Filed under: All Postings, The Founding, supreme court
Does that give him authority to utilize our armed forces for a purely non-military purpose like addressing the Ebola outbreak in Africa?
The Denver Post thinks so, editorializing that Obama’s decision is “fully justified.” But the Post doesn’t tackle the constitutional issues.
The Ebola mission, according to the Associated Press, is “to supply medical and logistical support to overwhelmed local health care systems and to boost the number of beds needed to isolate and treat victims of the epidemic.” Our troops will be doing things like handing out home health kits to Africans and building health clinics.
Note that this is different from the armed forces carrying on humanitarian actions as an incident to military operations. When you are fighting an enemy abroad, it makes sense to build hospitals to retain local good will or to care for those injured a result of war.
But we are not engaged in military operations in Africa.
So what does the Constitution have to say?
The Constitution contains no clause specifically prohibiting the president from using the armed forces this way. You might think that such a limit would be inherent in the Constitution’s use of the word “Army.” That is, you might think the word “Army” would be limited to an exclusively military organization. But founding-era dictionaries do not impose that restriction on the term “Army.” As those dictionaries define the word, an “Army” is merely a large number of armed men subject to central leadership. (This, by the way, is one reason the U.S. Air Force is constitutional, even though the Constitution doesn’t refer to it. The Air Force fits within the constitutional meaning of “Army.” Indeed, it was originally the Army Air Service and later the Army Air Corps.)
The operations in Africa sound noble. But the old legal saying is: Hard cases make bad law. In other words, yielding to an innocent-sounding usurpation may create a dangerous precedent. So ask yourself: Does the Constitution allow the president to use the “Army” for any non-military purpose he pleases?
Or maybe you prefer to focus on some narrower examples:
* If the president decides that Argentina does not have sufficient health facilities, may he constitutionally send in the army to open and staff clinics there? (He could take the needed funds from Department of Defense appropriations.)
* Could he make the same decision for Pennsylvania?
* Could he send the army to register voters when there is no accompanying military threat?
* If your answer to the last question is “yes,” then could he focus the army’s registration campaign in states that lean toward his own party? If not, how does this differ constitutionally from the previous example?
* Could he send the military to build a highway in Ohio, if he concluded the highway was necessary for the economy there? Suppose his decision was related to Ohio’s vote in the next election?*
If those examples make you nervous, then your gut is telling you something. The army is not the president’s personal plaything. It is not a generalized work crew the president can order to do whatever he wants done. It is a military instrument, and it is dangerous to allow the president to use it for other purposes.
My guess is that the Constitution does not contain a clause banning the president from using the army for non-military ends only because the framers never imagined that any American president would do so.
Yet it has happened, and it demonstrates a flaw in our political system. For all its strengths, our Constitution contains inadequate protection against a president determined to ignore conventional limits. We have seen this before.
For example, it occurred in World War II, when the president shot at least one American citizen within the continental U.S. without a civilian trial and without habeas corpus, and when he imprisoned tens of thousands of others. (The U.S. Supreme Court failed to stop either action.) We now recognize that these were impermissible constitutional violations, but our repentance didn’t come in time to save the victims.
Once again we are witnessing the exercise of arbitrary executive power—and this time, the president does not even have the excuse of a war. But without a constitutional amendment, we are probably powerless to stop it.
* * * *
* The possibility of political abuse is not far-fetched. This administration’s history of misusing government agencies for political purposes raises the question of whether this operation was triggered in part by a perceived need to rally the heavily-Democratic African-American vote in the coming election. Certainly that is how some pro-Democrat activists are using it. Compare JFK’s pre-election timing of the Cuban missile crisis.
Institute Research Director Dave Kopel has long urged me to do a broadcast production on the Constitution in the Latin language, and now it’s here!
Produced by II web monkey Justin Longo, the program features an interview of me by my daughter Sarah on the American Founding and the nature of the Constitution. Sarah, 23, is a classics major at Willamette University in Salem, Oregon.
I raised all three of my daughters to be bilingual: While they were growing up, my wife spoke exclusively to them in English while I spoke to them exclusively in Latin.
For linguistic wimps, the telecast includes subtitles in English. You can see the program here.
For linguistic jocks: Not even the Romans navigated all of Latin’s grammatical mistakes perfectly. See if you can identify the specific grammatical errors I made in the course of this interview. (Hint: On reviewing the video, I counted four.)
Finally: The pronunciation Sarah and I use is that of “Late Latin.” This is pretty much the same as classical Latin, except that the letter “V” is pronounced as in Italian or English.
Recently when commenting on how Americans view the Founding, an associate of mine observed that in many people’s minds the Founders had become mythological rather than historical figures. That is, many people routinely ascribe ideas and actions—both good and bad, wise and stupid—to them that have little to do with historical reality or even human probability.
A common example: Some commentators who profess to revere the Founders and may even claim they were divinely inspired, nevertheless also insist that they grossly breached their faith in proposing a new Constitution rather than amendments to the Articles of Confederation.
My associate’s observation induced me to recall how ancient Greek and Roman writers portrayed their gods. They frequently portrayed the gods as just, majestic, imperturbable, gracious, and wise. But they also told stories that depicted the gods as wicked, petty, jealous, mean, and stupid. To cite one example: Jupiter (Zeus) was pater deumque hominumque—the father of gods and men, the defender of justice, the guardian of the world. Yet he was also a multiple rapist who turned himself into a bull so as to lure a young girl (Europa) in service of his lascivious plans.
Obviously, such portrayals have nothing to do with historical reality. But they are different only in degree from some portrayals of the Founders.
On the one hand, we need to remember that the Founders—framers, ratifiers, and opinion-molders—were not a passel of hicks who, in the dismissive words of Professor Louis Michael Seidman, “thought it was fine to own slaves.” On the other hand, we need to remember that they were not gods either. They were very wise, educated, and experienced men—and in some cases, such as that of Mercy Otis Warren, women. Nearly all were honorable and believed that slavery was a violation of natural law. Their knowledge of human nature and politics enabled them to erect our system of checks and balances. Their knowledge of history enabled them, to a very great extent, to transcend their own time and circumstances. Their drafting skill enabled them to produce a beautiful document, whose phrases have real meaning—even if, as in the case of the Necessary and Proper Clause, those meanings are often technical in nature.
Yet because they were men, they were fallible, and because they lived in a particular time and set of circumstances, they had to make compromises. One of those, and the one most often used to bash them, was their accommodation with slavery: They were faced with the difficult choice of indulging their belief that slavery was wrong or creating a new form of government that all states might ratify. They chose the latter. It was a nasty choice, but it also was one that helped ensure that America did not become, like Europe, a collection of small countries incessantly warring against each other.
In treating the Founders therefore, we should take them as they were. No hagiography and no demonology, either.
The Famous Case of Coleman v. Miller—and, No, It Doesn’t Give Congress Total Control Over the Amendment Process
Filed under: All Postings, Article V, supreme court
Not long ago, I was listening to a radio talk show and was assured by a caller that the Supreme Court, in the case of Coleman v. Miller, had delegated all important decisions over the amendment process to Congress. In other words, the caller said, Congress can make all decisions on every amendment issue: how states apply for a convention, how the convention conducts its business, whether amendments are ratified, etc., etc. Neither the states nor the courts would have anything to say about it.
Interesting assertion. Problem is, it’s not true.
The Supreme Court decided Coleman v. Miller in 1939. The case arose from a dispute over whether the Kansas legislature had properly ratified a proposed amendment to grant Congress authority over child labor. (All states banned child labor, but their laws were inconsistent.) The amendment had been pending for over 13 years, and the Kansas legislature earlier had rejected it.
So one question was whether Kansas could ratify an amendment after its earlier rejection. Another was whether Kansas could ratify an amendment 13 years after it was proposed. Still another was whether the lieutenant governor should have been allowed to cast a vote in an evenly-divided state senate. And there also was an issue of whether the plaintiffs had standing.
The Kansas Supreme Court upheld the ratification, and all those issues went to the U.S. Supreme Court.
The U.S. Supreme Court’s opinion was written by Chief Justice Charles Evans Hughes, an old-line progressive with a sterling legal reputation. This is how he ruled:
* The plaintiffs had standing.
* Apparently because the Supreme Court justices were evenly divided (one justice may not have participated) on whether they could consider the lieutenant governor issue, the Kansas court’s judgment upholding the lieutenant governor’s vote was sustained.
* Historical practice had been to leave to Congress the decision of whether a state ratification was valid if the same state had earlier (or later) rejected it.
* There was no way the Court could judge how long a proposed amendment might last. That was a judgment for Congress to make—by, for example, inserting a time limit in its original proposal.
The case certainly does not hold that Congress has complete control of the amendment process. I’ll address below where that misconception came from.
Two holdings in Coleman v. Miller were particularly notable, but only one remains important today. The Court’s rulling that it couldn’t judge how long a proposed amendment lasted is no longer relevant. That’s because America agreed in 1992 that proposed amendments lasted forever, unless they were withdrawn. We so agreed when we ratified the Twenty-Seventh Amendment, which Congress had proposed in 1789, more than two centuries earlier.
The part of the Coleman case still important today is its holding that courts interpret Article V in light of history. It was history that told the Court that Congress could resolve the conflict between a state’s ratification and its rejection. In this respect, though, Coleman is not unique: Both before and since, many judicial decisions have followed history in interpreting Article V.
Coleman also seems to clarify (although not entirely) that when Congress imposes a time limit on ratifying an amendment it proposes, Congress can do so because the time limit is part of its proposal. In other words, Congress’s authority to impose time limits doesn’t come from its prerogative to choose between the state convention and state legislative “modes of ratification,” as an earlier case had decided. It comes from its authority to propose. The implication is this: Although Congress can time-limit its own proposed amendments, it cannot impose time limits on an amendment proposed by an amendments convention.
Two justices dissented from the Court’s holding. They argued that the Child Labor Amendment proposal had expired. Four others concurred in the result, arguing that the plaintiffs had no standing.
There was another concurring opinion, too—this one written by Justice Hugo Black for himself and three colleagues. He claimed Congress enjoyed complete control over the amendment process and the courts had no power to review any of Congress’s decisions on that process. That’s where the misunderstanding about Coleman started. The notion that everything should be left to Congress did not come from the Court’s holding, but from the views of a minority.
Of course, anyone who reads Article V knows that the Black position was nonsense. Not surprisingly, subsequent court cases have rejected it repeatedly.
So why did Black make such a claim?
In 1939, the Court was entering the time period in which it was probably more deferential to Congress and the President than at any other time in our history. (Just five years later, Black was to write the Court’s decision in Korematsu v. U.S., deferring to the decision of Congress and the President to herd tens of thousands of American citizens of Japanese dissent into concentration camps.)
Everyone knew that FDR had been considering constitutional amendments, and that he had the support of strong majorities in Congress. Black, who until recently had been a U.S. Senator closely allied to FDR, was still more of a politician than a jurist. Allies of FDR—such as Black and two of the other justices who joined his opinion—may have wanted to emphasize congressional control over the amendment process.
Such notions of extreme judicial deference to Congress are long gone. I doubt that the Black opinion would garner the support of even one Supreme Court justice today.
Filed under: All Postings, Article V, The Founding
A few days ago I heard a presentation by a spokesman for a group that claims to defend the Constitution and revere the Founders. Yet the spokesman trashed the Constitution’s framers for allegedly exceeding their authority and claimed they added a provision that largely rendered another provision useless. In other words, the spokesman charged the framers with being both (1) dishonorable and (2) incompetent.
The framers inserted the “Convention for proposing Amendments” in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference. Tench Coxe, a leading advocate for the Constitution during the ratification debates, pointed out that the convention device allows the states to obtain whatever amendments they choose “although the President, Senate and Federal House of Representatives, should be unanimously opposed to each and all of them.” (Italics in original.)
The spokesman, however, asserted that the Constitution allowed Congress, through the Necessary and Proper Clause, to dictate, either in the convention call or by previous legislation, how an amendments convention is structured and how commissioners (delegates) are selected and apportioned.
The claim that Congress can use the Necessary and Proper Clause to structure the convention was first advanced in the 1960s, and has been repeated numerous times since then. A Congressional Research Service report published earlier this year noted that some in Congress have taken the same line, although the report did not actually endorse it.
But pause to consider: Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress? Were that framers that stupid?
Of course not. Most of them were highly experienced and extremely deft legal drafters.
Behind the belief that the Necessary and Proper Clause empowers Congress to structure the convention are three distinct assumptions—all erroneous: They are (1) that the scope of Congress’s authority under the Necessary and Proper Clause is broader than it is, (2) that the Clause covers the amendment process, and (3) that ordinary legislation may govern the amendment process.
The Necessary and Proper Clause is the last item in the Article I, Section 8 list of congressional powers. It reads:
The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It happens that the most extensive treatment of the Necessary and Proper Clause is an academic book I co-authored with Professors Gary Lawson, Guy Seidman, and Geoff Miller: The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) (cited by Justice Thomas in a Supreme Court case earlier this year and apparently relied on by Chief Justice Roberts in 2012). This book reveals the Necessary and Proper Clause to be a masterpiece of legal draftsmanship.
The Clause was based on usage common in 18th-century legal documents. It is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. In legal terms, the Necessary and Proper Clause informs us that those enumerated powers include “incidental” authority.
Even if the Clause did apply to the amendment process, the authority “incidental” to Congress’s call would be quite narrow. An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.
But in fact the Necessary and Proper Clause does not extend to the amendment process. To explain:
The Constitution includes numerous grants of power. These grants are made to Congress, to the President, to the courts, and to state legislatures and various conventions. The Clause is crafted to apply to most of those grants, but it also excludes a number of them. Specifically, it covers only the powers listed in Article I, Section 8, and those vested in the “Government of the United States” and in “Departments” and “Officers” of that government.
In other words, the Clause omits constitutional grants made to entities that are not part of the “Government of the United States.” For example, the Clause does not apply to state legislatures regulating congressional election law, prescribing selection of presidential electors, or (before the 17th amendment) choosing U.S. Senators. Nor does it apply to the conventions and legislatures operating in the amendment process.
But is Congress a “Department” of government as the Necessary and Proper Clause uses that word? When Congress acts in its normal legislative capacity, you can argue this either way. But when Congress acts under the amendment process, the answer is clearly “no.”
This is because when Congress and state legislatures act in the amendment process, they do so not as branches of government, but as ad hoc assemblies. We know this (1) from the Founding Era record, (2) from subsequent history and, perhaps most importantly, (3) from decisions of the United States Supreme Court. See, for example, United States v. Sprague (1931).
Well, if Congress cannot insert language in the “call” structuring the convention, can it pass laws for the same purpose? Again, the answer is “no.” A long list of 20th century cases from courts at all levels holds that ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).
Filed under: All Postings, The Founding, supreme court
This Article is a modified version of one appearing in the American Thinker.
If President after President failed to veto bills, would it surprise you if congressional power grew at the expense of the presidency? If the Senate never blocked the President’s appointments, would it surprise you if presidential power expanded at the expense of Congress? If the courts refused to enforce the Constitution’s ban on ex post facto laws, would it be strange if the states passed more ex post facto laws?
And if the states failed to use the Constitution’s “convention for proposing amendments” — a device inserted in the document to correct and check federal excesses and abuses — would it astonish you if there were federal excesses and abuses?
Of course not. Each of the Constitution’s checks is designed to ensure that the system operates in a balanced way while preserving liberty. Disabling any of these checks violates the Founders’ design.
Although Presidents often veto bills, senators sometimes block nominations, and the courts enforce the ban on state ex post facto laws, the Article V procedure by which a convention of states bypasses Congress and proposes corrective amendments has never been used to completion. The neglect helps explain the size and dysfunction of the modern federal government.
There are, of course, social, political, and economic explanations for expansion of federal power. There also are constitutional explanations. The three most common constitutional explanations are:
- The 16th Amendment (ending the apportionment rule for federal income taxes) granted the federal government a massive new revenue source.
- The 17th Amendment, by transferring senatorial elections from the state legislatures to the people, reduced the role of the states in the federal system.
- In the late 1930s and (especially) the 1940s, the Supreme Court abdicated its responsibility to police the boundaries of federal jurisdiction.
The 16th Amendment explanation falls short in a number of respects. Although the Amendment provided a new revenue source, it did not otherwise expand federal enumerated powers. Moreover, during the late 19th century (1865-95) and much of the early 20th century (1913-29) Congress enjoyed the de facto ability to impose non-apportioned income taxes. Yet federal spending shrank to (approximately) historic peacetime size after both the Civil War and after World War I.
The 17th Amendment reduced direct state legislative influence over the U.S. Senate, but it also provided some compensating advantages to the states. Some pro-small-government scholars believe the Amendment’s unbundling of state legislative and senatorial elections actually increased the relative power of the states. In other words, despite all the rhetoric on the subject, the net effect of the 17th Amendment on the federal state balance is still uncertain.
As for the Supreme Court’s abdication of its duty to police federal limits in the late 1930s and 1940s: This was a crucial development, but it fails to explain the previous actions of Congress and the President. Beginning around 1930 (despite unfavorable Supreme Court precedent), federal politicians were able to leverage a financial crisis to seize far more power than federal politicians ever had before. During World War II, they were able to hold and expand that power.
The failure of state legislatures to trigger the Article V process in the midst of depression and war is understandable. Less justifiable was state inaction during the decades after World War II, when the federal government refused to retreat to traditional peacetime levels — especially since that sort of intransigence was precisely the kind of crisis for which the convention device was created.
To be sure, there were some efforts to trigger the convention procedure. The first was the state-based movement for presidential term limits, which became unnecessary when Congress proposed the the 22nd amendment.
The other two were the campaign for a balanced budget amendment and for reversal of Supreme Court apportionment decisions. Both were defeated when apologists for the status quo filled gullible activists with “runaway convention” hysteria.
Neglect of the Article V convention procedure has caused incalculable damage to the constitutional system. The recent surge in “convention of states” activity — at least 15 new state applications since 2011 — may signal that the cure has begun.
Filed under: All Postings, The Founding, supreme court
While hosting a Montana radio talk show in the late 1990s, I interviewed a prominent left-wing environmental activist. He was promoting an anti-mining ballot measure. During the interview, he read from a 16th-century book that (he said) had shown that mining had all sorts of evil effects.
But something about the quote did not ring true. So I obtained a copy of the book myself.
When I read the passage the activist had read over the air, I found that my suspicions had been justified. He had taken the language completely out of context. The author was not against mining at all. He was listing exaggerated claims by mining opponents as a preliminary to rebutting them. The author was a professional mining engineer, and a big fan of mining.
Someone had lied to me, and to my radio audience. The guilty party was either the activist or the person who had, directly or indirectly, provided him with the quotation. I’ll never know the answer. When I contacted the activist to offer him an opportunity to explain, he failed to respond.
That’s when I learned that left-wing environmental activists sometimes abuse the truth. Subsequently, I learned that they abuse it quite a lot.
Consider how they depict the legal doctrine of “public trust.” The following gem comes from an outfit called the “Center for Progressive Reform:”
Across cultures and continents, communities have always imbued certain natural resources with a sense of permanent public ownership. . . . These resources belong to the public, and no private entity can ever acquire the right to monopolize or deprive the public of the right to use and enjoy them. In legal terms, this concept became known as the public trust doctrine, imported into the United States as common law from ancient Roman, Spanish, and English law.
Okay, then, the public trust doctrine is supposedly designed to restrict the freedom of “private entities.”
But re-read that passage carefully. Doesn’t it make you just a little suspicious? It states, “Communities have always imbued certain natural resources with a sense of permanent public ownership.” How would the Center for Progressive Reform know that? Do they know the history of how all communities have “always” worked? Are they gods? Surely to support a generalization like that it is not enough to cite the law of Rome, Spain, and England. What of the rest of the world? What of other eras?
That’s the sort of smell that makes me hold my nose and dig a little further. It doesn’t take much digging to find out that someone at the Center for Progressive Reform is a fiction writer. For example:
* Their version of the public trust doctrine does not, in fact, come from “ancient Roman . . . law.” It’s just not there. Some writers do cite passages from Justinian’s Institutes or Digest. But like my 1990s radio guest, they tear the language out of context. Those passages do not address people’s rights over their own property. They refer only to the status of resources BEFORE those resources are reduced to private ownership.
* Nor does their version of “public trust” come from the English common law. Although some point to Magna Carta, that document does not empower government against private citizens. On the contrary, it protects private citizens against the Crown.
* Environmentalists are fond of claiming that the Supreme Court adopted their version of public trust in Illinois Central Railroad Co. v. Illinois (1892). But if you read that case, you find that it is really not about restricting private rights. The case held that a state government could not disregard its trust duties through a corrupt land sale.*
Is there a real public trust doctrine? Yes, there is.
But it is not about restricting private rights. It is about controlling government.
The historical (as opposed to fictional) public trust doctrine says that government’s agents are trustees or fiduciaries and are bound by the same duties that apply to private sector managers such as bankers, trustees, and guardians. Those duties include obligations of good faith (honesty), reasonableness, loyalty (including avoidance of conflict of interest), and impartiality (serving your beneficiaries fairly).
You can find the true public trust doctrine in the writings of Aristotle and Cicero and in essays by medieval scholars, British Presbyterian theorists, and early modern writers such as John Locke. From such sources many of the American Founders adopted the view that government actions in violation of fiduciary duties were void. That was basically the same approach the Supreme Court applied in the Illinois Central Railroad case.
The public trust doctrine was designed to control government, not to empower it. Claiming it as an instrument to allow government to control innocent citizens is not just a lie—it also turns the concept of “public trust” on its head.
* * * *
* By the way, the Illinois Central Railroad case is pretty shaky as constitutional law. It was decided by a four-justice court minority, with three justices dissenting and two recusing themselves. The case held that the state had exceeded its “police power” through a land sale, but cited nothing in the U.S. Constitution supporting its decision. One might argue that the state violated the 14th Amendment, but the Court never said so.
Filed under: All Postings, The Founding, supreme court
The Constitution was adopted amid a belief that government is a public trust.*
Does the Constitution require federal and state governments to adhere to formal duties of public trust—that is, to fiduciary duties?
In some places, at least, it clearly does: The Equal Protection Clause of the Fourteenth Amendment imposes on the states what is essentially the fiduciary duty of impartiality—that is, the requirement that states not treat people differently without good reason. The requirement in the Necessary and Proper Clause that incidental laws be “proper” may impose a similar rule on the federal government when that government legislates under the Necessary and Proper Clause rather than under its core enumerated powers.
But what if no specific clause governs the issue? Last year I reported that Gary Lawson, Guy Seidman, and I—three constitutional scholars of contrasting political views—had written an article exploring that question.
We pointed out that in interpreting any fiduciary document (like the Constitution), the Courts are supposed to apply certain background rules, unless the document says differently.We noted that one of the standard background rules—existing both at the Founding and today—is that fiduciaries have an obligation not to treat people differently without reasonable cause: the duty of impartiality. We concluded, therefore, that the 1954 Supreme Court case invalidating segregation by race in District of Columbia schools was correctly decided, because in the area of education mere skin color is not reasonable cause.
The article has now been formally published by Boston University Law Review, one of the nation’s more prestigious law journals. You can read it here.
* Note: Our Founders understood the term “public trust” in the way used by John Locke and others: as the obligation of the government to comply with fiduciary standards. Left-wing environmentists have hijacked the term to restrict the freedom of private citizens. The problem began when someone misunderstood and distorted an 1892 Supreme Court case on public trust. More on that soon.
Filed under: All Postings, ObamaCare, The Founding, supreme court
Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says 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.”
The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.
H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.
As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”
There are several key issues involved:
* The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?
* Was the original H.R. 3590 a “Bill for raising Revenue?”
* If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”
The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.
I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.
I embodied my conclusions in a new, and rather lengthy, article. Here they are:
* The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)
* H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.
* H.R. 3590 properly arose in the House of Representatives.
* The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.
* However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.
* In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.
* For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.
* On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.
I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.
One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.
If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.
More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as a tax.