Bench Memos

Andy McCarthy Misinterprets the Origination Clause

Over the weekend, Andy McCarthy published a piece on the NRO homepage titled “How to Constitutionally Fund the Government.”  He argued that because the House of Representatives chose not to provide funds for the implementation of Obamacare, the Senate was constitutionally powerless to add such funding back into the continuing resolution when considering the bill.  Why does Andy say this?

He writes:

The Constitution expressly provides (in Article I, Section 7): “All bills for raising Revenue shall originate in the House of Representatives.” This Origination Clause applies to all spending legislation. As the clause elaborates, when the subject at issue involves spending public money, the Senate “may propose or concur with Amendments as on other Bills”; but it may not instigate spending. The Senate can tinker within the spending limits set by the House, but it must live within those limits. The continuing resolution to fund the government, which is the legislation at issue in the current controversy, is no exception. The Senate is not permitted to originate spending, as Majority Leader Harry Reid did on Friday, . . .

I don’t see how Andy can quote the clause, which refers to “All bills for raising Revenue,” and immediately thereafter say that it “applies to all spending legislation.”  Its language, its history, and its original understanding say nothing of the kind.  Andy relies in part on James Madison in Federalist No. 58.  But that’s a weak reed on which to lean.  Madison says that the House “alone can propose the supplies requisite for the support of government.”  At best (for Andy’s argument) this is ambiguous, but there is no reason—and there is no evidence anywhere else in sources relevant to the founding—to lead us to conclude that by “propose the supplies” Madison meant “originate spending bills.”  He must have meant at least “originate tax bills” (that much is clear from the text of the clause) but there is no reason to say that he meant more than that.

Joseph Story considered this clause in his Commentaries on the Constitution in 1833, and here’s what he said (sec. 877): “the history of the origin of the power . . . 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.”  Much less did Story think it had anything to do with spending bills of any kind—a matter that never even merits a moment’s notice in his analysis.

A final indication of the categorical error Andy makes regarding the origination clause is found in the periodically updated congressional publication How Our Laws Are Made, written by the parliamentarian of the House of Representatives.  In the section on introducing a bill, in the most recent edition (2007), written by parliamentarian John V. Sullivan, we find this (my emphasis):

Bills may originate in either the House of Representatives or the Senate with one notable exception. Article I, Section 7, of the Constitution provides that all bills for raising revenue shall originate in the House of Representatives but that the Senate may propose, or concur with, amendments. By tradition, general appropriation bills also originate in the House of Representatives.

Note that qualification in the final sentence.  When I was studying the Congress in grad school many years ago, and in the numerous times I have taught courses on it since then, I encountered from time to time references to this tradition that the Senate would let the House go first in the appropriations process as well as on tax legislation.  But the former, unlike the latter, was by no means ever understood as being required by the Constitution.  The traditional appropriations process has been broken for a long time—and thanks to Harry Reid seems to be beyond repair, so that now we lurch from one continuing resolution to the next, with no separate subject-matter appropriations bills—so the revival of this old custom looks fairly doomed.  But custom is all it ever was.  Even the House parliamentarian says so, and the chamber that employs him has a vested interest in asserting every one of its constitutional prerogatives with the utmost vigor.  Originating spending bills just doesn’t happen to be one of those constitutional prerogatives.

But suppose, for the sake of Andy’s argument, that the origination clause did speak to spending as well as tax bills.  The continuing resolution for funding the government would be all the “origination” for which the House needed to be responsible.  The House’s passage of any species of bill cannot control the ability of the Senate to add to or subtract from it, by way of amendment to the original bill.  Every authority on the accepted meaning of the origination clause—that is, its proper application to tax bills—says that the Senate may add wholly new provisions concerning taxation, not contemplated by the House in its original bill, as the Senate sees fit.  The necessity of both houses passing the very same legislation, as well as the requirement that tax bills cannot get off the ground at all without starting in the House, is all the security the Constitution provides against Senate shenanigans.

Andy argues that when a federal program is zero-funded by the House, the Senate is powerless to amend an appropriations bill to revive the program with any funds.  This is a wholly new constitutional theory; I have certainly never encountered it.  Even for tax bills–where the origination clause does properly apply–Andy’s argument would make no sense.  If, let us say, the House passed a tariff bill saying that there would be a $10 tariff on each ton of peaches imported from Chile, and the Senate wanted to add the language “and plums” to the provision taxing imported Chilean peaches, Andy’s argument would hold such an amendment by the Senate to be unconstitutional.  That is a novel and insupportable reading of the clause, even when it is properly understood as confined to tax legislation.

As for spending legislation, Andy’s argument, I’m afraid, has no purchase at all, from its very first premise.



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