The Origination Clause, sometimes called the Revenue Clause,
[Wirls, Daniel and Wirls, Stephen. ]
The Invention of the United States Senate
', p. 188 (Taylor & Francis 2004). is
Article I, Section 7, Clause 1 of the
U.S. Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...
. The clause says that all bills for raising
revenue
In accounting, revenue is the total amount of income generated by the sale of goods and services related to the primary operations of the business.
Commercial revenue may also be referred to as sales or as turnover. Some companies receive reven ...
must start in the
U.S. House of Representatives, but the
U.S. Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
may propose or concur with amendments, as in the case of other bills.
The Origination Clause stemmed from a British parliamentary practice that all
money bill
In the Westminster system (and, colloquially, in the United States), a money bill or supply bill is a bill that solely concerns taxation or government spending (also known as appropriation of money), as opposed to changes in public law.
Conv ...
s must have their
first reading
A reading of a bill is a stage of debate on the bill held by a general body of a legislature.
In the Westminster system, developed in the United Kingdom, there are generally three readings of a bill as it passes through the stages of becoming, ...
and any other initial readings in the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
before they are sent to the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
. The practice was intended to ensure that the
power of the purse
The power of the purse is the ability of one group to manipulate and control the actions of another group by withholding funding, or putting stipulations on the use of funds. The power of the purse can be used positively (e.g. awarding extra fun ...
is possessed by the legislative body most responsive to the people, but the British practice was modified in America by allowing the Senate to amend these bills.
This clause was part of the
Great Compromise
The Connecticut Compromise (also known as the Great Compromise of 1787 or Sherman Compromise) was an agreement reached during the Constitutional Convention of 1787 that in part defined the legislative structure and representation each state woul ...
between small and large states. The large states were unhappy with the lopsided power of small states in the Senate and so the Origination Clause theoretically offsets the unrepresentative nature of the Senate by compensating the large states for allowing equal voting rights to senators from small states.
Text
The clause reads as follows:
''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.''
Background
The U.S. Constitution was written in 1787 and adopted in 1789. Several state constitutions followed British practice by providing that "money bills" must start in the more representative branch of the state legislature.
[Sargent, Noel.]
Bills for Raising Revenue Under the Federal and State Constitutions
, ''Minnesota Law Review
The ''Minnesota Law Review'' is a student-run law review published by students at University of Minnesota Law School. The journal is published six times a year in November, December, February, April, May, and June. It was established by Henry J. Fl ...
'', Vol. 4, p. 330 (1919).
Vesting the power of origination in the House of Representatives was part of the
Great Compromise
The Connecticut Compromise (also known as the Great Compromise of 1787 or Sherman Compromise) was an agreement reached during the Constitutional Convention of 1787 that in part defined the legislative structure and representation each state woul ...
in which the framers also agreed to allow equality in the Senate, regardless of a state's population, and to allow representation in the House based on a state's population. The framers adopted the Great Compromise on July 16, 1787. The draft clause then stated that "all bills for raising or appropriating money.... shall originate in the
epresentative house and shall not be altered or amended by the
ther house ... "
[Meigs, William. ]
The Growth of the Constitution in the Federal Convention of 1787
', pp. 110–112 (Lippincott 1900).
The Origination Clause was modified later in 1787 to reduce the House's power by allowing the Senate to amend revenue bills and by removing
appropriation bills from the scope of the clause (the House and Senate have disagreed on the latter point).
However, a proposal was defeated that would have reduced the House's power even more by changing "bills for raising revenue" to "bills for raising money for the purpose of revenue."
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
explained:
In many acts, particularly in the regulations of trade, the object would be twofold. The raising of revenue would be one of them. How could it be determined which was the primary or predominant one; or whether it was necessary that revenue shd: be the sole object, in exclusion even of other incidental effects.
Regarding the decision to allow Senate amendments, some of the reasoning was given by
Theophilus Parsons
Theophilus Parsons (February 24, 1750October 30, 1813) was an American jurist.
Life
Born in Newbury, Massachusetts to a clergyman father, Parsons was one of the early students at the Dummer Academy (now The Governor's Academy) before matricu ...
during the convention in Massachusetts that ratified the Constitution. He said that otherwise, "representatives might tack any foreign matter to a money-bill, and compel the Senate to concur or lose the supplies." Madison believed that the difference between a permissible Senate amendment and an impermissible Senate amendment would "turn on the degree of connection between the matter & object of the bill and the alteration or amendment offered to it."
The
Continental Congress then had a rule: "No new motion or proposition shall be admitted under color of amendment as a substitute for a question or proposition under debate until it is postponed or disagreed to."
At the
Virginia convention to ratify the Constitution, the delegate
William Grayson
William Grayson (1742 – March 12, 1790) was a planter, lawyer and statesman from Virginia. After leading a Virginia regiment in the Continental Army, Grayson served in the Virginia House of Delegates before becoming one of the first two U ...
was concerned that a substitute amendment could have the same effect as an origination: "the Senate could strike out every word of the bill except the word whereas, or any other introductory word, and might substitute new words of their own."
Grayson was not convinced by Madison's argument that "the first part of the clause is sufficiently expressed to exclude all doubts" about where the origination must occur.
In its final form, the Origination Clause was a major selling point for the ratification of the Constitution. James Madison, who supported the final version during and after the 1787 Convention,
wrote the following in
Federalist 58 while the debate over ratification raged:
[Medina, J. Michael]
The Origination Clause in the American Constitution: A Comparative Survey
Tulsa Law Journal, Vol. 23, p. 165 (1987). Madison also wrote in Federalist No. 45 that "the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defense and general welfare, as the future Congress will have to require them of individual citizens."
The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse; that powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people, gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse, may in fact be regarded as the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
The clause resonated with a citizenry opposed to
taxation without representation
"No taxation without representation" is a political slogan that originated in the American Revolution, and which expressed one of the primary grievances of the American colonists for Great Britain. In short, many colonists believed that as they ...
.
Developments since 1789
Many scholars have written about the Origination Clause. Among the most widely influential was
Joseph Story
Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in ''Martin v. Hunter's Lessee'' and '' United States ...
, who wrote in 1833 that the clause refers only to bills that levy taxes:
he clausehas 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. No one supposes, that a bill to sell any of the public lands, or to sell public stock, is a bill to raise revenue, in the sense of the constitution. Much less would a bill be so deemed, which merely regulated the value of foreign or domestic coins, or authorized a discharge of insolvent debtors upon assignments of their estates to the United States, giving a priority of payment to the United States in cases of insolvency, although all of them might incidentally bring, revenue into the treasury.
The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has decided several cases involving this clause, and all of those challenges to federal statutes failed. For example, in the 1911 case of ''
Flint v. Stone Tracy Company'', the Court held, "The amendment was germane to the subject-matter of the bill and not beyond the power of the Senate to propose." However, the plaintiffs in one lower court decision succeeded in striking down a federal statute on Origination Clause grounds.
[Hubbard v. Lowe]
226 F. 135 (S.D.N.Y. 1915), appeal dismissed mem., 242 U.S. 654 (1916). The Supreme Court stated in the 1990 case of ''
United States v. Munoz-Flores'':
[United States v. Munoz-Flores]
495 U.S. 385 (1990).
Both parties agree that "revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." Twin City Bank v. Nebeker, 167 U. S. 196, 202 (1897) (citing 1 J. Story, Commentaries on the Constitution § 880, pp. 610–611 (3d ed. 1858)). The Court has interpreted this general rule to mean that a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support Government generally, is not a "Bil for raising Revenue" within the meaning of the Origination Clause.
![Daguerreotype of Joseph Story, 1844 (edit)](https://upload.wikimedia.org/wikipedia/commons/7/7a/Daguerreotype_of_Joseph_Story%2C_1844_%28edit%29.jpg)
What this means exactly is disputed. According to one scholar, a statute is outside the scope of the Origination Clause if it "imposes an exaction not to raise revenue, but to enforce a statute passed under the Commerce Clause or other enumerated power." However, according to another scholar, even exactions imposed only under the taxing powers of Congress are outside the scope of the Origination Clause if Congress "earmarks revenues to fund a program it creates." Regarding the latter view, Justice
John Paul Stevens suggested in 1990 that its tendency was to "convert the Origination Clause into a formal accounting requirement.... "
A bill that lowers taxes instead of raises taxes may still be a bill for raising revenue, according to the
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
.
Assuming that a bill is for raising revenue, a further ambiguity in the clause involves how far the Senate's right to amend extends.
[Saturno, James.]
The Origination Clause of the U.S. Constitution: Interpretation and Enforcement
, CRS Report for Congress (Mar-15-2011). According to law professor
Jack Balkin
Jack M. Balkin (born August 13, 1956) is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP), a r ...
, the Senate may take a House-originated revenue bill and "substitute a different bill on a different subject." On the other hand, law professor
Randy Barnett
Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
wrote, "The Supreme Court has never approved the 'strike-and-replace' procedure.... "
Not only the House of Representatives but also the Senate and the judiciary have sometimes tried to guard the role of the House with regard to origination of revenue bills. For example, as early as 1789, the Senate deemed itself helpless to pass a law levying a tax.
As mentioned, a federal court in 1915 struck down legislation contrary to the clause.
The U.S. Supreme Court has expressed willingness to address such issues, according to its 1990 opinion by Justice
Thurgood Marshall
Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
in ''Munoz-Flores'':
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.
In 2012, the joint dissent in the U.S. Supreme Court case ''
National Federation of Independent Business v. Sebelius
''National Federation of Independent Business v. Sebelius'', 567 U.S. 519 (2012), was a List of landmark court decisions in the United States, landmark United States Supreme Court decision in which the Court upheld Congress's power to enact most ...
'' mentioned that "the Constitution requires tax increases to originate in the House of Representatives" per the Origination Clause, though that issue was not addressed by the majority opinion. In 2014, ''
Sissel v. U.S. Department of Health and Human Services'', a challenge to the
Affordable Care Act
The Affordable Care Act (ACA), formally known as the Patient Protection and Affordable Care Act and colloquially known as Obamacare, is a landmark U.S. federal statute enacted by the 111th United States Congress and signed into law by Pres ...
brought by the
Pacific Legal Foundation
Pacific Legal Foundation (PLF) is a libertarian public interest law firm in the United States.Zumbrun, Ronald A. (2004). "Life, Liberty, and Property Rights," in ''Bringing Justice to the People: The Story of the Freedom-Based Public Interest La ...
based upon the clause was rejected by a panel of the
United States Court of Appeals for the District of Columbia
The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate co ...
, and that court later declined a request to put the matter before all of its judges ("
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...
") over a lengthy dissent authored by Judge
Brett Kavanaugh
Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since ...
.
Sissel v. DHS
, "On Petititon for Rehearing En Banc" (August 7, 2015).
In 2013, during the United States federal government shutdown of 2013
From October 1 to October 17, 2013, the United States federal government entered a shutdown and curtailed most routine operations because neither legislation appropriating funds for fiscal year 2014 nor a continuing resolution for the interim ...
and the United States debt-ceiling crisis of 2013
The 2013 United States debt-ceiling crisis centered on the raising of the federal government debt ceiling, and is part of an ongoing political debate in the United States Congress about federal government spending and the national debt. The cr ...
, the Republican
Republican can refer to:
Political ideology
* An advocate of a republic, a type of government that is not a monarchy or dictatorship, and is usually associated with the rule of law.
** Republicanism, the ideology in support of republics or agains ...
-led House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
could not agree on or pass an originating resolution to end the government crisis, as had been agreed, and so the Democratic-led Senate used Bill H.R. 2775 to resolve the impasse by using the Continuing Appropriations Act, 2014
The Continuing Appropriations Act, 2014 (; ) is a law used to resolve both the United States federal government shutdown of 2013 and the United States debt-ceiling crisis of 2013. After the Republican-led House of Representatives could not agr ...
, an insignificant bill that had originated in the House, which the Senate amended all the tax and appropriation measures to satisfy the formal requirements of the Originating Clause.
See also
* Article One of the United States Constitution (where the Origination Clause is located)
*Blue slip
Blue slip or blue-slipping refers to two distinct legislative procedures in the United States Congress.
In the House of Representatives, it is the rejection slip given to tax and spending bills sent to it by the Senate that did not originate in ...
(when the House protests on Origination Clause grounds)
*Taxing and Spending Clause
The Taxing and Spending Clause (which contains provisions known as the General Welfare Clause and the Uniformity Clause), Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States it ...
(authorizes Congress to levy taxes)
* Sixteenth Amendment (expands ability of Congress to levy taxes)
* Seventeenth Amendment (provides for direct election of two senators for each state)
*Shell bill
Shell may refer to:
Architecture and design
* Shell (structure), a thin structure
** Concrete shell, a thin shell of concrete, usually with no interior columns or exterior buttresses
** Thin-shell structure
Science Biology
* Seashell, a hard o ...
(legislative maneuver)
* Substitute amendment (legislative maneuver)
References
External links
*"Article 1, Section 7, Clause 1",
The Founders' Constitution
', University of Chicago (2000).
*Zotti, Priscilla and Schmitz, Nicholas.
“The Origination Clause: Meaning, Precedent, and Theory from the 12th Century to the 21st Century”
''British Journal of American Legal Studies'', Vol. 3 (Spring 2014).
*Jensen, Erik,
The Origination Clause
, ''The Heritage Guide to the Constitution''.
*Natelson, Robert
The Founders’ Origination Clause (and Implications for the Affordable Care Act)
The Independence Institute (August 3, 2014), via SSRN.
*Riddick, Floyd.
Revenue
, ''Senate Procedure'', p. 1214 (1992).
*Hinds, Asher.
Prerogatives of the House as to Revenue Legislation
, ''Hinds' Precedents of the House of Representatives of the United States'', p. 942 (U.S. Government Printing Office 1907).
The Original Meaning of the Origination Clause: Hearing before the Subcommittee on the Constitution and Civil Justice of the Committee on the Judiciary, House of Representatives, One Hundred Thirteenth Congress, Second Session, April 29, 2014
*Smyth, Daniel
The Original Public Meaning of Amendment in the Origination Clause Versus the Patient Protection and Affordable Care Act
''British Journal of American Legal Studies'', Vol. 6(2), forthcoming.
{{USArticleI
Article One of the United States Constitution
Clauses of the United States Constitution
Legislative branch of the United States government
Taxation in the United States
Origination Clause case law