Bench Memos

Cantor and McCarthy Join Judicial Education Project Amicus Brief in Origination Clause Case

The Judicial Education Project filed a brief last Thursday in Hotze v. Sebelius, a lawsuit challenging the Affordable Care Act under the Constitution’s Origination Clause. The Origination Clause requires that “all bills for raising revenue shall originate in the House of Representatives.”

The brief is well worth reading in its own right, both because it is a masterpiece and because it was joined by House majority leader Eric Cantor and House majority whip Kevin McCarthy. Some highlights (citations and footnotes omitted):

The Senate, recognizing that it is constitutionally forbidden from originating tax increases, did so by seizing upon a six-page House Bill (H.R. 3590) that provided tax credits for soldiers. The Senate took that bill, deleted every letter after the enacting clause, and replaced it with 2000 pages of unrelated tax increases, fundamental transformations of healthcare and health insurance, and various other legislative knick-knacks. But rather than simply call this new piece of legislation what it was—a Senate bill—the Senate claimed to have made only some “Amendments” to the House bill. If the Senate’s wholesale replacement of a short tax-credit-bill with massive, unrelated tax-increases does not violate the Origination Clause, then nothing does. This is not a slippery slope; it is the bottom of the puddle at the bottom of the hill.

Also:

The Origination Clause requires that bills for raising revenue “shall originate in the House,” but also states that “the Senate may propose or concur with Amendments as on other Bills.” The Clause makes sense—and has substantive bite—only if the amendment exception does not devour the origination rule. James Madison had it right when he told George Washington that those protesting the Senate’s power to amend “bills for raising revenue” were exaggerating its importance, because that power was limited to “the paltry right of the Senate to propose alterations in money bills.” The power to “amend” legislation does not include the power to replace tax-cut legislation with completely unrelated tax-increasing legislation. This is clear from the text and history of the Clause, as well as from judicial decisions.

Read the whole thing here.

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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