Tax Analysts Blog

Republicans Shouldn’t Pin Their Hopes on The Origination Clause

Posted on Dec 19, 2012

In negotiations over the fiscal cliff, President Obama holds the stronger hand, thanks to the oddities of current law (with its myriad expiring provisions) and the electoral misfortunes of the GOP (including Mitt Romney’s defeat, but also the party’s failures in the Senate).

But Republicans aren't completely lacking in leverage, either. After all, they control the House of Representatives. But contrary to the assertions of some hopeful Republicans, that control does not imbue the party with any special constitutional advantage in the battle over tax hikes and spending cuts.

According to a recent story in The Hill, some GOP strategists have been hoping to exploit the Constitution’s Origination Clause, which requires that “all bills for raising revenue shall originate in the House of Representatives.” Specifically, these Republicans have been raising doubts about the viability of a Senate bill that would extend tax cuts for the “middle class” but end them for the rich. Presumably, since the bill originated in the Senate, it violates Article 1, Section 7 of the Constitution.

Maybe so, but Democrats are not exactly cowed by that possibility. “If any Republicans think they can block an extension of middle-class tax cuts on a technicality, that’s a loser argument,” one Democrat told The Hill.

If Democrats are unimpressed by the Origination Clause, they might be forgiven. In practice, the Origination Clause is more a nuisance than an obstacle to tax-happy senators.

Erik M. Jensen of Case Western Reserve University lamented this fact in an article for the Heritage Foundation: "Regrettably, this clause has had little effect in practice,” he wrote, “as the Senate has construed its power to amend so broadly as to replace the entire text of revenue bills that had originated in the House."

In other words, Senators can sidestep the Origination Clause by dusting off an existing House bill, stripping out its content, and inserting their own preferred language. The result? A Senate bill with a House pedigree.

This kind of circumvention was baked in to the Origination Clause from the get-go. During the Constitutional Convention, Eldridge Gerry of Massachusetts had supported a more robust origination clause that would have required all money bills – including both tax and spending legislation – to originate in the House. “Taxation and representation are strongly associated in the minds of the people,” he said, “and they will not agree that any but their immediate representatives shall meddle with their purses."

Gerry lost the battle over spending, and then went on to lose the even more crucial battle against Senate amendment power. Gerry worried that giving the upper chamber power to amend revenue bills would strip the Origination Clause of real meaning. And he was right.

Today, the Origination Clause is quite nearly a dead letter. But according to Jensen, it’s only mostly dead, not completely dead. In its most recent Origination Clause case, the Supreme Court left open the possibility that a plaintiff with standing might be able to pursue a claim that a revenue law had improperly originated in the Senate.

But it’s been 20 years since the Court offered up that possibility, and we’re still waiting for the next, pivotal case.

And I, for one, am not holding my breath for it.

Read Comments (1)

Karlin HighDec 20, 2012

From Iowa State University's Center For Agricultural Law & Taxation, December
2012 e-Newsletter:

"In a second case challenging the constitutionality of the health care act
(Sissel v. United States Department of Health and Human Services, et al., No.
1:10-cv-01263(BAH)(D. D.C. Sept. 11, 2012)) involves a constitutional challenge
to the law under the Constitution’s Origination Clause. On September 11, the
trial court in D.C. ruled that the case could go forward. The basic claim is
that because the U.S. Supreme Court has ruled that the mandate provision is a
tax that must be paid for not purchasing health insurance, the provision is a
revenue provision that must originate in the House. Instead, the health care
law started in the Senate as a “shell bill” before it went to the House. This
issue remains open, so we will keep our eyes on this one."

Probably still don't hold your breath, though.

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