL US
     ABOUT THE REASONS FOR HOUSE ORIGINATION
     AND THEIR SIGNIFICANCE
     A. The Policies Behind House Origination
     B. Significance of the Policies Behind House
        Origination
V.   WHAT THE CONSTITUTIONAL DEBATES TELL US
     ABOUT THE SCOPE OF AN "AMENDMENT"
     A. The Policies Served By the Amendment
        Qualifier
     B. How Broad Was the Amendment
        Qualifier?
VI.  CONCLUSION: THE ORIGINATION CLAUSE AND
     SOME IMPLICATIONS FOR THE PPACA

INTRODUCTION

This Article reconstructs the original legal force of the Origination Clause. The original legal force of a document or provision in a document is how the courts would have applied it immediately following its adoption. This Article relies on Founding-Era interpretive methods to recover the original legal force. (2)

The Origination Clause is one of several conditions for valid enactment appearing in the same section of the Constitution. (3) Besides House origination of revenue bills, the conditions include passage by both the Senate and the House of Representatives, presentment to the President, and either the President's signature or a subsequent two-thirds approval, on roll call votes, by each chamber of Congress. (4) It is clear from the text that a bill not complying with these procedures is not a valid law. In considering the Origination Clause, the Supreme Court has said as much. (5)

The Origination Clause is immediately relevant because of litigation ensuing from the Supreme Court's decision to sustain as a revenue-raising "tax" (6) the financial penalty for failing to comply with the individual insurance mandate of the Patient Protection and Affordable Care Act (PPACA). (7) Several challengers to the penalty contend that the PPACA effectively arose in the Senate by reason of a substitute bill, (8) rather than in the House, thereby rendering the penalty-tax void for non-compliance with the Origination Clause. …

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