Sissel v. United States Department of Health & Human Services , 799 F.3d 1035 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
FILED: AUGUST 7, 2015
No. 13-5202
MATT SISSEL,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01263)
On Petition for Rehearing En Banc
______
Before: GARLAND, Chief Judge; HENDERSON*, ROGERS,
TATEL, BROWN*, GRIFFITH*, KAVANAUGH*, SRINIVASAN,
MILLETT, PILLARD and WILKINS, Circuit Judges
ORDER
Appellant’s petition for rehearing en banc, the response
thereto, and the briefs of amici curiae in support of appellant
were circulated to the full court, and a vote was requested.
Thereafter a majority of the judges of the court in regular, active
2
service did not vote in favor of the petition. Upon consideration
of the foregoing, it is
ORDERED that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
* Circuit Judges Henderson, Brown, Griffith, and Kavanaugh
would grant the petition.
A statement by Circuit Judges Rogers, Pillard, and Wilkins,
concurring in the denial of rehearing en banc, is attached.
A statement by Circuit Judge Kavanaugh, with whom Circuit
Judges Henderson, Brown, and Griffith join, dissenting from the
denial of rehearing en banc, is attached.
ROGERS, PILLARD, AND WILKINS, Circuit Judges,
concurring in the denial of rehearing en banc: A majority of
the court has voted to deny the petition for en banc rehearing
of this case. A dissenting statement, however, charges the
original panel opinion with undermining individual liberty by
upsetting the balance of power between the two Houses of
Congress. See Dissent 32. Our opinion does no such thing.
Our examination of the Origination Clause’s text and
history, as well as congressional practice and Supreme Court
precedent related to the Clause, persuaded us that the clearest
and narrowest ground on which to resolve Sissel’s challenge
to the payment required under section 5000A of the
Affordable Care Act, 26 U.S.C. § 5000A, was to rely on the
Supreme Court’s established purposive approach. The Court
recognized in National Federation of Independent Business
(NFIB) v. Sebelius, 132 S. Ct. 2566, 2596 (2012), that,
“[a]lthough the [section 5000A] payment will raise
considerable revenue [if people do not ‘sign up’], it is plainly
designed to expand health insurance coverage,”
acknowledging that the purpose of the Affordable Care Act
(“ACA”) and its tax penalty was to spur conduct, not to raise
revenue for the general operations of government.
Doctrinal and prudential reasons counseled against
relying on the alternative ground that the dissent proposes the
en banc court adopt. Among other things, the panel’s narrow
course avoided more categorical and less historically rooted
holdings that the dissent’s approach would require: (1) that all
bills containing tax provisions that do not designate the funds
raised for use by a specified government program implicate
the Origination Clause, and (2) that the Senate may amend
House-originated revenue bills without limit. The former is
contrary to the best reading of governing law, which does not
support application of the Origination Clause to legislation
like the ACA. The latter may be contrary to congressional
practice or, relatedly, be perceived as judicial endorsement of
2
treating the Origination Clause as empty formalism. The
panel found no reason to tread on such infirm ground. The
dissent disagrees, and in doing so occasions this response.
The dissent misreads the Supreme Court’s Origination
Clause precedent. The novel approach proposed by the
dissent—exempting bills that levy taxes from the Origination
Clause where they designate the funds for exclusive use by a
particular government program—is also flawed for a number
of other reasons. Textually, the dissent asserts that the
Origination Clause “unmistakably embraces all bills that are
intended to raise revenue.” Dissent 13. The dissent provides
no satisfying explanation why bills that raise revenue
designated for expenditure only on specified programs—and
only such bills—are outside the Clause, nor how the Clause’s
text forecloses the panel’s interpretation. See Dissent 13, 17-
20. The dissent’s analysis of congressional practice suffers
from the same defect. The House of Representatives has at
times interpreted the Clause more broadly than does the
Supreme Court, the panel, or the dissent, and it retains the
prerogative to do so. The dissent’s discussion of the history
of the Constitution’s ratification as relevant to the Origination
Clause analysis omits essential context that undercuts the
dissent’s conclusions. See Dissent 13-16, 25-28. We take up
the dissent’s principal concerns below.
I.
The panel opinion rests, as it must, on binding Supreme
Court precedent. The Supreme Court has never found an
Origination Clause violation. And, in three separate cases
spanning more than a century, it held that the variable
controlling whether a statutory provision falls within the
ambit of the Origination Clause is whether raising revenue for
3
the general Treasury is that provision’s primary purpose. See
United States v. Munoz-Flores, 495 U.S. 385, 399 (1990); see
also Twin City Nat’l Bank v. Nebeker, 167 U.S. 196, 203
(1897); Millard v. Roberts, 202 U.S. 429, 436-37 (1906). The
panel opinion rests on the purposive reading adopted and
applied by the Supreme Court in these three cases.
A.
Munoz-Flores, the Supreme Court’s most recent
pronouncement on the Origination Clause, restated that “a
statute that creates a particular governmental program and that
raises revenue to support that program, as opposed to a statute
that raises revenue to support Government generally, is not a
Bill for raising Revenue within the meaning of the
Origination Clause.” 495 U.S. at 398 (internal quotation
marks and brackets omitted). The dissent quotes that
language, but then adds a new and different test by which a
statute could escape the requirements of the Origination
Clause only if it raises funds “designated for use in a specific
program,” and does not “raise revenues paid into the general
treasury and available for general governmental use[].”
Dissent 17-20. The Court in Munoz-Flores, however,
described and followed Nebeker’s holding that “a bill creating
a discrete governmental program and providing sources for its
financial support is not a revenue bill simply because it
creates revenue.” 495 U.S. at 400. The Court could have
been talking about the ACA.
The dissent nonetheless argues that this court should
convene en banc to announce that the holdings in Munoz-
Flores, Millard, and Nebeker are narrower than the purposive
test expressly employed by the Supreme Court. Those cases,
the dissent contends, establish only a very limited exception
4
to the Origination Clause for taxes designated exclusively for
use by a specific program or service. Dissent 17-20. That
argument relies on a faulty premise. The cases considered by
the Supreme Court involved revenue-generating measures that
supported identified government programs or services but that
were not designated by law for exclusive use by the particular
program or service, and in any event none of them was
resolved on the grounds proposed by the dissent.
Munoz-Flores concerned a challenge to a law imposing a
“special assessment” on any person convicted of a federal
misdemeanor, with the proceeds up to a threshold amount
deposited into a Crime Victims Fund, and any surplus beyond
the threshold deposited into the general fund. 495 U.S. at
398-99. The dissent observes that “[t]he Court first swept
[the general fund spillover] scenario aside as one that would
rarely occur in practice.” Dissent 20-21. The Munoz-Flores
Court did sweep that scenario aside, though it could do so
only because it was engaged in an interpretation of the law’s
“primary purpose” rather than because assessments paid
would never go into general revenue. 495 U.S. at 399; see
also Minor and Technical Criminal Law Amendments Act of
1988, Pub. L. No. 100-690 § 7121, 102 Stat. 4419, 4422
(1988) (codified at 42 U.S.C. 10601(c)(1)(A) (1988)) (stating
that if the Crime Victims Fund hits a specified ceiling in
deposits in any given year, the excess “shall be deposited in
the general fund of the Treasury.”). In fact, Munoz-Flores
expressly acknowledged that some of the law’s proceeds
already had gone to general revenue. 495 U.S. at 399. The
case cannot support the dissent’s bright-line test.1
1
Indeed, the Supreme Court in Munoz-Flores affirmatively rejected
the test that the Ninth Circuit had adopted, and that the dissent
5
Nebeker involved three bank taxes in Section 41 of the
National Bank Act of 1864, ch. 106, 13 Stat. 99, 111 (1864),
that allegedly originated in the Senate. Nebeker, 167 U.S. at
202-03. The taxes, due every six months, required that each
bank pay a half percent tax on the “average amount of its
notes in circulation,” a quarter percent tax on the “average
amount of its deposits,” and a quarter percent tax on the
“average amount of its capital stock beyond the amount
invested in United States bonds.” Id. at 199 (quoting 13 Stat.
at 111). The principal purpose of the National Bank Act was
“to provide a national currency based upon United States
bonds,” id. at 203, and the Act provided that the expenses of
the Office of the Comptroller of the Currency would be paid
from the taxes in the Act, see id. at 199-200. But it is not the
case, as the dissent asserts, that “all of the funds raised were
designated by law to be used to pay the costs of printing and
distributing currency.” Dissent 18.
today commends, under which any Senate-originated bill that in
fact raises funds for “general revenue” violates the Origination
Clause. See 863 F.2d 654 (9th Cir. 1988), rev’d, 495 U.S. 385(1990). The Court of Appeals for the Ninth Circuit had held in
Munoz-Flores that the special assessment made its legislative
vehicle a revenue bill because “Congress contemplated that the
revenue might be used as general federal revenue” and “Congress
failed to restrict the use of the monies assessed . . . in any way, so
that they might be shifted to another purpose at any time.” 863
F.2d at 659. The Supreme Court disagreed, stating that “a bill
creating a discrete governmental program and providing sources for
its financial support is not a revenue bill simply because it creates
revenue.” 495 U.S. at 400.
6
The Act at issue in Nebeker placed no restriction on how
funds raised in excess of those needed for maintaining the
currency would be spent. The taxes at issue in Nebeker were
to be paid “to the treasurer of the United States” “in lieu of all
existing taxes.” 167 U.S. 198-99 (quoting 13 Stat. at 111).
The statute directed that the “expenses of the [currency]
bureau” were to be paid from the money raised. Id. But, other
than that requirement, the Act placed no limitation on the use
of any excess funds. Id. As things turned out, there was a
great deal of excess. The Secretary of the Treasury’s most
recent annual report at the time the Supreme Court decided
Nebeker reflected that $1.763 million had been collected in
the first half of that year through the tax on national banks.
Annual Report of the Secretary of the Treasury on the State of
the Finances for the Year 1896, at XIX (GPO 1897). The
Secretary recommended that the tax be cut in half. Id. at
XXXIII. The Comptroller of the Currency’s own
contemporaneous annual report explained that this was
because the tax collected funds “beyond any possible need of
the Government.” Annual Report of the Comptroller of the
Currency to the Second Session of the Fifty-Fourth Congress,
at 105 (GPO 1896). When the new Federal Reserve System
displaced national bank notes in 1914, and the Comptroller
ultimately accounted for the life of the circulation tax, he
reckoned that $126 million had been collected from the
circulation tax alone while the expenses of the Currency
Bureau had been only $15 million. 1 Annual Report of the
Comptroller of the Currency to the Third Session of the Sixty-
Third Congress, at 55 (GPO 1915). The circulation tax raised
billions in today’s dollars. One could say—borrowing words
used by today’s dissent—that the Bank Act “raise[d] revenue.
Lots of revenue.” Dissent 1.
7
The Supreme Court nonetheless held in Nebeker that the
taxes did not implicate the Origination Clause because they
were “in the furtherance of [the] object” of the Act:
“providing a national currency.” Nebeker, 167 U.S. at 202.
The Court said it was conclusive that:
[t]he main purpose that congress had in view [in
enacting the National Bank Act] was to provide a
national currency based upon United States bonds,
and to that end it was deemed wise to impose the tax
in question. The tax was a means for effectually
accomplishing the great object of giving to the people
a currency that would rest primarily upon the honor of
the United States, and be available in every part of the
country. There was no purpose by the act, or by any
of its provisions, to raise revenue to be applied in
meeting the expenses or obligations of the
government.
Id. at 203 (emphasis added). The taxes in Nebeker had the
effect of raising substantial general revenues, but that was not
the purpose—the “great object”—of the law, and so the
Origination Clause was not implicated. See, e.g., 1 Westel
Woodbury Willoughby, The Constitutional Law of the United
States § 251, p. 566 (1910) (“[I]n [Nebeker] the court, in
effect, held that a bill, the primary purpose of which is not the
raising of revenue, is not a measure that must originate in the
House, even though, incidentally, a revenue will be derived
by the United States from its execution.”).
Similarly, in Millard, the Supreme Court held that three
laws relating to railroad improvements and expansion in the
District of Columbia did not implicate the Origination Clause.
202 U.S. at 434-35. One of the laws at issue provided, in
8
relevant part, that the costs of making the improvements the
Act contemplated would be paid “[f]ifty per centum . . . by
the United States and the remaining fifty per centum . . . by
the District of Columbia, which last-mentioned fifty per
centum shall be levied and assessed upon the taxable property
and privileges in said District other than the property of the
United States and of the District of Columbia.” 31 Stat. 767,
771, 773-74 (1901). The other two statutes also provided that
“half” of the costs of various sorts of improvements would
“be paid out of the revenues of the District of Columbia,” 31
Stat. 774, 779 (1901), or “by the District of Columbia,” 32
Stat. 909, 918 (1903). The case is frequently described as
imposing “a tax on property in the District of Columbia.”
Dissent 19. As the statutory language appears to show,
however, the three laws challenged in Millard did not in
themselves specify or levy taxes.
The Millard court of appeals thought the appellant
charged the Senate with unconstitutionally originating an
appropriations bill. 25 App. D.C. 221, 223-24 (1905), aff’d,
202 U.S. 429 (1906). It disposed of the case on the ground
that sustaining a challenge to “a bill plainly for another
purpose, and which only incidentally carries an appropriation
with it in order to give it effect” would mean that “possibly
one half or three fourths of the legislation of Congress would
be null and void.” Id.The Supreme Court in Millard took a different tack,
calling the bill a tax but summarily rejecting the appellant’s
claim. The Court held that whether the challenged bill
anticipated future taxes or somehow levied taxes did not
matter, because “[w]hatever taxes are imposed are but means
to the purposes provided by the act.” 202 U.S. at 437. The
taxes were instrumental to the accomplishment of the
9
statutory purpose—railroad improvements. The Court thus
thought the challenge easily dismissed: “In answer to the
[Origination Clause] contention the case of [Nebeker] need
only be cited.” Id.Millard’s brevity offers an important clue in unpacking
the Supreme Court’s adherence to a purposive approach to the
Origination Clause. The Court thought the issue so clear-cut
in Millard that it dismissed the case on purpose grounds rather
than on the ground that the statute simply did not impose any
taxes (but at most described future taxes). Were designation
truly the test of the Origination Clause’s scope, Millard would
have been a far more difficult case. Millard might or might
not have involved designation; it might or might not have
reviewed a bill levying new taxes. The Court in Millard did
not dismiss the case because the bill under review imposed no
tax, nor because the taxes were in any way explicitly
designated, but because the taxes were “but means to the
purposes provided by the act.” 202 U.S. at 437. Under that
analysis, the ACA readily survives Sissel’s Origination
Clause challenge.
B.
The purpose of the ACA was to overhaul the national
healthcare system, not to raise revenue. It provided for a
“shared responsibility payment,” 26 U.S.C. § 5000A, to
support the law’s programmatic goals by encouraging people
to purchase insurance and by helping to fund the overall
program. See NFIB v. Sebelius, 132 S. Ct. at 2585 (describing
the mechanics of the shared responsibility payment as the
solution to cost-shifting problems in the national health
insurance market).
10
The ACA enacted that mandate as part of three key
reforms in the national health insurance market. The Act (1)
bars insurers from denying coverage to any person because of
a preexisting condition (a reform called “guaranteed issue”)
and prohibits charging people with preexisting conditions
higher premiums than those without (a reform called
“community rating”), (2) enacts market-expanding reforms to
ensure large enough risk pools through a “coverage mandate”
to prevent health insurance premiums from skyrocketing, and
(3) provides refundable tax credits to individuals in order to
make insurance more affordable. See King v. Burwell, No.
14-114, slip op. at 4-5 (U.S. June 25, 2015). The centerpiece
of the market-expanding reforms is a requirement that
individuals purchase insurance, supported in part by the tax
subsidies where needed. See id. A mandate that people
lacking insurance pay to the government a “shared
responsibility payment” is designed to encourage individuals
to buy coverage.
As the Supreme Court emphasized in its recent King v.
Burwell opinion interpreting a key provision of the ACA, that
law’s “three key reforms” are “closely intertwined.” Id. at 4.
The Court explained that “[a] fair reading of legislation
demands a fair understanding of the legislative plan” and
Congress’s legislative plan in passing the ACA was to
“improve health insurance markets” by making coverage
more accessible and affordable. Id. at 21. King reinforces the
Supreme Court’s holding in NFIB, and the panel’s conclusion
in this case, that the individual mandate is part of a package of
reforms Congress deemed essential to the ACA’s main
purposes of “expand[ing] coverage in the individual health
insurance market” and “ensur[ing] that anyone who wanted to
buy health insurance could do so.” Id. at 1, 2.
11
The dissent objects that the shared responsibility payment
will raise too much money for it to count as just a piece of a
larger, more comprehensive whole.2 The dissent forefronts
the size of the numbers involved, highlighting one early
Congressional Budget Office estimate of the billions of
dollars the ACA would raise over ten years. Dissent 1, 8-9. It
is unclear what those numbers could add to the claim that the
ACA raises revenue; they are gross figures, not net of the
costs of providing the health insurance coverage and health
care for which the ACA was enacted. Any time Congress
enacts an ambitious, nationwide reform that includes a
mechanism to pay for itself, the numbers will be large. But
program size does not establish a revenue-raising purpose or
effect. The purpose of the ACA is to give back what it
generates, in the form of broader, more effective, and fairer
health coverage, not to raise revenue for general
governmental obligations.
The dissent does not contend that the purpose of the ACA
or its shared responsibility payment was to raise revenue. Id.
The dissent nonetheless points out that there are taxes in the
ACA other than the shared responsibility payment. Id. But
only the shared responsibility payment was alleged as the
basis for the Origination Clause claim in this case.3 In any
2
The dissent suggests that it “makes little sense” for the panel to
conclude that the Origination Clause “magically” does not apply to
the ACA even though, had the ACA been two bills, a tax bill and a
spending bill, the Origination Clause would have applied to the tax
bill. Dissent 11. The same criticism could have been leveled
against the bills at issue in Munoz-Flores, Millard, and Nebeker.
3
Rehearing is not appropriate on an issue that no party raised,
briefed or argued to the panel, the panel did not consider, and that
12
event, the dissent’s examples of Senate-originated laws that
should implicate the Origination Clause all involve Senate
bills with tax provisions that are unrelated to the purposes of
the bill or have revenue-raising as the Senate’s sole purpose.
Id. at 10, 20. The dissent mentions, for example, that the
Senate might attempt to attach a gas tax to a major national
security bill, id. at 10, or raise income taxes to offset the costs
of fighting a war, id. at 20. The panel opinion does not, and
need not, opine on how the Origination Clause might apply to
a bill containing revenue-raising provisions unrelated to its
non-revenue objectives.
The dissent does not contend, nor are we aware of any
credible suggestion, that the purpose of the ACA, including
its revenue provisions, was other than to reform the nation’s
market for health care, including by encouraging individuals
to purchase health insurance and by supplying subsidies to
make those purchases affordable. Sissel has not identified
any provision in the ACA that he asserts is unrelated to its
overarching purpose. This is not a case in which the Senate
originated an omnibus bill packed with revenue provisions
bearing no apparent relationship to any other aspect of the
bill. Whatever novel questions such a bill would raise, they
are far afield from this case, which is easily decided under the
Supreme Court’s precedents.
The dissent skillfully strives to square its view of the
Origination Clause with the Supreme Court’s precedents. Its
basic position is that “any provision” of a law that raises
was not even advanced in the losing party’s petition for rehearing.
See King v. Palmer, 778 F.2d 878, 883 (D.C. Cir. 1985) (Bork, J.,
concurring in denial of rehearing en banc).
13
revenue for general governmental purposes comes within the
Origination Clause. Id. at 23 n.5. It quickly acknowledges
that rule is too broad. Acts to sell public lands, trade bills,
and laws that fix the price of stamps, among many others,
have always fallen outside the Clause. So have several types
of laws that actually levy taxes. To align its rule with
precedent, the dissent defines an exception to the general rule:
laws creating distinct governmental programs fall outside the
Clause, but only if they designate the money they raise for a
separate fund to pay their costs. Id. at 17-20. The dissent
sees that even that rule still sweeps too wide. The Supreme
Court has held at least twice that laws that paid into the
general Treasury fell outside the Clause. To make it work,
the dissent locates another exception: Laws that do not raise
“substantial” revenue for the Treasury are also not subject to
the Clause. Id. at 20-22.
Those rules and their exceptions do not reflect the law.
The dissent insists that it must matter to the Constitution
whether a bill expressly designates its revenues for use by a
particular government program. No case has ever said that it
must. The Court has instead cautioned that “[w]hat bills
belong to that class [of bills for raising revenue] is a question
of such magnitude and importance that it is the part of
wisdom not to attempt, by any general statement, to cover
every possible phase of the subject.” Nebeker, 167 U.S. at
202. The dissent yearns for just such a general statement.
But there is no need for one in this case.
It bears repeating that, in all of our history, the Supreme
Court has not once found a law in violation of the Origination
Clause. The Court has said Origination Clause challenges are
justiciable, and the panel’s opinion stayed in the lane in which
the Court has authorized judicial review.
14
II.
In deciding this case, the panel saw no need to go further
than application of the relevant Supreme Court precedent. Our
court exercises its en banc power sparingly; its exercise of
that power to change the reasoning in correctly decided cases
is rarer still. We think the dissent, in arguing for rehearing
now, seeks to revisit Origination Clause doctrine in ways
squarely foreclosed by that precedent and unsupported by the
Constitution’s history and text. Even setting aside that these
are not open issues, we see problems with the dissent’s
treatment of several of them, which we address in turn.
A.
First, the dissent would reach the same conclusion that the
Court did on a different basis. It reasons that H.R. 3590, the
legislative vehicle that became the Affordable Care Act, was a
revenue-raising bill that originated in the House. Dissent 3,
24-28 & n.6. To get there, it rests on Rainey v. United States
for the proposition that, as long as a Senate amendment is “an
amendment to a bill for raising revenue which originated in
the House[,] [t]hat is sufficient” for it to comply with the
Origination Clause. 232 U.S. 310, 317 (1914). Rainey, the
dissent tells us, “is squarely on point and has never been
overruled.” Dissent 28.
If there was no reason to doubt that approach, we agree
that it could be a ready, additional way to decide this case,
either in the first instance or as an alternative holding. But we
decided against relying on it, in large part because the holding
of Munoz-Flores—the Supreme Court’s most recent
examination of the issue—was based on a different analysis.
15
The Court chose its approach over an alternative developed in
Justice Scalia’s passionate concurrence in the judgment,
which would have decided that case as the dissent proposes to
approach this one. See 495 U.S. at 391-92 & n.4; id. at 408(Scalia, J., concurring in the judgment). Quite simply, Munoz-
Flores insisted on basing the holding upon the purpose of the
bill rather than the chamber where the bill began, and because
the Court’s latest analysis of the Origination Clause is
instructive (if not binding), we believe the proper course is to
follow that example.
We ultimately decided not to address the scope of the
Senate’s power to amend House-originated Bills because
Munoz-Flores and the Supreme Court’s other cases
delineating the scope of the Origination Clause provided a
clear path to the proper resolution of Sissel’s contention.
B.
The dissent also contends that the text of the Origination
Clause forecloses the approach that the Supreme Court has
used for more than a century and that we applied in this case.
Instead, the dissent states: “If any provision of the law raises
revenue for general governmental purposes, then the
Origination Clause applies.” Dissent 23 n.5. It explains:
The text of the Clause does not exempt bills that also
accomplish other objectives or serve other
predominant purposes. As long as the bill raises
revenue, the text of the Clause requires that the bill
originate in the House.
Id. at 13.
16
To the contrary, the text of the Origination Clause
supports the Supreme Court’s purposive approach. The text
of the Clause provides that:
All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may
propose or concur with Amendments as on other
Bills.
U.S. Const. art. I, § 7, cl. 1. The Clause’s critical word for
this analysis is “for.” The word “for” in this context means
“with the purpose or object of.” See Webster’s Third New
International Dictionary of the English Language 886 (1981);
see also Samuel Johnson, A Dictionary of the English
Language 353 (10th ed. 1792) (defining the word “for” as
meaning, among other things, “with intention of”).
The text of the Origination Clause supports the purposive
reading reflected in the Supreme Court’s decisions. The
dissent’s textual analysis ignores that the word “for” applies
to the purpose of a “Bill,” not to any single provision of it.
The grammatical reading of the text of the Origination Clause
is that it only reaches bills that have raising revenue as their
purpose or object. If it were meant to apply to all bills that
raised revenue, the Origination Clause would read “All Bills
that raise Revenue” shall originate in the House. The
purposive reading of the Origination Clause’s text also aligns
the Clause’s textual meaning with the Supreme Court’s
precedents, which have consistently held that bills whose
primary purpose is to raise revenue must originate in the
House, while all other bills may originate anywhere.
In contrast, if the dissent is right about what the Clause’s
text means, the Supreme Court’s cases have to be wrong
17
about it. The dissent admits that. Dissent 21-22. As the
dissent explains: “[S]ome might say that the Nebeker-
Millard-Munoz-Flores line of cases” are “inconsistent with
the constitutional text because the laws in those cases did
raise money, even though the money was designated by law
for specific programs.” Id. The dissent says there is a
“straightforward” explanation for that seemingly fatal
incongruity: In Nebeker, Millard, and Munoz-Flores the
Court carved out “narrow” exceptions to the Clause’s text for
“compelling” reasons supported by “history.” Id. at 22. As
discussed above, the Supreme Court’s decisions are better
read as consistent with the Constitution’s text.
C.
The dissent points out that the House has “blue-slipp[ed]”
revenue-raising bills with regulatory purposes. Id. at 15. But
the House has interpreted the Origination Clause far more
broadly than even the dissent believes is appropriate. The
practice of the House supports neither the panel nor the
dissent—its method differs from both. The House of
Representatives has charted its own path. That is its
prerogative. It does little to clarify the question now before
us.
The House has cited the Origination Clause in returning
to the Senate bills that appropriate funds, see 3 Lewis
Deschler, Deschler’s Precedents of the United States House
of Representatives ch. 13, §§ 20.2, 20.4 (1994), ban certain
imports, see 138 Cong. Rec. 3377 (Feb. 25, 1992); 145 Cong.
Rec. H5677-80 (July 15, 1999), adjust import quotas, see
Deschler’s Precedents ch. 13, § 15.4, and that reduce revenue
by granting tax exemptions, see id., §§ 15.3, 18.5. Recently,
the House blue-slipped a Senate bill that would have repealed
18
a fee whose proceeds, like those in Munoz-Flores and
Nebeker, were designated to pay for a particular nuclear waste
disposal program and were deposited into the general fund of
the Treasury only after they exceeded the cost of the program.
See 144 Cong. Rec. H878-79 (Mar. 5, 1998).
The House thus has considered the Clause to apply well
beyond the lines drawn by the Supreme Court, the panel in
this case, and the dissent. The House may well continue to do
so, and it retains the means by which to enforce its own
interpretation of the Clause. But, as a result, its practice does
not provide support for the dissent’s designation approach.
D.
The dissent claims that the Origination Clause “reflects a
deliberate choice made by the Framers at Philadelphia.”
Dissent 13. It cites the views of two individual Framers and
declares they “might as well have been speaking about the
Affordable Care Act.” Id. The Constitution certainly reflects
deliberate choices, but it is not at all clear that the dissent has
correctly analyzed the choices reflected in the Origination
Clause. The historical evidence best supports the Supreme
Court’s purposive interpretation.
What began as a requirement that “all money bills of
every kind shall originate in the House of Delegates & shall
not be altered by the Senate” eventually evolved into the
relatively limited prohibition on Senate origination of bills for
raising revenue that we have today. See Thomas L. Jipping,
TEFRA and the Origination Clause: Taking the Oath
Seriously, 35 BUFF. L. REV. 633, 661-62 & n.146 (1986). The
scope of the Origination Clause “underwent a narrowing of
focus from concerning ‘all money bills’ to ‘bills for raising
19
revenue’ through the course of the [constitutional]
convention.” Id. at 662. The narrowing was consequential:
“Successive versions of the clause show that the specific
powers contained in its original version were given up only
when it was clear that success of the convention required it.”
Id. at 661.
There is weighty evidence the Clause’s use of the phrase
“for raising revenue” was meant to establish a purposive
standard. On two occasions near the end of the Constitutional
Convention, supporters of the Clause proposed language that
expressly limited its reach to bills enacted for the purposes of
raising revenue. See 2 The Records of the Federal
Convention of 1787, at 294-97, 266-80 (Max Farrand ed.,
1911) (hereinafter Farrand’s Records). Opponents of the
Clause expressed no opposition to its narrowing, but focused
their criticisms on the absence of a Senate amendment power
and the Clause’s prohibition on Senate appropriations. See,
e.g., id. at 224, 274-80. That history suggests that the
Origination Clause’s “All Bills for raising Revenue” language
was meant to condense the purposive language put forward by
the Clause’s proponents near the close of the Convention—
“for the purposes of revenue”—but not to change its meaning.
The Constitutional Convention’s critical compromises
concerning the language and scope of the Origination Clause
occurred in its closing weeks, between mid-August and early
September 1787. As of mid-August, proponents of the initial,
broader version of the Origination Clause were on the
defensive. On August 6, the Committee of Detail—of which
Edmund Randolph, a strong supporter of the Origination
Clause, was a prominent member—put forward its draft
proposal for the Constitution. That draft included the
language: “All bills for raising or appropriating money . . .
20
shall originate in the House of Representatives, and shall not
be altered or amended by the Senate.” Id. at 178 (Aug. 6,
1787); see also William Ewald, The Committee of Detail, 28
CONST. COMMENT. 197 (2012) (describing circumstances
surrounding the Committee of Detail’s draft).
Two days later, a coalition of delegates came together to
strike the Clause from the draft of the Constitution, and
succeeded in doing so by a vote of 7-4. 2 Farrand’s Records
at 210-11 (Aug. 7, 1787); id. at 214 (Aug. 8, 1787). The
Clause’s opponents saw it as a needless landmine, one that
could seriously weaken the new national government by
investing too much power in what they viewed as the less
independent, less expert, and less responsible of the two
chambers of Congress, while generating pointless gridlock
and mortally weakening the Senate. See, e.g., id. at 224 (Aug.
8, 1787) (summarizing objections of Pinkney, Mercer, and
Madison, the last of whom “was for striking it out:
considering it as of no advantage to the large States as
fettering the Govt. and as a source of injurious altercations
between the two Houses”); id. at 274-80 (Aug. 13, 1787)
(summarizing additional objections of Wilson, Morris,
Madison, Carrol, Rutledge, and McHenry to a similar version
of the Origination Clause five days later).
The Origination Clause’s proponents, in an effort to
resuscitate it, suggested circumscribed language that they
hoped would reinstate its core. On August 11, Edmund
Randolph successfully moved to have the Clause
reconsidered:
[Randolph] signified that he should propose instead of
the original Section, a clause specifying that the bills
in question should be for the purpose of Revenue, in
21
order to repel ye. objection agst. the extent of the
words “raising money,” which might happen
incidentally, and that the Senate should not so amend
or alter as to increase or diminish the sum; in order to
obviate the inconveniences urged agst. a restriction of
the Senate to a simple affirmative or negative.
Id. at 263 (Aug. 11, 1787). That motion for reconsideration
passed by a vote of 9-1. Id. Randolph’s amended Origination
Clause read:
[A]ll bills for raising money for the purposes of
revenue, or for appropriating the same, shall originate
in the House of representatives; and shall not be so
altered or amended by the Senate, as to encrease or
diminish the sum to be raised, or change the mode of
raising or the objects of [its] appropriation.
Id. at 266 (Aug. 13, 1787). Speaking in favor of the revised
Origination Clause, George Mason explained that “[b]y
specifying purposes of revenue, it obviated the objection that
the Section extended to all bills under which money might
incidentally arise.” Id. at 273 (Aug. 13, 1787) (emphasis in
original).
Elbridge Gerry, probably the most ardent supporter of a
stronger Origination Clause, expressed displeasure with
Randolph’s narrowing and indicated it conceded too much. In
the debate over the new, narrower Origination Clause, Gerry
cautioned: “[A]cceptance of the plan will inevitably fail, if the
Senate be not restrained from originating Money bills.” Id. at
275. After substantial debate, the Convention rejected
Randolph’s amended language by a vote of 7-4. Id. at 266
(recording votes taken Aug. 13, 1787).
22
James Madison also spoke in that exchange. Madison was
against the inclusion of an Origination Clause. He had said
only five days earlier, with respect to a prior, broader version
that he “was for striking it out.” Id. at 224 (Aug. 8, 1787).
Madison explained that he thought Randolph’s
amendments to the Clause did little to repair it. See id. at
276-77 (Aug. 13, 1787). Randolph’s suggested purposive
language, he argued, would not prevent “contention &
faction,” and it could create “difficulties and disputes between
the two houses.” Id. at 276 (Aug. 13, 1787). Even if limiting
purposive language were inserted, the House could still insist
that Senate-originated trade bills were actually disguised bills
for raising revenue. See id. Randolph’s purposive language
would not prevent the two Houses from clashing over which
bills were subject to the Clause. See id. In Madison’s view,
the purposive language was not enough of an improvement.
See id. at 276-77.
The dissent leans on Madison’s remarks, but concludes
they express views opposite to those Madison held. See
Dissent 13-15. The dissent sees in Madison’s words a ringing
rejection of a purposive Origination Clause, not just by
Madison, but the whole Convention. Two flaws in that
account are especially pertinent.
First, Madison opposed Randolph’s purposive language
not because he favored a broader Clause (as the dissent
implies) but because he opposed the Clause entirely, and
thought the purposive language did not meaningfully narrow
it. The dissent’s error is in thinking that Madison was against
the language when in fact he was against the Clause, and
thought the language too limited a fix to persuade him to
support it. See Dissent 13-15 & nn.3-4.
23
Second, the dissent overlooks that, whatever Madison
thought, supporters of the Clause—those that most wanted it
in the Constitution—thought that a purpose-based limitation
was a compromise on which all sides could agree. The
dissent pins its argument that the Convention rejected the
purposive Origination Clause on two sentences by Madison.
The dissent overlooks entirely that Madison thought a non-
purposive Clause would be equally unworkable, 2 Farrand’s
Records at 276-77 (Aug. 13, 1787); id. at 224 (Aug. 8, 1787),
that discussion of the Origination Clause did not begin or end
with Madison’s remarks, and that when its supporters
regrouped and reintroduced the Clause thereafter, they left the
purposive language intact.
Following the rejection of Randolph’s proposal on August
13, Caleb Strong moved on August 15 to introduce language
substantially similar to Randolph’s, except that it also
authorized the Senate to amend House-originated bills passed
“for the purposes of revenue.” Id. at 294, 297. The revised
language of the Origination Clause read:
Each House shall possess the right of originating all
Bills except Bills for raising money for the purposes
of revenue or for appropriating the same and for fixing
the salaries of the Officers of Government which shall
originate in the House of representatives; but the
Senate may propose or concur with amendments as in
other cases.
Id. at 294. The Convention postponed consideration of the
motion to amend the relevant Section by a vote of 6-5. Id.
On August 21 it again deferred consideration of the
Amendment. Id. at 357-58.
24
On August 31, those parts of the draft Constitution that
had been postponed were referred to a committee called the
Committee of Eleven, composed of a Convention member
from each state. See id. at 473, 481 (Aug. 31, 1787) (listing
Committee members and purpose of the Committee). On
September 5, the Committee reported out a version of the
Origination Clause almost identical to the modern Clause. It
included the important requirement that “all Bills for raising
Revenue” would originate in the House of Representatives,
along with language permitting the Senate to amend such
bills. Id. at 505 (Sept. 5, 1787). The convention finalized the
Clause three days later by slightly amending the language
governing the Senate’s amendment authority. Id. at 552
(Sept. 8, 1787). The Convention settled on that language by a
vote of 9-2, id., and signed the Constitution nine days later, on
September 17, 1787.
The final language of the Clause employs a word (“for”)
that is widely recognized as a synonym for the words “for the
purposes of”—the very language the proponents of the
narrowed substitute Clause had suggested. See id. at 263
(Aug. 11, 1787) (Randolph’s proposed language: “All bills for
raising money for the purposes of revenue”); id. at 294 (Aug.
15, 1787) (Strong’s proposed language: “Bills for raising
money for the purposes of revenue”). That evidence suggests
that the Supreme Court’s purposive reading of the Origination
Clause is the reading the Framers intended.
The dissent misses that substitution of the Constitution’s
“for raising revenue” language for its “for raising money for
the purposes of revenue” language occurred in a context
making clear that it was a stylistic change, not a substantive
one. The Committee of Eleven that proposed much of the
Constitution’s final text primarily regarded the question
25
before it as whether to include the Clause at all. See Charles
Warren, The Making of the Constitution 668-71 (1937).
Ultimately, the Committee chose to include the Origination
Clause in exchange for investing the Senate with the power to
choose the President when a majority of the electors were not
united for any candidate.4 Id. at 669 (explaining that “to
conciliate those who would be inclined to oppose such an
increase of power in the Senate” the Committee adopted “the
suggestion which Caleb Strong had made as to revenue
bills”). The slight change from Caleb Strong’s proposed
wording brooked no recorded comment whatsoever when
placed before the Convention, see 2 Farrand’s Records at
508-10 (Sept. 5, 1787), and the Convention specifically
adopted the Clause’s “for raising Revenue” language by a
vote of 9-2. Id. at 545, 552 (Sept. 8, 1787). One would
hardly expect such a united and amicable outcome if the
scope of the Clause remained an issue. The foregoing is
powerful evidence that the Committee of Eleven did not
quietly broaden the Origination Clause’s scope in early
September. The best reading of the history is that the
Convention finalized the scope of the Clause in mid-August
(when it debated the Clause’s purposive language) and
delegated to the Committee of Eleven the more limited
question whether or not to include it in the Constitution at all.
See Warren, supra at 668-71.
4
The Convention rejected the Senate-empowering half of the
Committee’s compromise and placed in the House of
Representatives the power to choose the President when a majority
of the electors were not united for any candidate. See U.S. Const.
art. II, § 1, cl. 3; 2 Farrand’s Records at 519, 527, 531 (Sept. 6,
1787); 1 George Ticknor Curtis, Constitutional History of the
United States 457 (1889).
26
What of the dissent’s reliance on statements by Elbridge
Gerry and James Madison praising a seemingly broader
Origination Clause? The version Gerry championed is not in
the Constitution. Gerry criticized the Constitution for
rejecting his vision of the Origination Clause, and he cited
that rejection as a reason why he refused to sign the
Constitution and advocated against its ratification. See Letter
of Elbridge Gerry to the Vice President of the Convention of
Massachusetts (Jan. 21, 1788), reprinted in 3 Farrand’s
Records at 265. Madison extolled the Origination Clause in
Federalist 58, not because it gave the House power over all
taxes, but because, in his opinion, it vested the House with
exclusive power to originate appropriations bills. See The
Federalist No. 58, at 359 (James Madison) (Clinton Rossiter
ed., 1961) (explaining that the House’s power would derive
from its “power over the purse”). Neither “revenue” nor
“tax” is mentioned in Federalist 58. Id. at 356-61. And at the
Convention itself, Madison appeared vocally to oppose the
Clause. See 2 Farrand’s Records at 224 (Aug. 8, 1787); id. at
276-77 (Aug. 13, 1787).
Because the Supreme Court has instructed us how to
decide Origination Clause questions, this case presents no
occasion for a comprehensive historical inquiry. But even the
modest look we take here demonstrates that the gloss given by
the dissent is wide of the mark.
E.
In addition to evidence from the framing and ratification,
early constitutional history confirms that the Origination
Clause’s expected application was through a purpose-based
test. St. George Tucker, writing in 1803 in the first major
treatise on American law, argued that the Origination Clause
27
should be read in light of English practice and therefore
sweepingly construed to prevent the Senate from raising
revenue through even “indirect modes of taxation” such as
“debasing the value of the coin.” St. George Tucker,
Blackstone’s Commentaries 261 (1803). Tucker, however,
was forced to acknowledge, in a lengthy footnote, that the
practice of the first Congresses had already shown that those
bodies thought the Origination Clause was quite narrow, and
that laws that raised revenue, even “to a very considerable
amount,” did not implicate the Origination Clause unless
“revenue was intended to be drawn to the government by
these laws.” Id. at 261 n.§ (1803).
Justice Joseph Story, writing in 1833 in his own
Commentaries on the Constitution, commented on Tucker’s
treatment of the Origination Clause, explaining that “[a]
learned commentator[, Tucker,] supposes, that every bill,
which indirectly or consequentially may raise revenue, is,
within the sense of the constitution, a revenue bill.” 2 Joseph
Story, Commentaries on the Constitution § 877, at 343
(1833). Justice Story went on to explain that “the practical
construction of the constitution has been against his opinion,”
id., and that “the history of the origin of the power, already
suggested, abundantly proves, that it has been confined to
bills to levy taxes in the strict sense of the words, and has not
been understood to extend to bills for other purposes, which
may incidentally create revenue,” id.
Justice Story’s views form the basis of controlling
precedent in this court and in the Supreme Court. In deciding
the first appeal of Nebeker, this court quoted extensively from
Justice Story’s Commentaries on the Constitution. The
opinion noted Story’s recognition that there were two views
of the Origination Clause: a view that “supposes that every
28
bill which indirectly or consequentially may raise revenue is,
within the sense of the Constitution, a revenue bill,” and the
superior view that “it has been confined to bills to levy taxes
in the strict sense of the words, and has not been understood
to extend to bills for other purposes, which may incidentally
create revenue.” 3 App. D.C. at 201 (quoting 1 Joseph Story,
Commentaries on the Constitution § 880); see also United
States v. Norton, 91 U.S. 566, 569 (1875) (citing Justice
Story’s views approvingly). The Supreme Court concluded,
as we did then and must again here, that the latter view was
correct. 167 U.S. 196, 202 (adopting Justice Story’s views);
see also Millard, 202 U.S. at 436 (treating Justice Story’s
views as having been adopted by the Supreme Court in
Nebeker). Justice Story’s comments on Tucker have been
quoted in Supreme Court opinions on the Origination Clause,
often as grounds for holding that the law at issue does not
come within the scope of the Clause. See Munoz-Flores, 495
U.S. at 397; Millard, 202 U.S. at 436.
Early congressional practice, recognized by two of
America’s most influential early constitutional scholars and
endorsed by one of them (Story), strongly suggests that the
original expected application of the Origination Clause was
purposive. Most importantly, in our view, that is the
approach that was adopted and has been reaffirmed by the
Supreme Court.
***
For these reasons, the dissent from the denial of rehearing
en banc presents no basis for the en banc court to revisit the
holding that Sissel’s challenge to the mandate in section
5000A of the Affordable Care Act does not come within the
scope of the Origination Clause. In adhering to Supreme
29
Court precedent adopting a purposive interpretation, the panel
opinion honors the balance of power between the two Houses
of Congress as envisioned by the Framers, thereby
safeguarding individual liberty. There is no basis for the
dissent’s accusation to the contrary. See Dissent 22-23. The
court has correctly voted to deny rehearing en banc.
KAVANAUGH, Circuit Judge, with whom Circuit Judges
HENDERSON, BROWN, and GRIFFITH join, dissenting from the
denial of rehearing en banc: This case raises a serious
constitutional question about the 2010 Affordable Care Act, one
of the most consequential laws ever enacted by Congress. Did
Congress’s enactment of the Act comport with the Origination
Clause of the Constitution? The Origination Clause provides:
“All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
Amendments as on other Bills.” U.S. Const. art. 1, § 7, cl. 1.
The Origination Clause therefore requires that bills for “raising
Revenue” originate in the House of Representatives. Revenue
bills may be amended in the Senate “as on other Bills,” but they
must originate in the House. If the Affordable Care Act did not
meet the requirements of the Origination Clause, then the Act –
or at least revenue-raising provisions such as the individual
mandate – must be invalidated.
In my view, the Affordable Care Act complied with the
Origination Clause, but not for the reason articulated by the
three-judge panel opinion. The panel opinion concluded that
the Affordable Care Act was not a revenue-raising bill for
purposes of the Origination Clause and therefore did not have to
originate in the House. In my respectful view, that conclusion
is untenable. The Affordable Care Act established new
subsidies for the purchase of health insurance and expanded the
Medicaid program for low-income Americans. Those new
subsidies and expanded entitlements cost an enormous amount
of money. So as not to increase the annual budget deficit and
the overall national debt, the Act imposed numerous taxes to
raise revenue. Lots of revenue. $473 billion in revenue over 10
years. It is difficult to say with a straight face that a bill raising
$473 billion in revenue is not a “Bill for raising Revenue.”
The Affordable Care Act therefore was a revenue-raising
bill subject to the Origination Clause. That said, the Act did
2
in fact originate in the House, as required by the Clause.
Although the original House bill was amended and its
language replaced in the Senate, such Senate amendments are
permissible under the Clause’s text and precedent.
So in concluding that the Affordable Care Act complied
with the Origination Clause, the panel opinion reached the
right bottom line, but relied on what I see as a faulty rationale.
Does such a case still warrant en banc review? Oftentimes
no, but here yes. The panel opinion sets a constitutional
precedent that is too important to let linger and metastasize.
Although no doubt viewed by some today as a trivial or
anachronistic annoyance, the Origination Clause was an
integral part of the Framers’ blueprint for protecting the
people from excessive federal taxation. It is true that the
Framers’ decision to grant the Senate a broad amendment
power gave the Origination Clause less bite than it otherwise
might have had. But the Clause nonetheless has been
important historically and remains vital in the modern
legislative process. By newly exempting a substantial swath
of tax legislation from the Origination Clause, the panel
opinion degrades the House’s origination authority in a way
contrary to the Constitution’s text and history, and contrary to
congressional practice. As a result, the panel opinion upsets
the longstanding balance of power between the House and the
Senate regarding the initiation of tax legislation. Therefore, I
would grant rehearing en banc. In my respectful view, the en
banc Court should vacate the panel opinion and rule for the
Government on the ground that the Affordable Care Act
originated in the House and thereby complied with the
Origination Clause.
At oral argument in the Supreme Court’s most recent
Origination Clause case some years ago, United States v.
Munoz-Flores, 495 U.S. 385 (1990), Justice O’Connor posed
3
a hypothetical about a national highway funding bill that
increased income taxes to be paid into the general treasury
“for that purpose” – that is, to “support the road building.”
That hypothetical almost precisely tracks the Origination
Clause issue we face in this case. The hypothetical was not
presented in Munoz-Flores, but Justice O’Connor asked about
it to test the limits of the Government’s theory. The
Government attorney dutifully claimed (then as now) that
such a hypothetical bill would not be subject to the
Origination Clause. Justice O’Connor responded: “Well,
that’s a pretty extreme position.” True then. And true now.
I
On October 8, 2009, the House of Representatives passed
H.R. 3590, the Service Members Home Ownership Tax Act
of 2009. That bill, among other things, modified the first-
time homebuyer tax credit for service members, increased
some corporate tax prepayment rates, and increased the tax
penalty for failing to file certain corporate tax returns. After
passing in the House, H.R. 3590 was sent to the Senate.
There, Senate Majority Leader Harry Reid offered an
“Amendment in the nature of a substitute” to H.R. 3590. The
amendment struck all of the language after the bill’s
introductory “enacting clause” and inserted in its place the
Senate’s version of what became the Affordable Care Act.
Instead of introducing a new Senate bill, Senator Reid
proceeded via amendment of a House bill. By proceeding in
that manner, the Senate recognized that the Origination
Clause of the Constitution requires revenue-raising bills to
originate in the House. The Senate passed the amended bill
on December 24, 2009, and the House in turn passed the
amended bill without further change on March 21, 2010.
President Obama then signed it into law on March 23, 2010.
4
Sissel argues that the Affordable Care Act is a bill “for
raising Revenue” that had to originate in the House under the
Origination Clause of the Constitution. He further contends
that the law did not originate in the House. Sissel is correct
about the first point but wrong about the second. The
Affordable Care Act was a bill for raising revenue. But it
originated in the House.
The Origination Clause appears in Article I, Section 7,
Clause 1 of the Constitution. It provides: “All Bills for
raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
Amendments as on other Bills.” Although obscure to many
observers today, the Clause was very important to the
Framers and remains vital to the modern legislative process.
The Origination Clause was one of the many finely tuned
mechanisms the Framers adopted to separate power within the
new national government, so as to avoid the dangers of
concentrated power and thereby protect individual liberty.
To explain the background: At the Constitutional
Convention, the structure and powers of the national
government were the subject of contentious deliberations.
Those deliberations included great debates about the
Legislative Branch. Many feared that a single legislative
body would become too powerful, swallow up the other
Branches, and threaten individual liberty. See generally THE
FEDERALIST NO. 48, at 309 (James Madison) (Clinton
Rossiter ed., 1961). In addition, the smaller states worried
that representation by population in the national legislature
would overwhelm their interests, while the larger states feared
that equal representation for each state would unfairly dilute
the larger states’ power and make them easy financial targets.
See 1 The Records of the Federal Convention of 1787, at 177-
80 (Max Farrand ed., 1911). To help address some of those
5
concerns, the Framers reached a Great Compromise. The
Convention established a bicameral legislature that would
divide the legislative power between two bodies, thereby
preventing concentration of power in a single legislative
assembly. To resolve the large state versus small state
dispute, the Great Compromise provided for equal
representation by state in the Senate and proportional
representation by population in the House.
With two bodies, however, also came the delicate task of
allocating legislative powers between the House and Senate.
The taxing power was perhaps the most critical. After all,
one great failing of the Articles of Confederation was the
inability of the national government to tax citizens and fund
national priorities such as the military. The delegates at
Philadelphia therefore granted Congress a broad power to tax.
At the same time, the Framers understood the dangers
inherent in the power to tax, namely, that “the power to tax
involves the power to destroy.” McCulloch v. Maryland, 17
U.S. 316, 431 (1819). They had just fought a war for
independence fueled by outrage at taxation without
representation.
So the delegates vigorously debated how to divide the
power to tax between the House and the Senate. The
Convention ultimately decided to grant the House of
Representatives the exclusive power to originate tax bills,
although the bills would then be open to Senate amendment.
As James Madison later explained, the “principal reason”
why the Constitution gave exclusive origination power to the
House was that members of the House are “chosen by the
People,” “best acquainted with their interests,” and subject to
“more frequent[]” elections. 1 Debates and Proceedings in
the Congress of the United States 361 (Joseph Gales ed.,
1834).
6
The Origination Clause was so central to the founding
blueprint that one delegate to the Constitutional Convention,
reflecting the prevailing sentiment, warned that the
“acceptance of the [Constitutional] plan will inevitably fail, if
the Senate be not restrained from originating Money bills.” 2
The Records of the Federal Convention of 1787, at 275
(statement of Elbridge Gerry) (Aug. 13, 1787) (Max Farrand
ed., 1911); id. at 5 (statement of Elbridge Gerry) (July 14,
1787) (calling the Origination Clause the “corner stone” of
the Great Compromise). Likewise, during the crucial
ratification debates in New York, Madison stressed the
importance of the House’s origination authority. See THE
FEDERALIST NO. 58 (James Madison).
The House’s origination power, like other aspects of the
constitutionally established separation of powers, was “not
simply an abstract generalization in the minds of the
Framers,” but was expressly “woven into the document that
they drafted in Philadelphia in the summer of 1787.”
Immigration & Naturalization Service v. Chadha, 462 U.S.
919, 946 (1983) (quoting Buckley v. Valeo, 424 U.S. 1, 124
(1976)) (internal quotation marks omitted).
Those structural details, the Supreme Court has stated
many times, are not simply matters of etiquette or
architecture. They also help protect individual liberty – in
this instance, by ensuring that only those representatives
closest to the people can initiate legislation to wrest money
from the people. See generally Free Enterprise Fund v.
Public Company Accounting Oversight Board, 561 U.S. 477,
501 (2010) (the “Framers recognized that, in the long term,
structural protections against abuse of power were critical to
preserving liberty”) (internal quotation marks omitted);
Clinton v. City of New York, 524 U.S. 417, 450 (1998)
(Kennedy, J., concurring) (“Liberty is always at stake when
7
one or more of the branches seek to transgress the separation
of powers.”); Metropolitan Washington Airports Authority v.
Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S.
252, 272 (1991) (“The ultimate purpose of this separation of
powers is to protect the liberty and security of the
governed.”); Free Enterprise Fund v. Public Company
Accounting Oversight Board, 537 F.3d 667, 714 (D.C. Cir.
2008) (Kavanaugh, J., dissenting) (“the separation of powers
protects not simply the office and the officeholders, but also
individual rights”).
Moreover, what “the Court has said of the allocation of
powers among branches is no less true of such allocations
within the Legislative Branch.” United States v. Munoz-
Flores, 495 U.S. 385, 394 (1990). “Provisions for the
separation of powers within the Legislative Branch are thus
not different in kind from provisions concerning relations
between the branches; both sets of provisions safeguard
liberty.” Id. at 395.
Because the constitutional structure helps safeguard
individual liberty, the Judiciary has long played a critical role
in preserving the structural compromises and choices
embedded in the constitutional text. The Supreme Court has
often explained that, in cases where a plaintiff has standing,
the “courts possess power to review either legislative or
executive action that transgresses identifiable textual limits.”
Nixon v. United States, 506 U.S. 224, 238 (1993); Powell v.
McCormack, 395 U.S. 486, 506 (1969); Marbury v. Madison,
5 U.S. 137, 176 (1803) (“The powers of the legislature are
defined, and limited,” and “those limits may not be mistaken,
or forgotten.”). Consistent with those general principles, the
Supreme Court has held that the Judiciary possesses the
authority and the responsibility to address and remedy
violations of the Origination Clause. See Munoz-Flores, 495
8
U.S. at 387. As the Court stated in Munoz-Flores: “Surely a
judicial system capable of determining when punishment is
‘cruel and unusual,’ when bail is ‘[e]xcessive,’ when searches
are ‘unreasonable,’ and when congressional action is
‘necessary and proper’ for executing an enumerated power is
capable of making the more prosaic judgments demanded by
adjudication of Origination Clause challenges.” Id. at 396. 1
It is therefore our duty here to assess whether the
Affordable Care Act complied with the Origination Clause.
II
The Affordable Care Act is, among other things, a
massive tax bill. The Congressional Budget Office forecasted
that the Act would raise $473 billion in revenue over 10
years. See Letter from Douglas W. Elmendorf, Director,
Congressional Budget Office, to Nancy Pelosi, Speaker of the
United States House of Representatives (March 20, 2010), in
Congressional Budget Office, Selected CBO Publications
Related to Health Care Legislation, 2009-2010, at 21-22
(2010). 2 Those new revenues were indispensable to the law
1
To be sure, a potentially challenging remedial or severability
question arises if a law is found to violate the Origination Clause:
Should a court invalidate the whole law or strike only those
revenue-raising provisions that originated in the Senate? We need
not address that question in this case because the Act did originate
in the House, as explained below.
2
That revenue number represents the CBO’s revenue
projection for only the Affordable Care Act, H.R. 3590, not for that
Act in combination with the Health Care and Education
Reconciliation Act of 2010, H.R. 4872. The Reconciliation Act
was passed shortly after the Affordable Care Act and made certain
corrections to it. Considered together, the two bills were projected
9
because proponents did not want the law’s new health
insurance subsidies and expanded Medicaid entitlements to
substantially increase the annual budget deficit and add to the
Nation’s overall debt. The new revenues would largely offset
the Act’s significant new expenditures on the overall federal
balance sheet, or at least that was the hope. The revenue
provisions were essential to counter fears and accusations that
the new law would bust the budget. See generally Steven
Brill, America’s Bitter Pill 164 (2015) (“The main concern at
the White House was revenue.”).
The Act contains a wide variety of revenue-raising
provisions ranging from the tax penalty on individuals who
do not have insurance (commonly known as the individual
mandate), to the tax penalty on employers who do not provide
insurance, to additional payroll taxes, to new taxes on
“Cadillac” health plans, pharmaceutical manufacturers,
medical device companies, health insurers, and cosmetic
surgery. See Pub. L. No. 111-148, §§ 1501, 1513, 9015,
9001, 9008, 9009, 9010, 9017, 124 Stat. 119 (2010). The Act
refers to the Internal Revenue Code about 200 times. It also
uses the word “tax” about 200 times. It dedicates an entire
title to “Revenue Provisions.” See id. tit. IX. And the
Congressional Budget Office repeatedly scored the Act’s
effects on revenue enhancement and deficit reduction. See
Selected CBO Publications Related to Health Care
Legislation, 2009-2010.
There may be close calls in determining whether a bill
raises revenue for purposes of the Origination Clause. In my
view, this case is not a close call. Under the text, history, and
to raise $525 billion in revenue over 10 years. See Selected CBO
Publications Related to Health Care Legislation, 2009-2010, at 21.
10
precedent of the Origination Clause, a bill such as the
Affordable Care Act that raises substantial revenue that is
used for general governmental purposes easily qualifies as a
bill “for raising Revenue.” As the Supreme Court has
explained, the Origination Clause applies to a “statute that
raises revenue to support Government generally.” United
States v. Munoz-Flores, 495 U.S. 385, 398 (1990). That
description readily covers the Affordable Care Act.
The Government nevertheless argues (and the panel
opinion surprisingly agreed) that the Affordable Care Act is
not a revenue-raising bill subject to the Origination Clause. I
respectfully but strongly disagree.
To begin with, the Government points out that the
Affordable Care Act has purposes other than raising revenue.
That is of course true. That is true of most legislation. But
that is also irrelevant under the Origination Clause. No case
or precedent of which I am aware has said that a law that
raises revenues for general governmental use is exempt from
the Origination Clause merely because the law has other,
weightier non-revenue purposes. Imagine a simple gas tax
bill introduced in the Senate. Suppose that the bill is
combined with a major national security bill also introduced
in the Senate. Does that render the combined Senate bill
exempt from the Origination Clause because the national
security purposes predominate? Of course not. If it were
otherwise, the Senate could systematically evade the
Origination Clause by tacking Senate-originated revenue
provisions onto other Senate-originated bills. But that is
neither the law nor the congressional practice.
Likewise, no case or precedent of which I am aware has
said that a regulatory tax – that is, a tax that seeks in some
way to influence conduct – is exempt from the Origination
11
Clause merely because such a tax also has a purpose of
encouraging or discouraging certain behavior. It does not
matter whether that regulatory purpose might be said to
predominate. Imagine the same gas tax bill introduced in the
Senate. Suppose that its sponsors say that the bill is designed
to discourage excessive driving, encourage the use of public
transportation, and help the environment. Does that render it
exempt from the Origination Clause? Of course not.
Otherwise, most taxes would escape the Origination Clause.
After all, virtually every tax has the dual purposes of raising
revenue and influencing behavior. To borrow the words of
the Supreme Court: “[E]very tax is in some measure
regulatory.” National Federation of Independent Business v.
Sebelius, 132 S. Ct. 2566, 2596, slip op. at 37 (2012) (quoting
Sonzinsky v. United States, 300 U.S. 506, 513 (1937))
(internal quotation marks omitted); see also id. at 2596, slip
op. at 36 (“taxes that seek to influence conduct are nothing
new”). That is because a tax “interposes an economic
impediment to the activity taxed as compared with others not
taxed.” Id. at 2596, slip op. at 37 (internal quotation marks
omitted). It is neither the law nor the practice to exempt
regulatory taxes from the Origination Clause.
And consider this. Suppose the Affordable Care Act had
been split into two bills. One bill had all the subsidies,
entitlements, and new regulatory prohibitions. The other bill
had all the new taxes and revenue-raising provisions. Even
the Government and the panel opinion would presumably
concede that the Origination Clause applies to the latter bill.
But when the two bills are combined into one bill, the
requirements of the Origination Clause magically disappear,
they say. That makes little sense, at least to me.
As a practical matter, moreover, while courts can
sometimes identify the various purposes of a law, it is
12
extremely difficult for a Court to identify one predominant
purpose. Courts cannot realistically determine the
predominant purpose of a regulatory tax, or of a large piece of
legislation with numerous provisions and multiple objectives.
Indeed, the Supreme Court has cautioned against trying to
divine a legislature’s “primary” purpose. The “search for
legislative purpose is often elusive enough, without a
requirement that primacy be ascertained.” McGinnis v.
Royster, 410 U.S. 263, 276 (1973) (citation omitted).
Complicating the task still further, each legislator could have
a different “primary” purpose for passing a revenue bill. And
judicial inquiries into those purposes “would allow courts to
peruse legislative proceedings for subtle emphases supporting
subjective impressions and preferences.” Id. at 277; see also
Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863,
870 (1930) (“The chances that of several hundred men each
will have exactly the same determinate situations in mind . . .
are infinitesimally small.”); cf. In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 759 (D.C. Cir. 2014) (“[T]rying to find the
one primary purpose for a communication motivated by two
sometimes overlapping purposes . . . can be an inherently
impossible task.”).
The panel concurrence in the denial of rehearing en banc
confidently says: “The purpose of the ACA was to overhaul
the national healthcare system, not to raise revenue.” Panel
Concurrence at 9. But the purpose of the Act was to overhaul
the national healthcare system and to raise revenue. You
couldn’t do the former without also doing the latter.
But put aside the basic theoretical and practical problems
with the Government’s argument. The Government’s theory
suffers from more fundamental flaws, namely that it
contradicts the Origination Clause’s text, history, and
precedent.
13
Consider the text. The text of the Origination Clause
unmistakably embraces all bills that are intended to raise
revenue. The Clause says that it applies to “All Bills for
raising Revenue.” Period. The text of the Clause does not
exempt bills that also accomplish other objectives or serve
other predominant purposes. As long as the bill raises
revenue, the text of the Clause requires that the bill originate
in the House.
Importantly, moreover, that text reflects a deliberate
choice made by the Framers at Philadelphia. During the
Constitutional Convention, Virginia delegate Edmund
Randolph proposed that the protections of the Origination
Clause apply only to bills that were solely for raising revenue.
He suggested in particular that the Clause apply only to “Bills
for raising money for the purpose of revenue.” 2 The Records
of the Federal Convention of 1787, at 273 (Aug. 13, 1787)
(Max Farrand ed., 1911).
James Madison objected to Randolph’s formulation. “In
many acts,” Madison presciently said, “the object would be
twofold.” Id. at 276 (statement of James Madison) (Aug. 13,
1787). Although the “raising of revenue would be one of
them,” how “could it be determined which was the primary or
predominant one”? Id. (Aug. 13, 1787). Madison might as
well have been speaking about the Affordable Care Act. 3
3
Madison was not a supporter of the Origination Clause, as
the panel concurrence notes. But that is in part because he wanted
proportional representation in the Senate. The Great Compromise
eliminated proportional representation in the Senate, with the
Origination Clause being some recompense to the large States for
agreeing to the Compromise. Madison saw the Origination Clause
as weak compensation for losing proportional representation in the
14
In his statement opposing Randolph’s approach, Madison
cited historical experience. He noted that when tensions “first
opened” with Great Britain, “their power to regulate trade was
admitted. Their power to raise revenue rejected.” Id. (Aug.
13, 1787). Yet it proved impossible to distinguish between
the two powers because trade regulations raised revenue in
addition to serving other purposes. As Madison summarized:
“An accurate investigation of the subject afterward proved
that no line could be drawn between the two cases.” Id. (Aug.
13, 1787).
Madison’s view about Randolph’s “for the purpose of
revenue” language prevailed, and the Convention defeated
Randolph’s proposal by a vote of 7 to 4. See id. at 280 (Aug.
13, 1787). 4 Over the ensuing weeks, the delegates engaged in
further back and forth about the Clause, but the “for the
purpose of revenue” language never made it into the final
version of the Clause.
The panel concurrence says that the Convention’s formal
rejection of the words “for the purpose of revenue” was
Senate. Madison also pointed out several flaws in various proposed
versions of the Clause, including the problem of trying to identify a
primary purpose of legislation. The Convention agreed with him
on that point. Contrary to the suggestion in the panel concurrence,
Madison’s prescient and successful objection to the “purpose of
revenue” language cannot be deemed irrelevant simply because he
also had other concerns about the Clause.
4
The panel concurrence says that delegates to the Convention
“expressed no opposition” to the “narrowing” proposed by
Randolph. Panel Concurrence at 19. That is incorrect. Madison’s
statement objected to the precise words that the concurrence now
contends were incorporated sub silentio into the final version of the
Clause. And the vote was 7 to 4 in Madison’s favor.
15
largely meaningless, a mere stylistic change. In the panel
concurrence’s view, the final version of the Clause still
applies only to bills for raising revenue “for the purpose of
revenue,” even though the Convention deleted the words “for
the purpose of revenue.” See Panel Concurrence at 19-20, 24-
25. James Madison thought otherwise. He believed that
deletion of that language mattered substantively. I will go
with James Madison on this one.
Consistent with the text and drafting history of the
Origination Clause, the House of Representatives has long
asserted its Origination Clause prerogative. The House does
so by a practice known as “blue-slipping” a Senate bill. Most
importantly for this case, the House has regularly asserted its
Origination Clause authority against Senate-originated bills
that have the “twofold” revenue-raising and regulatory
purposes identified by Madison. For example, asserting the
Origination Clause, the House has frequently declined to
consider Senate-originated bills that would impose regulatory
taxes and deter or encourage certain activities. See 3 Lewis
Deschler, Deschler’s Precedents of the United States House
of Representatives ch. 13, § 15.5 (1977) (bill using tax
penalties to deter overfishing); id. § 15.3 (bill using tax
exemptions to support the Olympic Games); id. § 15.7 (bill
amending the National Firearms Act); see also H.R. 249,
106th Cong. (1999) (bill that relates to a gun tax).
That history of Congressional practice is relevant here
because, as the Supreme Court has explained, “[l]ong settled
and established practice is a consideration of great weight” in
separation of powers cases. National Labor Relations Board
v. Noel Canning, 134 S. Ct. 2550, 2559, slip op. at 7 (2014)
(quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929))
(alteration in original).
16
It is true that the House may go beyond the Origination
Clause and, as a matter of its own internal rules, require even
non-revenue bills to originate in the House. But that’s not
what was happening in those historical examples. In those
historical examples (and many others), the House expressly
cited and relied on its longstanding interpretation of the
Origination Clause. Under Supreme Court precedent,
Congress’s longstanding constitutional interpretation and
practice does not bind us, but it informs our interpretation.
See Zivotofsky v. Kerry, No. 13-628, slip op. at 20-21 (U.S.
June 8, 2015); Noel Canning, 134 S. Ct. at 2559, slip op at 7.
All of the above seems rather straightforward and a
matter of common sense in demonstrating that the Origination
Clause applies to revenue-raising bills such as the Affordable
Care Act. Indeed, back in 2009, the Senate itself understood
that the Act was a revenue-raising bill and that the
Origination Clause therefore applied to the Act. That is one
reason why Majority Leader Reid introduced the Affordable
Care Act as an amendment to a House revenue bill rather than
as a stand-alone Senate bill.
So how do the Government and the panel opinion reach
the contrary conclusion? The answer, in my respectful view,
is that they incorrectly read the Supreme Court precedents on
the Origination Clause. Those cases have carved out a
narrow exception to the Origination Clause for certain
relatively unusual statutory schemes. The panel opinion
blows that narrow exception up into a giant new exemption
from the Origination Clause, even for obviously revenue-
raising bills such as the Affordable Care Act, which raises
$473 billion in revenue.
The Supreme Court has stated that “revenue bills are
those that levy taxes in the strict sense of the word.” Twin
17
City Bank v. Nebeker, 167 U.S. 196, 202 (1897); Munoz-
Flores, 495 U.S. at 397. The Affordable Care Act levies
numerous such taxes. To be sure, the Supreme Court has
stated that “bills for other purposes which may incidentally
create revenue” are not “Bills for raising Revenue” within the
meaning of the Clause. Id. But those cases did not exempt
from the Origination Clause all laws that have additional or
predominant purposes other than raising revenue. Those
cases did not exempt regulatory taxes from the Origination
Clause. The Supreme Court has been very careful to exclude
from the Origination Clause only those bills that have “no
purpose by the act or by any of its provisions to raise revenue
to be applied in meeting the expenses or obligations of the
Government.” Nebeker, 167 U.S. at 203 (emphasis added)
(tax on banks used to pay for the printing of currency has “no
purpose” to raise general revenue); see also Millard v.
Roberts, 202 U.S. 429, 436-37 (1906) (property tax used to
construct railroad infrastructure has “no purpose” to raise
general revenue) (internal quotation marks omitted); Munoz-
Flores, 495 U.S. at 398-99 (special assessment on convicted
criminals to fund the Crime Victims Fund has “no purpose” to
raise general revenue) (internal quotation marks omitted).
What has the Supreme Court meant in carving out this
exception or limitation? As the Court’s cases reveal, the
critical distinction drawn by the Supreme Court in its
Origination Clause cases is between (i) laws that raise
revenues paid into the general treasury and available for
general governmental uses and (ii) laws that raise revenues
designated for use in a specific program. Laws in the former
category – which encompasses the vast majority of laws that
raise money – are subject to the Origination Clause. Laws in
the latter category are not subject to the Origination Clause.
18
Indeed, the Supreme Court said this explicitly in Munoz-
Flores, its most recent Origination Clause case. The Court
quoted the “bills for other purposes which may incidentally
create revenue” language from Nebeker. Then the Munoz-
Flores Court immediately stated: “The Court has interpreted
this general rule to mean that a statute that creates a particular
governmental program and that raises revenue to support that
program, as opposed to a statute that raises revenue to support
Government generally, is not a ‘Bil[l] for raising Revenue’
within the meaning of the Origination Clause.” Munoz-
Flores, 495 U.S. at 397-98. Munoz-Flores thus tells us
exactly how to interpret the Nebeker “other purposes”
language and what it means. Id. Munoz-Flores
unambiguously understood Nebeker’s exception for “bills for
other purposes which may incidentally create revenue” to
apply to a carefully circumscribed set of cases.
A review of the Court’s older Origination Clause cases
further illustrates the point. In Nebeker, for example, the law
imposed a tax on banks. But the tax was not imposed to raise
revenue for general governmental purposes; rather, the law
imposed the tax “to meet the expenses attending the execution
of the act” – that is, to fund the printing and distribution of
America’s first treasury-backed currency. Nebeker, 167 U.S.
at 202. The Supreme Court concluded that the law therefore
fell outside the scope of the Origination Clause. The statute,
the Court explained, had “no purpose” to raise funds “to be
applied in meeting the expenses or obligations of the
Government.” Nebeker, 167 U.S. at 203. Rather, all of the
funds raised were designated by law to be used to pay the
costs of printing and distributing currency.
In Millard, the Court considered a tax on property in the
District of Columbia. The tax was designated by law solely
to fund railroad infrastructure improvements in the District of
19
Columbia. The Court held that the law imposing the tax was
not subject to the Origination Clause. The Court found that
the arrangement was “‘practically that of a contract’” between
the Government and the railroad companies, in which the
revenues were “but means to the purposes provided by the
act.” Millard, 202 U.S. at 437.
Finally, in Munoz-Flores, the Court relied on Nebeker
and Millard and again reached a similar conclusion. The
Court concluded that a bill that fined convicted criminals and
redistributed those funds to a Crime Victims Fund had “no
purpose” to raise general revenues to be used for general
governmental purposes. Munoz-Flores, 495 U.S. at 398(internal quotation marks omitted).
For the Court in Munoz-Flores, the essential point, as “in
Nebeker and Millard,” was that the provision at issue raised
money only “as part of a particular program to provide
money for that program.” Id. at 399 (emphases added). To
reiterate, the Munoz-Flores Court summarized the critical
Origination Clause principle as follows: A “statute that
creates a particular governmental program and that raises
revenue to support that program, as opposed to a statute that
raises revenue to support Government generally, is not a
‘Bil[l] for raising Revenue’ within the meaning of the
Origination Clause.” Id. at 398. In other words, under
Munoz-Flores, the Origination Clause does apply to “a statute
that raises revenue to support Government generally.” Id.The Nebeker-Millard-Munoz-Flores principle applies
only if the law in question designates that the revenues be
used for a specific program. Importantly, the fact that a law
raises revenue to be paid into the treasury to help generally
offset the costs of a new program on the overall federal
balance sheet has never been held to exempt the law from the
20
Origination Clause. Otherwise, to take one example, a
massive income tax increase imposed for the avowed purpose
of offsetting the costs of new wartime efforts against al Qaeda
and ISIS would be exempt from the Origination Clause.
Under the panel opinion, such a tax law would not be subject
to the Origination Clause. What the panel opinion misses is
that many laws that create government programs also raise
revenues, especially given strict congressional “paygo” rules.
But those laws remain subject to the Origination Clause. As
noted above, that was the precise hypothetical Justice
O’Connor raised in Munoz-Flores. She accurately called the
Government’s contention that the Origination Clause would
not apply in such a situation “pretty extreme.”
One scholar has summarized the Court’s case law this
way: If “a statute funds the general treasury instead of a
specific program or service, it has a primary purpose of
raising revenue. Alternatively, if the statute funds a specific
activity or segment, it falls outside the scope of the Clause.”
Rebecca M. Kysar, The ‘Shell Bill’ Game: Avoidance and the
Origination Clause, 91 Wash. U. L. Rev. 659, 674 (2014).
The Origination Clause case law, therefore, “fails to support
judicial inquiry into Congress’s purpose in enacting a statute.
Rather, the Court takes as a proxy that such purpose is non-
revenue-raising when the structure of the statute earmarks
revenues to fund a program it creates.” Id. at 676.
That said, Munoz-Flores had one wrinkle that is
important to understand. The statutory scheme in Munoz-
Flores provided that any contributions to the Crime Victims
Fund in excess of $100 million a year would be transferred to
the general treasury (and thus available for general
governmental purposes), rather than redistributed to crime
victims. The Court responded in two ways. The Court first
swept that scenario aside as one that would rarely occur in
21
practice. See Munoz-Flores, 495 U.S. at 398-99. And the
Court said that, in any event, any such leftover amount would
not be “substantial” and thus was not an Origination Clause
concern:
As in Nebeker and Millard, then, the special assessment
provision was passed as part of a particular program to
provide money for that program – the Crime Victims
Fund. Although any excess was to go to the Treasury,
there is no evidence that Congress contemplated the
possibility of a substantial excess, nor did such an excess
in fact materialize. Any revenue for the general Treasury
that § 3013 creates is thus “incidenta[l]” to that
provision’s primary purpose.
Id. at 399. Munoz-Flores therefore reinforced that the
Origination Clause does apply to a bill that raises
“substantial” revenue to be “paid into the General Treasury.”
Id.
The narrow exception identified in Nebeker, Millard, and
Munoz-Flores does not encompass the Affordable Care Act.
The Affordable Care Act imposes a vast array of taxes and
raises significant amounts of revenue that are paid into the
general treasury and available for general governmental uses.
The amount of revenue the Act raises is enormous – $473
billion over 10 years. The Affordable Care Act does not
designate its tax revenues to be used only in particular
programs. Under the relevant Supreme Court precedent,
therefore, as well as the text and history of the Clause, the
Affordable Care Act is a revenue-raising bill subject to the
Origination Clause.
To be sure, some might say that the Nebeker-Millard-
Munoz-Flores line of cases is itself inconsistent with the
22
constitutional text because the laws in those cases did raise
money, even though the money was designated by law for
specific programs. The explanation for those cases seems
straightforward: Here, as in other areas of constitutional law,
the Supreme Court over time has carved out a narrow
exception to (or limitation on) the general constitutional rule.
The Court often does that in constitutional adjudication,
sometimes when there is a compelling governmental interest
in doing so, sometimes when history supports doing so, and
sometimes when the exception is minimal, to take three
common examples. See, e.g., Williams-Yulee v. Florida Bar,
No. 13-1499 (U.S. Apr. 29, 2015).
The fundamental flaw in the panel opinion is that it
transforms that heretofore narrow and rare exception to the
Origination Clause into a broad new exemption. The broad
new exemption created by the panel opinion presumably
covers bills imposing regulatory taxes and many other bills
that raise significant revenue – commonplace bills that all of
the relevant players have previously understood to be subject
to the Origination Clause. After all, if the panel opinion’s
new exemption applies to a law that raises $473 billion in
revenue, it surely will cover lots of other bills that previously
would have been thought to come within the Origination
Clause.
Put simply, using the narrow Munoz-Flores exception to
exempt the $473 billion Affordable Care Act from the
Origination Clause is a textbook example of missing the
forest for the trees.
To sum up so far: The Government and the panel opinion
have gone astray in concluding that the Affordable Care Act
is not a revenue-raising bill under the Origination Clause.
The panel opinion is wrong on that point, and wrong in a way
23
that, if followed, would degrade the House of
Representative’s constitutional prerogative to originate
revenue-raising bills. Sissel’s en banc petition says it well:
“The panel’s ‘purposive approach’ all but guts the Origination
Clause by effectively enabling the Senate to originate tax bills
that might have some broader social purpose.” Petition for
Rehearing En Banc at 2. In light of the importance of this
issue to our constitutional structure and to the individual
liberty protected by that structure, I would grant rehearing en
banc to vacate the panel opinion’s flawed and consequential
Origination Clause holding. 5
III
Although the Affordable Care Act is a law for raising
revenue and therefore was subject to the Origination Clause,
the Act did in fact originate in the House, as required by that
Clause. For that reason, I would reject Sissel’s Origination
Clause claim.
To recap: On October 8, 2009, the House passed H.R.
3590, originally called the Service Members Home
Ownership Tax Act of 2009. The Senate then amended that
5
As explained above, the Origination Clause inquiry focuses
on the entire law. If any provision of the law raises revenue for
general governmental purposes, then the Origination Clause
applies. But even if the relevant Origination Clause inquiry
focused only on a particular provision of the law, rather than on the
law as a whole, the tax on individuals who do not have insurance
(known as the individual mandate) alone was forecast to raise
massive amounts of revenue, approximately $4 billion a year by
2017. National Federation of Independent Business, 132 S. Ct. at
2594, slip op. at 33. Therefore, the individual mandate itself is a
revenue-raising provision.
24
bill, substituting the text of what became the Affordable Care
Act for the text that had been passed in the House.
Sissel contends that the Senate’s amendment substituting
the Affordable Care Act for the text of the Service Members
Home Ownership Tax Act “was not a lawful ‘amendment’ of
H.R. 3590 as required by the Origination Clause” because it
was not “‘germane to the subject matter of the [House] bill.’”
Appellant’s Br. 21 (quoting Flint v. Stone Tracy Co., 220 U.S.
107, 143 (1911)).
Sissel’s claim is unavailing. The Origination Clause
imposes no germaneness requirement on the Senate when it
amends revenue-raising bills that originated in the House.
That is apparent from the text, history, and precedent of the
Origination Clause. 6
6
H.R. 3590 modified the first-time homebuyer tax credit for
service members, increased the pre-payment amount for corporate
taxes, and increased the tax penalty for failing to file certain
corporate tax returns. H.R. 3590 (as passed by the House on
October 8, 2009). The Joint Committee on Taxation estimated that
several provisions of H.R. 3590 would raise significant revenue.
See Joint Committee on Taxation, Estimated Revenue Effects of
H.R. 3590, the “Service Members Home Ownership Tax Act of
2009” (Oct. 6, 2009). As noted above, see pages 19-20, if a bill
raises revenue, the Origination Clause applies, even if the overall
bill is deficit neutral. So it was in the original H.R. 3590. But what
happens when the original House-passed bill does not contain any
revenue-raising provisions at all? Can the Senate amend such a bill
to add revenue-raising provisions? Under the prevailing view, the
original House-passed bill must itself contain revenue-raising
provisions in order for the Senate to permissibly add revenue-
raising provisions through its amendment process. See James V.
Saturno, Congressional Research Service, The Origination Clause
25
To begin with, the germaneness requirement that Sissel
urges is inconsistent with the text of the Origination Clause.
The Origination Clause permits the Senate to “propose or
concur with Amendments as on other Bills.” U.S. Const. art.
I, § 7, cl. 1 (emphasis added). The text of the Origination
Clause therefore grants the Senate as much authority to
amend revenue bills as it grants the Senate to amend other
bills. There is no general germaneness requirement when the
Senate amends other House bills. It follows that there is no
germaneness requirement when the Senate amends revenue
bills. “As on other Bills” means “As on other Bills.”
The language permitting Senate amendment of revenue
bills was critical, moreover, to the Constitutional Convention.
In early English practice, revenue bills had to originate in the
House of Commons, and the House of Lords could not amend
those revenue bills. By contrast, after Independence in 1776,
several of the new American States departed from English
practice by allowing the upper houses of their states’
legislatures to amend revenue bills. The Constitutional
Convention followed the latter model and allowed Senate
amendments to House-originated revenue bills. See 1 David
K. Watson, The Constitution of the United States: Its History
Application and Construction 342-43 (1910); S. Rep. No. 42-
146, at 3 (1872) (contrasting the “strict[]” amendment
of the U.S. Constitution: Interpretation and Enforcement, at 6
(March 15, 2011). But this case does not require a definitive
judicial answer to that question because the original House bill here
in fact contained revenue-raising provisions. One related note: In
practice, Congress seems to broadly apply the Origination Clause to
all revenue-affecting bills because of the potential difficulty of
determining whether a tax bill raises or reduces revenues. Id. at 4.
But the House bill here was clearly revenue-raising, so we need not
explore that issue further.
26
limitations on the House of Lords with the expansive
amendment power “our fathers provided” to the Senate).
The language permitting broad Senate amendments was
not an accident but instead was a deliberate and considered
decision at Philadelphia. The delegates initially considered
language that would not have allowed Senate amendment of
revenue bills. 1 The Records of the Federal Convention of
1787, at 524-25 (July 5, 1787) (Max Farrand ed., 1911). But
after debate, the delegates provided for a broad Senate
amendment power. One delegate, Elbridge Gerry, later
lamented that the broad Senate amendment power weakened
the force of the Clause. 3 id. at 265. During the Virginia
ratification debates, William Grayson similarly complained
that the Senate’s amendment power constituted a de facto
power to originate revenue bills because it would allow the
Senate to delete all the language of a House bill and substitute
entirely new language. 3 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 377
(Jonathan Elliot ed., 1881). No doubt Gerry and Grayson
were right to perceive that the Senate’s broad amendment
power would weaken the force of the Clause. But courts must
respect the Constitution’s text. And the relevant text gives
the Senate a broad amendment power.
Consistent with the Constitution’s text, moreover,
Congress’s longstanding practice has been to permit Senate
amendments of exactly the kind at issue here, in which the
Senate essentially guts the House bill and replaces the House
language with Senate language. See Thomas Jefferson, A
Manual of Parliamentary Practice, For the Use of the Senate
of the United States § 35, at 107 (Davis & Force 1820) (1801)
(“Amendments may be made so as totally to alter the nature
of the proposition,” and entirely new propositions can be
“ingrafted by way of amendment on the words ‘Be it
27
enacted.’”); S. Rep. No. 42-146, at 3 (When “a bill for raising
revenue has originated in the House, no limitation is placed
by the Constitution upon the power of the Senate to amend it .
. . . The exclusive prerogative of the House of
Representatives in relation to such bills is simply to originate
them.”).
That historical practice has continued to the present day.
There are many modern examples of so-called “gut and
replace” legislation. See, e.g., American Taxpayer Relief Act
of 2012, Pub. L. No. 112-240, 126 Stat. 2313 (2013);
Emergency Economic Stabilization Act of 2008, Pub. L. No.
110-343, 122 Stat. 3765 (2008); Tax Reform Act of 1986,
Pub. L. No. 99-514, 100 Stat. 2085 (1986).
That historical practice matters. See National Labor
Relations Board v. Noel Canning, 134 S. Ct. 2550, 2559, slip
op. at 7 (2014) (historical practice “‘is entitled to great regard
in determining the true construction of a constitutional
provision the phraseology of which is in any respect of
doubtful meaning’”) (quoting The Pocket Veto Case, 279 U.S.
655, 689 (1929)).
Most importantly for us as a lower court, the relevant
Supreme Court case law forecloses the germaneness
requirement advanced by Sissel. In Rainey v. United States,
232 U.S. 310 (1914), the Supreme Court concluded that there
was no germaneness requirement on Senate amendments to
revenue bills. In that case, the Senate had amended a House-
originated tariff bill to include a new tax on foreign-made
yachts. Id. at 315-17. The Court stated: “Having become an
enrolled and duly authenticated Act of Congress, it is not for
28
this Court to determine whether the amendment was or was
not outside the purposes of the original bill.” Id. at 317. 7
Rainey is squarely on point and has never been overruled.
That decision resolves the germaneness issue in this case in
favor of the Government.
To overcome Rainey, Sissel cites a pre-Rainey case, Flint
v. Stone Tracy Co., 220 U.S. 107, 143 (1911). In upholding
the law there against an Origination Clause challenge, Flint
noted that the amendment enacted in the Senate “was
germane to the subject-matter of the bill and not beyond the
power of the Senate to propose.” Id. But the Flint Court did
not draw any legal conclusions from that description of the
bill. Therefore, Flint may not properly be read to impose a
judicially enforceable germaneness requirement, especially in
light of Rainey’s later rejection of just such a requirement.
In short, notwithstanding the Senate’s amendment, the
Affordable Care Act originated in the House.
IV
Before closing, a few final comments:
Some understandably say that allowing the Senate to
exercise such a broad amendment power over revenue-raising
7
If Senate rules imposed a germaneness requirement for all
amendments to legislation, would such a germaneness requirement
then be enforceable under the Origination Clause, notwithstanding
Rainey, given that the Clause says that the Senate may amend
revenue bills “as on other Bills”? We need not confront that
question here because there is no such Senate rule imposing a
general germaneness requirement for amendments.
29
bills greatly diminishes the force of the Clause and makes the
Origination Clause unimportant. There are two responses to
that observation. First, as judges, we have no choice but to
respect the text, history, and precedent of the Clause, which
plainly grant the Senate a broad amendment power. Courts
do not have authority to redesign the constitutional structure
as we might like it. To make such structural changes, there is
a constitutional amendment process – one that has been
utilized to make major changes to the original design. Cf.
U.S. Const. amends. 12, 14, 17, 20, 22, 25; see generally
Arizona State Legislature v. Arizona Independent
Redistricting Commission, No. 13-1314 (U.S. June 29, 2015)
(Roberts, C.J., dissenting); Akhil Reed Amar, America’s
Constitution: A Biography 285-99, 313-463 (2005). Second,
although the Senate’s amendment power no doubt
significantly weakens the potential force of the House’s
origination power, the House’s first-mover authority still
gives it substantial control over tax legislation, as Madison
explained and as history has borne out. In the real world, the
House’s exclusive origination power matters. See generally
Adrian Vermeule, The Constitutional Law of Congressional
Procedure, 71 U. Chi. L. Rev. 361, 424-25 (2004). To say
that the House’s origination power is less than it could have
been is not to say that the House’s origination power is
meaningless.
Some might respond, however, that even accepting the
general importance of the Origination Clause, the panel
opinion is no big deal because the House of Representatives
has the power to protect itself from the consequences. It is
true that the House may go beyond the text of the Origination
Clause and, as a matter of its own rulemaking powers, require
even non-revenue bills to originate in the House – or else not
pass the bills. Article I, Section 5, Clause 2 of the
Constitution guarantees that “Each House may determine the
30
Rules of its Proceedings.” The House and Senate of course
may not disregard the Origination Clause or subtract from its
requirements. But as part of their own rules or practices, they
may insist on further requirements beyond what the
Origination Clause demands.
But there are at least three problems with relying on the
House’s self-help power as a basis for downplaying the
consequences of the panel opinion.
First, that suggestion is almost akin to saying that the
Origination Clause is a political question that Congress can
sort out without judicial intrusion. But the Supreme Court
concluded otherwise in Munoz-Flores. See United States v.
Munoz-Flores, 495 U.S. 385, 396 (1990). There, as the Court
noted, the Government argued “that the House has the power
to protect its institutional interests by refusing to pass a bill if
it believes that the Origination Clause has been violated.” Id.
at 392. The Court rejected the Government’s political
question argument. The Court explained that judicial policing
of the Origination Clause furthers individual liberty by
safeguarding the people from excessive taxation. See id. at
394. In separation of powers cases, the Court does not just
defer to the political branches. See generally Zivotofsky v.
Kerry, No. 13-628 (U.S. June 8, 2015); Marbury v. Madison,
5 U.S. 137 (1803). It is not acceptable for courts to outsource
preservation of the constitutional structure to the political
branches.
Second, getting it right as a court is important because
the House (now or in the future) could just roll over and
acquiesce to the flawed panel opinion. But wouldn’t such
House acquiescence be acceptable from a separation of
powers perspective? Not to the Supreme Court. The Court
has made clear that even acquiescence by a political branch in
31
its own unconstitutionally diminished power still does not
justify judicial tolerance of a separation of powers violation.
Landmark cases such as Clinton v. City of New York, 524
U.S. 417 (1998), and Free Enterprise Fund v. Public
Company Accounting Oversight Board, 561 U.S. 477 (2010),
illustrate the point. As those cases explain, the constitutional
structure is not merely a matter of etiquette but protects
individual liberty. In justiciable cases, courts must enforce
the Constitution’s structural protections even when the
affected Branch does not. Cf. Free Enterprise Fund, 561 U.S.
at 497 (“Perhaps an individual President might find
advantages in tying his own hands. But the separation of
powers does not depend on the views of individual Presidents,
nor on whether the encroached-upon branch approves the
encroachment.”) (citation and internal quotation marks
omitted).
Third, judicial decisions – such as the panel opinion in
this case – commonly establish a baseline that affects
congressional rules, negotiations, and ultimately legislative
results, as those who have labored on the Hill can readily
attest. So a flawed judicial decision will often influence the
give-and-take of congressional practice. To say that the
House can work around the flawed panel opinion is to ignore
the reality of how a flawed judicial decision can affect the
negotiations by which that corrective process occurs.
* * *
To read my opinion so far, you might wonder whether I
think the world will end not in fire, or in ice, or in a
bankruptcy court, but in an Origination Clause violation. 8 I
8
See Wellness International Network, Ltd. v. Sharif, No. 13-
935, slip op. at 17 (U.S. May 26, 2015) (“To hear the principal
32
of course realize there are more important constitutional
issues. This case is not Marbury v. Madison redux. But the
case is still quite important.
Although the panel opinion reached the correct bottom-
line result, the panel opinion’s interpretation of the
Origination Clause is incorrect, in my respectful view. The
panel opinion alters the longstanding balance of power
between the House and Senate, and ultimately affects
individual liberty. We should correct the panel opinion’s
error now rather than let it linger and metastasize. I would
grant rehearing en banc, vacate the panel opinion, and rule for
the Government on the ground that the Affordable Care Act
originated in the House and thereby complied with the
Origination Clause.
dissent tell it, the world will end not in fire, or ice, but in a
bankruptcy court.”).