The Framers wanted to endow the House with the power of the purse, but did not want to open the door to such shenanigans. Thus the fleeting focus on “incidental” levies: The debates fleshed out the principle that the Origination Clause was intended to apply to bills the patent purpose of which involved public money. That hardly meant, as Story inferred, that the Clause would only ever apply to “bills to levy taxes in the strict sense.” It meant that, in the peculiar situation of ordinary legislation that only incidentally raised money, the Senate would not be impeded by the clause from either initiating or amending such a bill.
I would also note that constricting the House’s Origination Clause power to taxation would render it a nullity — which, admittedly, is how modern Washington treats it. If the Senate is freely permitted to originate appropriations that increase our already olympian debt through more borrowing, it is effectively originating taxation every bit as much as if it forthrightly branded as “taxation” the bills thus initiated.
Two final points. First, I have no illusions that, at this late hour, the Senate would passively accept the premise that the House holds the full power of the purse, or that somewhere down the road the courts would enforce this principle. But each component of our government has the power and, I’d submit, the duty to construe its own constitutional authority in good faith. I am saying that if Republicans truly want to make good on a pledge to reinvigorate originalism, the House should be guided by Madison in its dealings with the Senate. That would make for some contentious times (similar to what we are witnessing now), but so what? Our system is based on the expectation that officials will vigorously exercise their quite intentionally separate and competing powers. The resolution of the inevitable collisions should be more a political process guided by constitutional principles than a legal process determined by courts. The former is how compromise and consensus properly emerge.
Second, there is some very interesting Origination Clause litigation ongoing against Obamacare, and it involves a construction of the clause that both Matt and I would probably find legitimate. Representative Trent Franks (R., Ariz.) and other House conservatives claim that the so-called Affordable Care Act violates the clause because it was a tax-hiking bill (as the Supreme Court has held) that originated in the Senate.
There will be much more to say about this legal challenge. I believe it will be less abstract and less contentious than our debate over the theoretical extent to which the Origination Clause reposes in the House the power of the purse.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.