UNITED STATES OF AMERICA, PETITIONER V. GERMAN MUNOZ-FLORES

   No. 88-1932

   In the Supreme Court of the United States

   October Term, 1989

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the United States

   1. a. In our opening brief, we set forth various reasons why an
Origination Clause challenge presents a nonjusticiable political
question.  The most persuasive reason for that conclusion is "the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government."
Baker v. Carr, 369 U.S. 186, 217 (1962).  The House enjoys absolute
power to enforce its role in originating revenue legislation, and it
has repeatedly used that power over the last two centuries.  See Gov't
Br. 10-11 & n.9.

   Respondent contends that congressional practices with respect to
the Origination Clause should be discounted because "Congress has
relied on judicial interpretations in deciding whether a bill violates
the Origination Clause." Resp. Br. 2;  see also id. at 7-8, 10, 11-12.
 The congressional references to this Court's opinions, however,
scarcely constitute an acknowledgement by the House that the judiciary
is principally responsible for enforcing the Origination Clause.  On
the contrary, in considering Origination Clause issues, Congress has
consistently taken the view that it is the House of Representatives
that bears the responsibility for enforcing its Origination Clause
prerogatives.  /1/

   Respondent's suggestion that congressional practices are premised
on a system of judicial enforcement is especially curious in view of
the fact that this Court's decisions themselves rely on congressional
practice for their Origination Clause analysis.  In the first opinion
discussing the Origination Clause, the Court emphasized that "(t)he
construction of this limitation is practically well settled by the
uniform action of Congress." United States v. Norton, 91 U.S. 566, 569
(1875).  In subsequent cases, this Court has relied on the fact that,
as Justice Story noted, the "practical construction" of the Clause
"has been confined to bills to levy taxes in the strict sense of the
word, and has not been understood to extend to bills for other
purposes, which may incidentally create revenue." 2 J. Story,
Commentaries on the Constitution of the United States Section 880, at
611 (2d ed. 1851), quoted in Millard v. Roberts, 202 U.S. 429, 436
(1906), and Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897).
Thus, respondent has it exactly backwards;  rather than Congress
shaping its practices with an eye to judicial review, this Court in
its handful of Origination Clause decisions has construed the Clause
consistently with congressional practice.

   b. Respondent's suggestion (Br. 13-15) that the Origination Clause
embodies constitutional values to be enforced by the judiciary is
similarly unpersuasive.  As in all cases in which an Origination
Clause issue arises, the legislation in this case did not provoke an
objection from the House of Representatives on the ground that its
prerogatives under the Origination Clause were ignored.  Nonetheless,
respondent argues that the rule of sequence must be judicially
enforced because it is a "rule of accountability for revenue
legislation" and "provides direct protection to individual citizens by
insuring that the representatives most directly responsive to the
people take the responsibility of taking money from the people through
taxation." Resp. Br. 3.  The "accountability" that respondent seeks,
however, is judicial enforcement of the House's role in originating
revenue legislation in cases in which the House has not seen fit to
utilize its own enforcement mechanisms.  Since Origination Clause
issues involve what respondent himself terms a question of the
"balance of the power between the House and Senate" (ibid.), there is
no reason for courts to referee that internal congressional matter in
the name of "accountability." /2/

   To recognize judicial authority to enforce the Origination Clause
is to authorize courts to trump the House's judgment that the Clause
is inapplicable or that there is no reason to invoke it.  Such a
conclusion will require the House not only to continue its
well-established enforcement procedures, but also to adopt potentially
burdensome new procedural requirements for any legislation that might
be found to be within the scope of the Clause.  Under respondent's
approach, it would be insufficient that the House was the first
chamber to pass the provision that was enacted into law.  After the
Senate combined two House-passed pieces of legislation, the House
would then have had to pass identical legislation under a new bill
number and send that combined version back to the Senate for its
further consideration.  Congressional failure to engage in those
formalities would mean, under respondent's regime, that the
legislation would be subject to complete invalidation, and at minimum
could become the subject of extended litigation.

   These burdens, and the concomitant disregard of the House's own
judgment about the applicability of and the need to invoke the
Origination Clause, might be justified if the Origination Clause
served some important interest independent of regulating the relative
powers of the House and Senate, but it does not.  The only consequence
of permitting adjudication of this issue would be to provide a ground
for persons such as respondent to avoid paying a fee that the House,
the Senate, and the President have all agreed they should be required
to pay.

   Contrary to respondent's contention, the interests of individual
citizens under the Origination Clause are highly attenuated.  Those
asserted interests rest on the House's institutional characteristics
(and its purportedly more democratic character).  According to
respondent, a citizen has more "protection," presumably from
irresponsible or unrepresentative taxation, if the more democratic
body must originate revenue measures.  Unlike the situation in a case
like INS v. Chadha, 462 U.S. 919 (1983), however, a statute challenged
under the Origination Clause has been passed with the full
participation of both Houses and presentment to the President.  The
individual citizen is thus left to base his claim on a matter of
sequence before final passage and enactment.

   The insubstantial nature of this asserted interest can best be seen
in the clearest example of an Origination Clause violation:  the
Senate passes a tax measure, the House (contrary to its usual practice
of guarding its origination responsibilities) then passes the measure,
and the President signs it into law.  As respondent recognizes (Br.
28), the House could cure the origination problem simply by passing
the identical measure under a new bill number and sending it back to
the Senate for repassage and presentment to the President.  The
difference between those two actions by the House is the entirety of
the injury claimed by respondent.  Surely the difference between the
House passing specific language in a Senate-provided vehicle and the
House passing the identical language under a new bill number inflicts
no substantive injury on individual citizens.  The asserted
"protection" afforded by the Origination Clause to individual citizens
therefore provides a very weak foundation for overriding the House's
own determinations about its origination responsibilities.  /3/

   2. Even if Origination Clause challenges are justiciable,
respondent's challenge to the constitutionality of the special
assessment provision must nevertheless fail for three reasons:  (1)
the provision is not a "Bill() for raising Revenue";  (2) the
provision "originated" in the House;  and (3) the Senate's action
should not be found to be an impermissible amendment.  Any one of
these reasons is sufficient to sustain the statute.

   a. As respondent recognizes (Br. 17), "Bills for raising Revenue"
within the meaning of the Origination Clause are "those that levy
taxes in the strict sense of the word, and are not bills for other
purposes which may incidentally create revenue." Nebeker, 167 U.S. at
202.  The special assessment provision is not a "Bill() for raising
Revenue," because its purpose is not to "levy taxes in the strict
sense of the word";  to the contrary, its purposes are to assist
victims of crime and to penalize violators of federal law.  See Gov't
Br. 16-22.  Based on those purposes, five Circuits have now explicitly
rejected the Ninth Circuit's conclusion that the special assessment
provision is a bill for raising revenue.  /4/

   Respondent recognizes, as he must, that the special assessments are
to be deposited in the Crime Victims Fund, but he maintains that the
special assessment provision is a "Bill() for raising Revenue" because
(1) the Fund should be considered a general expenditure of government;
 (2) the special assessment provision itself does not express a
purpose;  and (3) even if providing money for the Victims Fund is the
primary purpose and the Fund is not a general expenditure of
government, there is not a sufficient relationship between the people
on whom the fee is imposed (persons convicted of federal offenses) and
the people who benefit from the fund (victims of crime).  Resp. Br.
18-23.  None of these arguments is well founded.

   Respondent's first argument -- that the Fund should be considered a
general expenditure of government -- rests principally on the view
that "(a)ssistance to potentially large numbers of individuals who are
victims of crime should be considered a general obligation and
expenditure of government." Resp. Br. 20.  That view is mistaken.  The
size of the beneficiary class has never been the touchstone for this
Court's analysis of whether legislation is a "Bill() for raising
Revenue." In Nebeker, for instance, this Court noted that the purpose
of the legislation at issue was to benefit "the people" throughout the
nation.  /5/ The fact that the statute in question would benefit
"potentially large numbers of individuals" did not prevent the Court
from finding that it was not a "Bill() for raising Revenue." Moreover,
as a matter of logic, there is no reason why the size of the
beneficiary class should be related to the purpose-of-legislation test
suggested both by the words of the Clause ("Bills for raising
Revenue") and by this Court's decisions in Millard, Nebeker, and
Norton.

   Respondent's suggestion that "(n)othing on the face of section 3013
reveals its underlying purpose" (Br. 19) ignores the fact that several
provisions of the Victims of Crime Act of 1984 (of which the special
assessment provision was one section) reveal with unmistakable clarity
that assisting victims was the principal purpose of the Act.  See,
e.g., Pub. L. No. 98-473, Section 1402, 98 Stat. 2170 (establishing
the "Crime Victims Fund");  Section 1403, 98 Stat. 2171 (criteria for
"crime victim compensation");  Section 1404, 98 Stat. 2172 (criteria
for "crime victim assistance").  To the extent that respondent
suggests that the special assessment provision, which was part of the
Victims of Crime Act (Section 1405, 98 Stat. 2174) and integrally
related to the other provisions, should be viewed in isolation from
the other provisions of the Act, his argument is contrary to the
"fundamental" axiom that a "section of a statute should not be read in
isolation from the context of the whole Act." Richards v. United
States, 369 U.S. 1, 11 (1962).

   Respondent also suggests that the special assessment provision is a
"Bill() for raising Revenue" because it does not directly benefit
those who pay the assessment.  Resp. Br. 20-23.  Here, too,
respondent's theory is unsupported by this Court's precedents.
Contrary to respondent's contention, Nebeker does not support his
proposed "relationship" test.  In Nebeker, this Court emphasized that
the nation as a whole benefited from the legislation at issue, and the
fee was imposed only on banks.  The language of the Origination Clause
contains no suggestion that the relationship between the beneficiaries
of legislation and the persons who pay a fee incident to that
legislation bears on the question whether a particular bill is one
"for raising Revenue."

   Finally, respondent maintains that the special assessment cannot be
viewed as penal in nature.  Resp. Br. 23-26.  Respondent contends that
the purpose of the special assessment provision is simply to impose a
tax on convicted persons.  The assessment, however, is imposed for
commission of a crime;  it varies according to whether the crime is a
felony or a misdemeanor;  it is imposed in the same manner as a
sentence;  a separate assessment is imposed for each count of
conviction;  and the assessment is referred to in the statute as a
"penalty assessment." /6/ Under these circumstances, it is clear that
Congress intended the special assessment to be exacted roughly
according to the seriousness of the defendant's misconduct and to
serve, at least in part, a penal purpose.

   b. In our opening brief, we explained that the special assessment
provision should be regarded as having "originated" in the House of
Representatives, because the House was the first chamber to pass the
measure ultimately enacted into law.  The House passed the special
assessment provision on October 2, 1984, seven days after it passed
H.R.J. Res. 648, 98th Cong., 2d Sess., the continuing appropriations
resolution;  then, on October 4, 1984, the Senate combined the
House-passed special assessment provision with the House-passed H.R.J.
Res. 648.  After H.R.J. Res. 648 emerged from conference containing
the special assessment provision, the House passed that conference
version on October 10, the Senate passed it on October 11, and the
President signed it on October 12.  Gov't Br. 23-24;  Pet. 9, 17-18.

   Respondent does not dispute this chronology.  Resp. Br. 26-27.
Instead, he argues for a rigid rule that the House of Representatives
may be found to "originate" legislation for the purposes of the
Origination Clause only if the House is the first chamber to place the
provision in question in the particular bill that is ultimately
enacted.  By virtue of the chronology previously set forth (i.e.,
because the Senate took the language of the special assessment
provision from an earlier House bill and inserted it into H.R.J. Res.
648, which was thereafter enacted into law), respondent contends that
the special assessment statute must be regarded as having originated
in the Senate, even though the bill from which the language was taken
and the bill into which it was inserted both originated in the House.
Resp. Br. 27-28.  /7/ Respondent argues that this rule is necessary
for two reasons -- ease of administration and preservation of existing
House practices.  Neither reason withstands scrutiny.

   This Court has never suggested that ease of judicial administration
justifies a rigid approach to Origination Clause analysis.
Recognizing the complexity and delicacy of judicial action in this
field, the Court in Nebeker explicitly disavowed any attempt to
formulate a definition of "Bills for raising Revenue" in order to
simplify the process of judicial review.  See Nebeker, 167 U.S. at 202
("What bills belong to that class is a question of such magnitude and
importance that it is the part of wisdom not to attempt, by any
general statement, to cover every possible phase of the subject.").
Similar caution should inform the judicial approach to the question of
origination.  Rather than adopting respondent's so-called "bright line
test" (Resp. Br. 27), the Court should recognize that a variety of
House actions may satisfy the constitutional requirement of
"origination." Ease of administration is hardly an adequate
justification for refusing to recognize House origination when the
House is the first chamber to propose and pass a piece of legislation,
the Senate combines that legislation with another House-originated
measure, and the Senate and House then pass the consolidated bill.
Surely no value or principle informing the Origination Clause
justifies ignoring the fact that the House was the first chamber to
pass the provision that became law.  To override the House's judgment
that no Origination Clause problem was presented in a particular
situation should require more than the administrative convenience
provided by a rule that restricts a court to looking to the first time
the final statutory language was included in the particular numbered
bill ultimately enacted by both Houses.

   Respondent errs in asserting that our proposed test for determining
origination would tie the House's hands.  We do not suggest that
"origination" may be found only in a sequence such as occurred in this
case.  Nor, contrary to respondent's contention (Br. 28), do we
suggest that there is any Origination Clause flaw in the established
practice by which the House refuses to consider revenue legislation
initiated by the Senate but passes identical legislation and sends it
to the Senate.  Rather, we submit that House "origination" may be
satisfied through a variety of methods, including that procedure and
including a procedure such as the one in this case, where the House is
the first body to pass a provision and the Senate incorporates the
House proposal into a different, separately numbered bill.  That
approach to origination questions is consistent with the particular
caution that must accompany judicial involvement in Origination Clause
determinations, as well as the caution and restraint exercised by
courts in considering challenges to the constitutionality of statutes.

   There is an irony about respondent's "bright line" test and his
argument about why that test is needed.  In the first half of his
brief, he argues that the Origination Clause does not pose a problem
of judicially manageable standards, and that (in part by virtue of
that reason) the Court should find the Origination Clause challenges
to be justiciable.  In the second half of his brief, respondent
proposes a "bright line" test that will make Origination Clause
challenges more suitable for adjudication, even though it may not be
responsive in many cases to the realities of the origination of
legislative proposals.  See Resp. Br. 27-28 ("Unless the Court follows
this bright line test for determining the origination of a bill, there
could be endless confusion over who thought of an idea first and who
drafted the language.").  The fact that respondent feels compelled to
devise a new, mechanical test for origination that will exclude cases
such as this one, in which the precise language ultimately enacted
originated in the House, is strong support for the proposition that
enforcing the Origination Clause is not a task for which courts are
well suited.

   c. In our opening brief, we explained that this Court should not
find the Senate's amendment impermissible, even if it is determined
that the special assessment provision was a "Bill() for raising
Revenue" and that it "originated" in the Senate, because such a
conclusion would thrust this Court into the midst of the longstanding
congressional dispute about whether appropriations bills are within
the scope of the Origination Clause.  Gov't Br. 26-29.  /8/ Although
respondent contends that "the resolution" of this debate "is not
required" here (Resp. Br. 31), his argument continues to rest on the
proposition that "none of the provisions of H.R.J. Res. 648" -- which
of course included many appropriations provisions -- "were 'revenue
raising.'" Resp. Br. 30.  See also id. at 31 ("Nothing in H.R.J. Res.
648 as it originated in the House of Representatives was revenue
raising within the meaning of Art. I, Section 7, cl. 1.").  Thus, his
protestations notwithstanding, respondent's challenge to the Senate's
amendment requires a holding that H.R.J. Res. 648 was not a "Bill()
for raising Revenue," and thus that appropriations bills are not such
bills.  /9/

   This Court should not endorse either position in the longstanding
battle between the House and Senate over the status of appropriations
bills;  instead, the Court should hold that, in view of that venerable
controversy, a Senate amendment to a House bill that contains
appropriations provisions will not be invalidated as an impermissible
exercise of the Senate's amendment power under the Origination Clause.
 Respondent suggests that this position is itself an endorsement of
the House position that appropriations bills are "Bills for raising
Revenue." Resp. Br. 30-31.  There is a fundamental difference,
however, between the reasons for refusing to invalidate legislation as
unconstitutional, which may rest on a variety of prudential concerns,
and the reasons compelling a finding of unconstitutionality.  A
refusal to intrude into this congressional debate would be consistent
with principles of judicial deference and restraint.  /10/ A decision
that the Senate amendment here was impermissible, in contrast, would
inject this Court into an internal congressional battle, and would be
inconsistent with those principles.

   For the foregoing reasons, and for the reasons stated in our
opening brief, the judgment of the court of appeals should be
reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JANUARY 1990

   /1/ See, e.g., 125 Cong. Rec. 31,517 (1979) (Rep. Dingell) ("The
House has the responsibility to protect its constitutional
prerogatives.  Therefore, it is necessary to send the bill * * * back
to the Senate.");  39 Cong. Rec. 2731 (1905) (Rep. Payne) ("Mr.
Speaker, as the Members know, this is no new question in the House of
Representatives, and the House has uniformly insisted on its right
guaranteed to it by this clause of the Constitution of the United
States * * * .");  7 Cong. Rec. 4607 (1878) (Rep. Wood) ("(T)his House
should assert its prerogatives against the aggressions of the
Senate.");  Cong. Globe, 41st Cong., 3d Sess. App. 268 (1871) (Rep.
Garfield) (House's Origination Clause role "has been asserted again
and again in the various Congresses from the First till now;  and
though the Senate has often attempted to invade this privilege, yet in
no instance has the House surrendered its right whenever that right
has been openly challenged * * * .");  9 Cong. Deb. 721 (1833) ("Mr.
WEBSTER said, the constitutional question must be regarded as
important;  but it was one which could not be settled by the Senate.
It was purely a question of privilege, and the decision of it belonged
alone to the House.");  1 Annals of Cong. 597 (J. Gales ed. 1789)
(Rep. Livermore) ("The power of originating bills within these walls,
I look upon as a sacred deposit(), which we may neither violate nor
divest ourselves of * * * .").

   Even the 1925 debate on which respondent relies (Br. 8-9 n.7)
contains similar expressions of the necessity of House enforcement.
See, e.g., 66 Cong. Rec. 2942 (1925) (Rep. Green) ("(T)he House of
Representatives is the final judge and arbiter as to whether its
privileges have been infringed upon.  This principle was agreed to
away back in Webster's time.");  id. at 2947 (Rep. Tucker) (House has
"the duty of resisting any tax to be put upon the people unless * * *
(the House of Representatives) first initiates it.").

   /2/ Respondent argues that the Framers attached great importance to
the Origination Clause.  Resp. Br. 13-14.  The views of the Framers,
however, were varied (see Gov't Br. 13-14 n.12) and in any event the
conclusion that a particular constitutional issue presents a
nonjusticiable political question does not mean that the
constitutional provision in question is unimportant.  Baker v. Carr,
369 U.S. at 210-226.

   /3/ In our opening brief, we suggested that an independent reason
for finding an Origination Clause challenge to be a political question
is the difficulty of formulating judicially manageable standards.
Gov't Br. 14-16.  Respondent replies (Br. 9-11) that the standards for
evaluating Origination Clause claims will be no more difficult to
ascertain than for other constitutional issues, and to illustrate he
points to decisions upholding the Tax Equity and Fiscal Responsibility
Act of 1982 against Origination Clause challenges.  In fact, although
no court struck down that statute on Origination Clause grounds, the
courts followed a variety of different paths to the same result.  See
Gov't Br. 15 n.14.  This case itself demonstrates that even in fairly
clear cases, as we believe this one to be, the courts can reach
conflicting conclusions as to whether a particular bill satisfies the
Origination Clause.

   /4/ In addition to the decisions from the Second, Third, Fifth, and
Sixth Circuits cited in our opening brief (at 19 n.18), the Tenth
Circuit has now also concluded that the special assessment is not a
bill for raising revenue.  United States v. King, No. 89-3037 (Dec.
12, 1989);  see also United States v. Newman, 889 F.2d 88 (6th Cir.
1989) (victims assistance purpose).

   /5/ See Nebeker, 167 U.S. at 203 ("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.").

   /6/ Although respondent maintains that "(t)he statute does not
refer to penalty assessments" (Br. 3, 26), the Victims of Crime Act of
1984 uses precisely that language at two points.  See Pub. L. No.
98-473, Section 1402(b)(2), 98 Stat. 2171 (referring to the "penalty
assessments collected under section 3013 of title 18 of the United
States Code");  Section 1405, 98 Stat. 2174 (title of special
assessment section is "PENALTY ASSESSMENT").

   /7/ Respondent has abandoned the analysis of the court of appeals,
which suggested (Pet. App. 13a-14a) that the special assessment
provision that was enacted into law originated in the Senate because
it derived from a Senate bill, S. 2423, 98th Cong., 2d Sess., which
passed the Senate in August 1984.  Respondent nevertheless maintains
that "Senator Heinz introduced the original special assessment
provision on March 8, 1983" in S. 704, 98th Cong., 1st Sess. Resp. Br.
28 n.27.  In fact, however, S. 704 was very different in content and
structure from the provision ultimately enacted;  H.R. 3498, 98th
Cong., 1st Sess., in contrast, which was introduced by Congressman
Rodino in 1983, is extremely close to the ultimately enacted version
of the special assessment.  See Gov't Br. 25 n.25.

   /8/ Respondent's suggestion (Resp. Br. 29 n.29) that the amendment
issue has not been properly raised and preserved is incorrect.  The
issue was explicitly addressed both by the court of appeals (Pet. App.
14a) and the district court (Pet. App. 22a n.3), and it is encompassed
in the question presented in our petition.

   /9/ To the extent respondent suggests that only a "portion" of the
amended statute need be examined (Br. 29-30), the suggestion conflicts
with this Court's analysis of the Senate's amendment powers.  See
Rainey v. United States, 232 U.S. 310, 317 (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.'").

   /10/ Cf. Matthews v. Diaz, 426 U.S. 67, 81-82 (1976) ("The reasons
that preclude judicial review of political questions also dictate a
narrow standard of review * * * in the area of immigration and
naturalization.") (footnote omitted).