Litigation Regarding The Origination Clause

and the Affordable Care Act

 

"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

N.B. This part of the U.S. Constitution has no comma as in some state constitutions, so quote carefully.

 

I. Pertinent U.S. Supreme Court cases with short excerpts (back to top)

A. United States v. Norton, 91 US 566 (1876)

"The Constitution of the United States, art. 1, sect. 7, provides that 'all bills for raising revenue shall originate in the House of Representatives.'  The construction of this limitation is practically well settled by the uniform action of Congress. According to that construction, 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 incidentally create revenue.' Story on the Const., sect. 880.  'Bills for raising revenue' when enacted into laws, become revenue laws."

B. United States v. Hill, 123 US 681 (1887)

"[T]he term 'revenue law,' when used in connection with the jurisdiction of the courts of the United States, means a law imposing duties on imports or tonnage, or a law providing in terms for revenue; that is to say, a law which is directly traceable to the power granted to Congress by § 8, Art. I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'"

C. Twin City Bank v. Nebeker, 167 US 196 (1897)

"The tax was a means for effectually accomplishing the great object of giving to the people a currency that would rest, primarily, upon the honor of the United States, and be available in every part of the country. There was no purpose by the act or by any of its provisions to raise revenue to be applied in meeting the expenses or obligations of the Government."

D. Lumberman's Bank v. Huston, 167 US 203 (1897)

"The most favorable view of this case for the plaintiff in error is to regard it as pesenting the same question that was determined in Twin City National Bank v. Nebeker, just decided.  For the reasons stated in the opinion in that case the judgment is Affirmed."

E. Millard v. Roberts, 202 US 429 (1906)

"This language [in Twin City Bank v. Nebeker] is applicable to the acts of Congress in the case at bar. Whatever taxes are imposed are but means to the purposes provided by the act."

F. Flint v. Stone Tracy Co.,220 U.S. 107 (1911)
"The bill having properly originated in the House, we perceive no reason in the constitutional provision relied upon why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject-matter of the bill and not beyond the power of the Senate to propose. In thus deciding we do not wish to be regarded as holding that the journals of the House and Senate may be examined to invalidate an act which has been passed and signed by the presiding officers of the House and Senate and approved by the President and duly deposited with the State Department."

G. Rainey v. United States, 232 U.S. 310 (1914)

"It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated Act of Congress, it is not for this Court to determine whether the amendment was or was not outside the purposes of the original bill."

H. Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989)

"[T]he Origination Clause...embod[ies] the Framers' concern that persons elected directly by the people have initial responsibility over taxation (until the ratification of the Seventeenth Amendment in 1913, Senators were chosen by State Legislatures, see Art. I, §3)...."

I. United States v. Sperry Corp., 493 U.S. 52 (1989)

"We do not reach the merits of this contention. In another case to be argued this Term, we have directed the parties to brief whether claims based on the Origination Clause present nonjusticiable political questions. See United States v. Munoz-Flores, cert. granted...."

J. United States v. Munoz-Flores, 495 U.S. 385 (1990)

"We conclude initially that this case does not present a political question and therefore reject the Government's argument that the case is not justiciable. On the merits, we hold that the special assessment statute does not violate the Origination Clause because it is not a 'Bil[l] for raising Revenue'.... A law passed in violation of the Origination Clause would thus be no more immune from judicial scrutiny because it was passed by both Houses and signed by the President than would be a law passed in violation of the First Amendment."

K. NFIB v. Sebelius, 567 U.S. 1 (2012) (dissenting opinion)

"Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, § 7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off."
 

II. Selected federal appeals court cases (back to top)

A. United States ex rel. Michels v. James, 26 Fed. Cas. 577 (C.C.S.D.NY. 1875) (No. 15,464)

"Certain legislative measures are unmistakably bills for raising revenue. These impose taxes upon the people, either directly or indirectly, or lay duties, imposts or excises, for the use of the government, and give to the persons from whom the money is exacted no equivalent in return, unless in the enjoyment, in common with the rest of the citizens of the benefit of good government. It is this feature which characterizes bills for raising revenue. They draw money from the citizen; they give no direct equivalent in return."

B. Hubbard v. Lowe, 226 F. 135 (S.D.N.Y. 1915), appeal dismissed mem., 242 U.S. 654 (1916)

N.B. Hubbard is the only case where a federal statute was struck down as violative of the Origination Clause.

"This familiar paradox results from McCray v. United States, 195. U.S. 27…and the doctrine that the motive or purpose of Congress in adopting a statute cannot be judicially inquired into….It is immaterial what was the intent behind the statute; it is enough that the tax was laid, and the probability or desirability of collecting any taxes is beside the issue….The Cotton Futures Act is not, and never was, a law of the United States.  It is one of those legislative projects which, to be a law, must originate in the lower house."

C. Armstrong v. United States, 759 F.2d 1378 (9th Cir. 1985)

"The term 'Bills for raising Revenue' does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes....The bill that ultimately became TEFRA 'originated' in the House as revenue legislation, and the Senate's amendments, while far-reaching and extensive, were 'germane to the subject-matter of the bill [reform of the income tax system], and not beyond the power of the Senate to propose.'"

 

III. Origination Clause litigation regarding the Affordable Care Act (ACA) (back to top)

A. Sissel v. DHS

Pacific Legal Foundation case page (current)

B. Liberty University v. Lew

Plaintiff's Filing (Feb-27-2013)

Govt. Filing (Apr-4-2013)

Plaintiff’s Filing (Apr-24-2013)

Fourth Circuit Decision (Jul-11-2013)

C. Hotze v. Sebelius

Documents regarding case (current)
D. American Physicians & Surgeons v. Sebelius

Documents regarding case (current)

 

 

 

IV. Miscellaneous (back to top)

Barnett, Randy.  "New Obamacare Challenge: The Origination Clause", Volokh Conspiracy (September 13, 2012).
Balkin, Jack.  "The Right Strikes Back: A New Legal Challenge for Obamacare", The Atlantic (September 17, 2012).
Schmitz, Joseph.  "Bury ObamaCare in Ash Heap of History", NewsMax (August 29, 2013).
Jensen, Erik.  "Origination Clause", The Heritage Guide to the Constitution (current).
Wikipedia article about the Origination Clause (current).
 


 

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