The New York Times, to no one’s surprise, opposes our lawsuit challenging the constitutionality of Obamacare on the grounds that the ACA “tax” did not originate in the House, as the Constitution requires. Prof. Randy Barnett has a response here. As Barnett notes, “The Supreme Court has never ruled that this ‘completely gut and entirely replace’ ‘shell bill’ procedure is a proper ‘amendment’ that satisfies the Origination Clause, though it has told us that violations of the Origination Clause are as justiciable as any other constitutional violation. Again, if striking every last word of an unrelated House revenue bill satisfies the requirement that the House originated bill be amended, then the Origination Clause is rendered a nullity.”
Along the same lines, the L.A. Times’ Jon Healey writes that “if [PLF] is correct, it would read a germaneness requirement into the origination clause that the founders didn’t write.” That’s not true.
The Constitution imposes a germaneness requirement because it allows the Senate only to “propose or concur with Amendments” to “Bills for raising Revenue” that “originate in the House of Representatives,” but forbids the Senate from originating such bills. What is an amendment, and how does it differ from originating a bill? The answer is: germaneness. For something to be an amendment simply means to alter the original in a way that retains the character of the original but changes or reforms it in some way–at the very least, it means something short of completely destroying and replacing. In other words, the difference between originating and amending is that an amendment is germane. That’s why the germaneness requirement was affirmed not only in Flint, but also in the many cases challenging the constitutionality of the TEFRA tax increase…indeed, every court of appeals to address the question has agreed that “germaneness” is required. See, e.g., Wyoming Trucking Ass’n, Inc. v. Bentsen, 82 F.3d 930, 934-35 (10th Cir. 1996); Texas Ass’n of Concerned Taxpayers, Inc. v. United States, 772 F.2d 163, 168 (5th Cir. 1985); Armstrong v. United States, 759 F.2d 1378, 1382 (9th Cir. 1985); Harris v. U.S.I.R.S., 758 F.2d 456, 458 (9th Cir. 1985). That’s because it is an inherent part of the word “amend”–and essential to the constitution’s limit on the Senate’s power to tax. Without it, the Senate could do what it did here: exploit an obvious procedural trick to escape the Constitution’s clear mandate. While the word “germane” may not appear in the Constitution, neither does the word “standing,” or the phrases “separation of powers,” or “judicial review.” That doesn’t make these concepts any less part of our Constitution.