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Yet Again on the Origination Clause



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In a new article on the NRO homepage yesterday morning, Andy McCarthy responded to my critique (and to my follow-up response to Mark Steyn’s intervention) of his original article from last Saturday (phew! got that?), in which he argued that the origination clause of Article I, section 7 does two things: A) it applies to appropriations or spending measures as well as tax legislation; and B) it poses a constitutional barrier to the Senate funding Obamacare inasmuch as the House, in originating the continuing resolution for funding the government, omitted any spending on Obamacare.

As I argued in both my posts, Brother McCarthy is wrong on both counts.  To deal with claim A: the clause begins by saying that “All Bills for raising Revenue shall originate in the House of Representatives,” and appropriations or spending bills fall outside the category “bills for raising revenue.”  They don’t raise revenue; they spend it.

As for claim B, the clause continues after a semicolon: “but the Senate may propose or concur with Amendments as on other Bills.”  So even if Andy were right and I wrong about claim A—that is, if the origination clause encompassed an entire category of “money bills” that included taxing and spending legislation—it would nevertheless be constitutionally permissible for the Senate, when it “goes second” on consideration of a bill, to add new spending by way of amendment.  A program entirely unfunded by a House-originated bill can legitimately be funded by the Senate’s version, with whatever final outcome the two houses can come to terms about (and get a president to sign).

In his latest article, Andy has omitted any further defense of claim B, and has instead dug in on claim A, that a larger genus of “money bills” that includes the two species of taxes and spending was intended by the clause to be exclusively the province of the House to originate.  Andy is right to note that at the Philadelphia convention, there are repeated references to “money bills” nearly every time some draft version of the clause is under consideration.  (The course of those debates can be seen here.)  But the view that all tax and appropriations bills must originate in the House, and the further view that the Senate should not even be able to amend them, were distinctly in the minority at Philadelphia.  Elbridge Gerry, who is Andy’s hero in this tale, kept banging on these issues every chance he got for weeks on end, and all he got was one quarter of his objective.  That is, he got no limit on the Senate’s power to amend, and got only tax bills and not spending bills into the text of the clause finally written.

Not only does the parliamentarian of the House of Representatives itself take my view of the matter, so does one of the sources on which Andy relies in his latest.  (I leave aside the Annenberg Institute for Civics, a carelessly and anonymously written source, as no help at all.)  Andy quotes the opening line of the entry on the origination clause in the Heritage Guide to the Constitution, by Professor Erik Jensen of Case Western’s law school, but he should have read further.  Jensen writes:

The final version of the clause was much weaker than the form proposed by Elbridge Gerry of Massachusetts, which would have required all “money bills” (including appropriations) to originate in the House and would have given the Senate no power to amend. Gerry feared that the Senate would become an aristocratic body because of its small size, its selection by legislatures rather than by election, and its six-year term of office. “It was a maxim,” he said, “that the people ought to hold the purse-strings.”

The strongest proponents of national power opposed the clause in any form. As James Wilson of Pennsylvania explained at the Convention, “If both branches were to say yes or no, it was of little consequence which should say yes or no first.” What survived the contentious debates was closer to Wilson’s vision than to Gerry’s. The clause was restricted to bills for raising revenue, and the Senate was given the amendment power (which, Gerry thought, gutted the provision of any real effect).

It is noteworthy that Elbridge Gerry refused to sign the Constitution at the close of the convention (one of just three delegates present to the end who so declined).  I doubt the origination clause’s “gutting” is solely what pushed him over into the refusenik camp.  But he lost a lot of arguments, and this was one of them.  It won’t do for Andy to claim that he won.

 



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