The Origination Clause and the problem of “double deference”

March 12, 2014

On Monday, Jonathan reported that the Court of Appeals for the D.C Circuit had side-stepped a challenge to the grossly misnamed Affordable Care Act (ACA) based on the Origination Clause in Art. I, sec. 7 that requires that:

“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.”

As we all know, the ACA originated in the Senate not the House,  which had already passed its own entirely different bill. The reason Democrats pushed the Senate bill through the House was to avoid a House-Senate conference committee to hammer out a final bill, since the election of Scott Brown to replace Edward Kennedy in the Senate deprived Senate Democrats of their 60-vote filibuster-proof majority. Thus the choice became: adopt the Senate bill in the House or negotiate with Senate Republicans, and Democrat chose the former (with some minor adjustments done in a separate bill enacted through the “reconciliation” process that required only 51 votes in the Senate).

Given that the ACA contained numerous revenue raising provisions, how could it originate in the Senate? Senate Democrats utilized what is called a “shell bill” procedure taking an ostensible revenue bill passed in the House, “amending” it by deleting its title and every single word, retaining only the House bill number, and then inserting the 2700 pages of the Patient Protection and Affordable Care Act. Is this constitutional?

The Supreme Court has never passed upon the constitutionality of using a shell bill to satisfy the Origination Clause. Although it has adopted what is called the Enrolled Bill rule that assumes that the procedures of the House and Senate were followed — for example, whatever language is formally “enrolled” by the House and Senate is the language of the law despite previous textual disparities — here the issue is not whether the “shell bill” procedure was followed; it is whether the “shell bill” procedure itself conforms to the requirement Art I, Sec 7.  Does it?

Like most, Jonathan predicts that the courts will ultimately defer to Congress on this question, and the smart money is always that Congress will defer to Congress. That is the problem of “double deference.” On constitutional questions, the courts defer to Congress’s assessment that its acts are constitutional. Then when you ask members of Congress whether what they are doing is constitutional, they respond by saying, “that is the job of the courts” or, even more commonly, they predict that “the courts will uphold us.” Of course, if the courts defer constitutional judgments to Congress, and Congress defers constitutional judgments to the courts, then no one is considering the Constitution itself. Double deference is a shell game, not to be confused with a shell bill.

When law professors confine their judgment of constitutionality to predicting what the courts will do, we then have a “triple deference” situation, with law professors deferring to courts who defer to Congress who defers to the courts. Better that law professors generally focus on whether a constitutional argument has merit rather than just predicting outcomes. A sole focus on predictions was part of what led law professor astray in assessing the viability of the constitutional challenges to the individual insurance mandate in the ACA. (For other factors, see here.) Moreover, a robust discussion of the merits of a legal issue is of greater service to the courts, who don’t need to be told by law professors what they will or will not do. They will just do it.

So, does the Origination Clause challenge that is still pending in another case have merit? First, notice that the origination clause specifies that “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.” This is the language of a mandatory constitutional requirement, not a deferral by the text to the judgment of Congress, as in other clauses. But was the ACA a bill “for raising Revenue” and did it actually “originate in the House of Representatives”?

The answer to the first question quickly becomes too complicated for a blog post, so let me merely say that, despite the litigation stance now taken by the government, the Senate clearly believed that the bill was “for raising Revenue.” Why else would it use the “shell bill” maneuver rather than just passing the ACA as a Senate bill? The very fact that it used a “shell bill” was a clear sign that Senate Democrats believed that the bill was “for raising revenue.”

So unless it succumbs to the doctrine of “double deference,” a court must address whether the mere preservation of a House bill number suffices to make the Senate bill an “amendment” to a House bill. Note well: if the use of “shell bills” are held to be sufficient to satisfy Art. I, sec 7, then the Origination Clause ceases entirely to operate and becomes part of what I call the “lost Constitution.” No way did the Patient Protection and Affordable Care Act originate in the House before it was amended in the Senate. If judges cannot make this assessment, then they might as well hang up their robes.

There is no need in this case to decide how much of a House bill must be retained before we don’t consider what the Senate did to have been an “amendment.” At least some is a good enough answer for now. Nor does the fact that the House failed to defend their prerogatives change the analysis. As courts have long held, the power-limiting requirements of the Constitution are there to protect the People, not members of Congress. Some partisan faction putting a legislative victory over the requirements of the Constitution is what the Constitution is there to stop, and why we pay money for an independent judiciary to enforce it.

Judges too are the agents of the sovereign People;  and the sovereign People are not the same as a majority of the 535 persons who comprise Congress. On this question, the courts should not defer to Congress, and neither should law professors defer to the courts. Revenue bills “shall” originate in the House of Representatives, but the Affordable Care Act did not. As constitutional questions go, this is about as easy as it gets.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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