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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 FOURTEENTH CONGRESS 

SECOND SESSION 

JANUARY 13, 2016 

Serial No. 114–54 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

RON DeSANTIS, Florida, Vice-Chairman 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

JANUARY 13, 2016 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

WITNESSES 

Todd F. Gaziano, Executive Director of the D.C. Center, Senior Fellow in 

Constitutional Law, Pacific Legal Foundation 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Paul D. Kamenar, Esq., Constitutional and Public Policy Lawyer 

Oral Testimony ..................................................................................................... 48 

Prepared Statement ............................................................................................. 51 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 7 

OFFICIAL HEARING RECORD 

UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental Material submitted by Paul D. Kamenar, Esq., Constitutional and 

Public Policy Lawyer. This material is available at the Subcommittee and can also 

be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104322. 

(1) 

THE ORIGINAL MEANING OF THE 

ORIGINATION CLAUSE 

WEDNESDAY, JANUARY 13, 2016 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:05 a.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, DeSantis, Goodlatte, King, 

Gohmert, and Cohen. 

Staff Present: (Majority) John Coleman, Counsel; Tricia White, 

Clerk; (Minority) James J. Park, Chief Counsel; and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. Without objection, the Chair is authorized to declare a recess of the Committee at any time. 

Thank you all for being here. The first clause of Article I, Section 

VII of the Constitution provides 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 

clause, commonly referred to as the Origination Clause, was designed by the Constitution’s Framers to bring the power to tax closer to the people by giving control over initiating revenue legislation 

to their immediate Representatives, Members of the House of Representatives, who are elected every 2 years. The Framers’ viewed 

the Origination Clause as a critical protection against government 

abuses and the creation of an aristocracy in America. 

The power to tax is one of the most fundamental operations of 

a sovereign and one of the most dangerous to liberty. As Chief Justice John Marshall famously observed, the power to tax involves 

the power to destroy. 

Simply put, the Origination Clause, the origination of revenue 

bills is not a small matter or marginal issue. Indeed, the need for 

a just tax system was the moral justification for our entire War of 

Independence. Its importance was expressed through the Virginia 

House of Burgesses, the Stamp Act Congress, and the First Continental Congress, all of whom petitioned the Crown and the Parliament in England for redress of their tax grievances. 
2 

It was with these realities in mind that the Origination Clause 

of our Constitution was written. The clause was, according to Massachusetts convention delegate Elbridge Gerry, ‘‘the cornerstone of 

the accommodation’’ of the Great Compromise of 1787. Thus, without the Origination Clause at the core of the Great Compromise, 

the Constitution as we know it today would not have come into 

being. 

When the Framers wrote the Constitution, they knew it was vital 

that the power to raise and levy taxes originate in the people’s 

House whose Members are closest to the electorate with 2-year 

terms rather than in the Senate whose Members sit unchallenged 

for 6-year terms. The Senate also does not proportionally represent 

the American population, and they already enjoy their own and 

unique and separate Senate powers granted to them in the Constitution. 

As George Mason observed during the debate in the Constitutional Convention, ‘‘Should the Senate have the power of giving 

away the people’s money, they might soon forget the source from 

whence they received it. We might soon have an aristocracy.’’ 

I have called today’s hearing to examine the roots of the Origination Clause, its original meaning and purpose, and to see where the 

Origination Clause stands today after 225 years after the Great 

Compromise. I am concerned that over time the original meaning 

of the clause has been set aside, and the protections the clause affords to American taxpayers have been severely eroded. Instead of 

a robust check on the Federal Government over the people, I am 

troubled that the clause has become a mere formality in practice, 

a formality that may be dispensed with as easily as the Senate taking any bill that originated in the House and striking the entire 

text of the bill and replacing it with a ‘‘bill for raising revenue no 

matter how nongermane the Senate’s amendment is to the House 

original passed measure.’’ A glaring example would be when the 

Senate struck everything but the bill number in the ACA legislation, which was a completely nongermane bill, and inserted the entire Affordable Care Act, which the Supreme Court later specifically designated as a tax since it raised 17 different taxes and was, 

in fact, the largest tax increase in the history of the Republic. 

This sort of procedure blatantly ignores the Framers’ intent, and 

if allowed to stand, it renders the Origination Clause of our Constitution a dead letter. We await with great concern the Supreme 

Court’s decision as to whether they will allow that to happen as 

they ponder the review of the case on this topic, Sissel v. HHS. 

Enforcing the Origination Clause is of critical concern to this 

House and especially this Constitution Subcommittee. If we as 

Members of the House who took a solemn oath to support and defend the Constitution, including its Origination Clause, fail to defend this right and responsibility as the immediate Representatives 

of the people and those most accountable to them, we dishonor and 

fundamentally abrogate our sworn oath to support and defend the 

Constitution of the United States from all enemies, foreign and domestic. 

I thank the witnesses for their testimony and yield to the Ranking Member, Mr. Cohen, for his opening statement. 

Mr. COHEN. Thank you, Mr. Chair. 
3 

Last night was a great opportunity to hear the President’s last 

State of the Union speech. Unfortunately, it will be his last, but it 

was probably his greatest, inspiring us as to what we as Americans 

should be doing to move our country forward, inspire our citizens, 

and protect them against fears being generated and concerns. And 

he reiterated the importance of the Affordable Care Act and how 

much good it has done and how well-received it has been. But, once 

again, in this Committee, I have to play the Bill Murray role. It’s 

Groundhog’s Day early. 

This hearing on The Original Meaning of the Origination Clause 

is a repeat of a hearing we had 2 years ago, almost 2 years ago. 

And we have the same majority witnesses before us, so they’re getting their act down. That’s good. They’ve got a second act. But even 

though they have a second act, in court, they’re 0 for 3. In the NBA 

you’d be sent down to the developmental league, but, no, you’re still 

here in the major leagues, even though you’re 0 for 3. 

It appears no Federal judge has so far considered the merits of 

this latest attack on the Patient Protection and Affordable Care 

Act. The Origination Clause, attorneys can argue about anything 

and everything. I’m an attorney, and you can hire me for either 

side, and I can charge. It’s a great deal. But the reality is the 

Origination Clause ensures that the House—important—people’s 

House, has the first say when it comes to bills raising revenue, and 

it’s the Chamber most closest to the people. But at the same time, 

it’s the same Chamber that it was when the Origination Clause 

was drafted because at that time, of course, the Senate was made 

up of folks that could get the votes of the State legislatures. And 

they were the States’ guys, and they got picked by—sometimes it 

was the Governor; sometimes it might have been the Speaker of 

the House—but basically they weren’t elected by the people, and 

they were chosen by just general assembly. Now they’re elected. So 

it’s kind of a different game. 

We have an evolving Constitution, and we change and we don’t 

go back to what somebody necessarily said because things change, 

but the Constitution reflects political compromises made by the 

Framers to ensure competing interests of various States and regions were addressed, even though they changed when we elected 

the Senate. Foremost among these was the compromise of Congress 

itself, and it gave the House a little more emphasis because it was 

the people’s House, and the Senators were the boss’ House, so to 

speak. 

The Origination Clause reflects that balance, and it gave the 

House ‘‘exclusive authority to originate bills’’ for raising revenue. 

That clause gave the Senate broad leeway to, ‘‘propose or concur 

with amendments as on other bills.’’ That balance has worked for 

two centuries, and the House prerogative to originate all bills relating to revenue is established and respected. At the same time, the 

Senate’s authority to amend is established and respected. 

The majority witnesses, however, believe the Origination Clause 

is in peril, and particularly, they allege that Congress did an end 

run around the Origination Clause when it passed the Affordable 

Care Act and, in particular, its individual mandate and the related 

shared responsibility payment. 
4 

As will be made more evident during our discussion today, neither the facts nor the law support that assertion. Sometimes you 

argue the facts. Sometimes you argue the law. Now you just kind 

of argue politics. While the Affordable Care Act is arguably not 

even a bill for raising revenue within the Origination Clause’s 

meaning, even if the clause applied to the act, it is clear the act 

met the clause’s requirements. 

The vehicle for enacting what ultimately became the Affordable 

Care Act was a tax bill that originated in the House which the Senate then amended by substituting language of the Affordable Care 

Act. In so doing, the Senate clearly acted within its authority within the Origination Clause to propose or concur with amendments 

to a House revenue bill as on other bills. 

I question the need for today’s hearing when lower courts have 

already spoken and when the Supreme Court may be about to 

speak on this issue. This hearing serves little purpose other than 

to once again attack the Affordable Care Act, which the majority 

party has tried to repeal on 62 occasions and constantly failed, and 

I do enjoy the little engine that could, but that’s kind of what we’re 

experiencing here in Congress. 

The ACA has allowed almost 18 million Americans to get health 

insurance, including more than 236,000 Tennesseans who have received health insurance through ACA’s changes, establishing the 

lowest rate of uninsured in 50 years. It ended discrimination by insurers against those with preexisting conditions, including women, 

allowed young adults under 26 to remain covered by their parents’ 

insurance, benefitting 2.3 million Americans, encouraged better, 

more efficient delivery of quality health care, and ensured that 

most premium dollars are spent on health care, not profits. 

I was proud to have voted for the Affordable Care Act and proud 

to vote 62 times not to go into the political demagoguery of trying 

to repeal what is one of our Nation’s best efforts at joining the rest 

of the industrialized and civilized Nations in having health care for 

its people, saying that you have a right to exist and a right to live, 

and we should let every citizen have that opportunity. 

President Obama’s signature achievement is one I am proud to 

have voted for and will strongly defend against all attacks, including those today in a Committee which I wish we were hearing voting rights; I wish we were hearing civil rights; I wish we were 

hearing opportunities to extend rights to people rather than taking 

health care away from them. I yield back the balance of my time. 

Mr. FRANKS. And I thank the gentleman. 

And I now yield to the Chairman of the Committee, Mr. Goodlatte from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I appreciate your holding this hearing. You know, listening to the 

remarks of the gentleman from Tennessee, I’ve been reading the 

17th Amendment to the United States Constitution, in fact, rereading the 17th Amendment to the United States Constitution, 

which provided for the direct election of United States Senators, 

and I can’t see anything in this amendment whatsoever that says 

that the interpretation of the Origination Clause, which is provided 

for with direct, clear language in the United States Constitution, 

is in any way changed by the 17th Amendment. So our Constitu-
5 

tion doesn’t evolve. It gets amended by specific black-letter language, and that language doesn’t provide for any such change. And 

I would hope that regardless of what position people take on the 

substantive issues that come before the Congress, including health 

care and the Affordable Care Act, that people would not attempt 

to change the meaning of the Constitution in order to accomplish 

their current policy goals. The ends should not justify the means 

of surrendering power from the House to the United States Senate. 

This document has not evolved that power from the House to the 

Senate, and this Committee and this Congress, this House of Representatives, should do everything in its power to make sure that 

it does not evolve away from the people’s House so that in the future, when we address issues that are important to Members of the 

House representing their constituents on either side of the aisle, 

that we do not find ourselves saying: Well, it’s okay now. Let 

things start off in the United States Senate instead of in the 

House, even though the Constitution clearly provides for that. 

The Origination Clause was the result of a contentious dispute 

at the Constitutional Convention between big States and small 

States over the structure and powers of the Federal Government. 

The less populated small States feared that the Senate, where each 

State would have equal representation—still does—would have little control over raising revenue. Indeed, all versions of the Origination Clause that prohibited the Senate from amending revenueraising bills were vigorously opposed by small State delegates. On 

the other hand, the Framers understood the importance of keeping 

the power to tax close to the people. This dispute was ultimately 

resolved by providing the Senate with the power to propose or concur with amendments as on other bills. 

Unfortunately, the exact scope of the Senate’s power to amend 

House bills under this clause remains ambiguous today. I hope this 

hearing will help clarify the extent of the Senate’s authority to propose or concur with amendments on revenue bills in addition to examining the original meaning of the term bills for raising revenue. 

Nevertheless, it’s clear that Members of the House of Representatives have a duty to safeguard its constitutional prerogative in 

order to protect individual liberty from the dangers of concentrated 

power, and that duty is distinct from the Senate. In Federalist 58, 

Madison stated: 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 complete 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. 

It’s clear from Madison that the Origination Clause was designed 

to be one of the many important constitutional tools that the House 

uses against the overgrown prerogatives of other branches of government or even the Senate. Therefore, it is important that we do 
6 

not disregard this duty, and I thank our witnesses for coming, and 

I look forward to their testimony. 

I yield back. Thank you, Mr. Chairman. 

Mr. FRANKS. And I thank the Chairman. 

Mr. COHEN. Mr. Chair, Mr. Conyers won’t be here today. I would 

like to introduce his remarks for the record. 

Mr. FRANKS. Without objection. 

[The prepared statement of Mr. Conyers follows:] 
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Mr. FRANKS. And, without objection, other Members’ opening 

statements will be made part of the record as well. 

So now I will introduce our witnesses. Our first witness is Todd 

Gaziano. Mr. Gaziano is executive director of the D.C. Center and 

senior fellow in constitutional law at the Pacific Legal Foundation. 

Prior to joining Pacific Legal Foundation, he served in the Justice 

Department’s Office of Legal Counsel, was chief Subcommittee 

counsel in the U.S. House of Representatives, and was the founding 

director of Heritage Foundation’s Center for Legal and Judicial 

Studies. From early 2008 to December 2013, he served as an appointee of the House of Representatives on the U.S. Commission on 

Civil Rights. 

Our second witness is Elizabeth Wydra. Ms. Wydra is Chief 

Counsel of the Constitutional Accountability Center. She frequently 

participates in Supreme Court litigation and has argued several 

important cases in the Federal courts of appeals. She was previously a supervising attorney and teaching fellow at the Georgetown University Law Center Appellate Litigation Clinic. After 

graduating from law school, she clerked for Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit. 

Our final witness is Paul Kamenar. Mr. Kamenar is a Washington, D.C., attorney who provides legal counsel on legal, regulatory, and public policy matters, and guest lectures at the U.S. 

Naval Academy on constitutional and national security law. He is 

also a senior fellow of the Administrative Conference of the United 

States and a member of its Committee on Judicial Review. Mr. 

Kamenar was formerly a clinical professor of Law at George Mason 

University Law School, an adjunct professor at Georgetown University Law Center, and senior executive counsel at the Washington 

Legal Foundation. 

Now each of the witnesses’ written statements will be entered 

into the record in its entirety, and I would ask each witness to 

summarize his or her testimony in 5 minutes or less. To help you 

stay within that time, there’s a timing light in front of you. The 

light switch will switch from green to yellow, indicating that you 

have 1 minute to conclude your testimony. When the light turns 

red, it indicates that the witness’ 5 minutes have expired. 

Before I recognize the witness, it is the tradition of the Subcommittee that they be sworn. So if you’ll stand to be sworn, 

please. 

Will you raise your right hand? 

Do you solemnly swear that the testimony you are about to give 

will be the truth, the whole truth and nothing but the truth, so 

help you God? 

You may be seated. Let the record reflect that the witnesses answered in the affirmative. I want to welcome all of you here, and 

I now recognize our first witness, Mr. Gaziano, and please turn on 

that microphone before you start here. 

TESTIMONY OF TODD F. GAZIANO, EXECUTIVE DIRECTOR OF 

THE D.C. CENTER, SENIOR FELLOW IN CONSTITUTIONAL 

LAW, PACIFIC LEGAL FOUNDATION 

Mr. GAZIANO. Chairman Franks, Chairman Goodlatte, and other 

distinguished Members of the Subcommittee, thank you for inviting 
15 

me to testify again on this topic. I’m proud to be part of the Pacific 

Legal Foundation, which is representing Matt Sissel in his constitutional challenge to ObamaCare. This hearing and the Sissel 

case focus on the Framers’ most important check on Congress’ 

power to tax, which some today regard as an annoyance to be circumvented with clever tricks. There was similar disdain for the 

constitutional rules for legislation in the 1970’s that led to over 161 

House and Committee veto bills. Luckily, the Supreme Court understood that the legislative rules that were set forth in the Constitution protected individual rights and not just congressional prerogatives. 

The Supreme Court in INS v. Chadha held that such finely 

wrought and exhaustively considered procedures for legislation 

could not be modified by modern designs and modern practices. 

The Court stressed that certain prescribed steps were still necessary to ‘‘provide enduring checks on each branch and to protect 

the people from the improvident exercise of power.’’ The Court then 

struck down all those 160 laws or provisions thereof to protect our 

individual liberty. 

Well, I am delighted to be here today to testify on a similar protection of our individual liberty and to do so with Paul Kamenar, 

who I’ve worked with before, and with Elizabeth Wydra, who I believe has written about the best opposing view of anyone I’ve ever 

written. But as gifted a scholar as she is, even she can’t defend the 

indefensible. 

My friend does seem to concede in a written testimony that the 

D.C. Circuit’s newly minted primary purpose test is invalid. The 

four-judge dissent in the D.C. Circuit warned that this new test 

would allow the Senate to originate taxes by simply characterizing 

them as having weightier nonrevenue purposes. For example, the 

Senate could enact and originate a gas tax in a bill that promotes 

the environment. The founding generation did not think they had 

erected an optional limitation so easily defeated with the right incantation. 

Now turning to the text of the Origination Clause itself for its 

original meaning, it fails to satisfy the clause for two independent 

reasons. First, the Service Members Home Ownership Tax Act was 

not a bill for raising revenue within the meaning of the clause because it only cut taxes. Other provisions which increased penalties 

and accelerated filing fees to make it budget neutral were not taxes 

within the meaning. I will be glad to elaborate on that, but the result of that is that the Senate could not amend that bill at all with 

any additional taxes. 

Second, and I think this goes more to Chairman Goodlatte’s 

question, even if the House bill was a bill for raising revenue within the clause, the Senate healthcare bill was not a germane amendment and thus not constitutional. In Flint v. Stone Hill, the Supreme Court said that a Senate amendment must be germane to 

the revenue bill that originated in the House. It is irrelevant 

whether the Senate’s practice allows any amendments on nonrevenue bills. There was a germaneness requirement in the Articles 

of Confederation Congress, and that helped form the original understanding of the Senate’s limited role to amend a House revenue 

bill. 
16 

Second, the Senate’s hotly disputed practice with regard to revenue bills in the late 19th century is almost completely worthless 

in determining the original public meaning of the clause, and it’s 

especially ironic to rely on the Senate’s views. It’s like deferring to 

the foxes for the rules for raiding the henhouse. 

And, finally, the Supreme Court’s germaneness requirements, 

which have been followed by numerous courts, is absolutely required to properly give the Origination Clause any meaning whatsoever. If the Senate merely had to wait for a House revenue bill 

of some type and then could substitute a completely different omnibus tax code, which could happen several times a year, that would 

render the clause empty. Interpretations of clauses that render 

them meaningless are an insult to the framing generation and any 

rational basis of law. 

I want to, since my time is limited, skip to one interpretation 

that Madison supposedly was quoted as saying that the Senate 

under the Origination Clause could gut and substitute a bill. That’s 

kind of a minority view. It’s very contrary to George Mason, most 

of the other Framers, and especially Story’s interpretation that said 

that the Senate’s amendment power would only be limited to a single line of text or a trifle to fix error. But even if Madison was 

right, that doesn’t save ObamaCare because it might be constitutional in some cases to have a complete substitute language, but 

the bill still has to be—the Senate amendment still has to be germane to the House bill. And Madison didn’t say otherwise, and no 

Framer said otherwise. If they had said otherwise, the Constitution 

would not have been ratified. There is simply no argument that the 

Senate’s healthcare bill with its 20 historically large taxes is germane to the 6-page servicemembers housing bill. There is no constitutional precedent whatsoever for that position. Thank you, Mr. 

Chairman. 

[The prepared statement of Mr. Gaziano follows:] 
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Mr. FRANKS. And thank you, sir. 

I now recognize our second witness, Ms. Wydra, and make sure 

that microphone is on. 

TESTIMONY OF ELIZABETH B. WYDRA, CHIEF COUNSEL, 

CONSTITUTIONAL ACCOUNTABILITY CENTER 

Ms. WYDRA. Good morning. Thank you, Chairman Franks, Ranking Member Cohen, and Members of the Subcommittee, for inviting 

me to testify today. It’s a pleasure and an honor. 

As the Chairman noted, the Origination Clause provides 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 the tax and history of the Constitution make 

clear, this provision was intended to strike a careful balance between the two Houses of Congress, giving the House the exclusive 

authority to propose legislation affecting the Nation’s purse strings 

while ensuring that the Senate retained the right to amend such 

legislation, just as it could amend all other bills. This includes the 

strike-and-replace method of amendment used by the Senate in the 

ACA, as has been discussed, and more generally, since the founding. As Thomas Jefferson explained in his Manual of Parliamentary Procedure he wrote for the Senate in 1801, ‘‘Amendments may 

be made so as to totally alter the nature of the proposition. A new 

bill may be engrafted by way of amendment on the words, be it enacted.’’ Does the existence of the strike-and-replace amendment 

method of Senate amendment contemplated in the second half of 

the Origination Clause mean that the power given to the House in 

the first half of the Origination Clause to originate revenue bills 

has no meaning? Absolutely not. But don’t take my word for it, 

even though I appreciate Mr. Gaziano’s kind words. 

Let’s listen to James Madison. At Virginia’s ratifying convention, 

he noted that even though critics said that the Senate could strike 

out every word of the bill except the word ‘‘whereas’’ or any other 

introductory word and might substitute words of their own, the 

clause nonetheless kept the Nation’s purse strings in the hands of 

the House because the House was free to reject the Senate’s 

amendments to revenue bills. And in the Federalist Papers, Madison emphasized the importance of the Origination Clause by noting 

that the House had the power to propose as well as refuse when 

it came to the power of the purse. The Origination Clause thus 

makes the House the first and the last word on all revenue bills. 

Throughout history, the House has defended its constitutional 

prerogatives with vigor, mostly through the blue-slip process 

through which violations of the Origination Clause are raised and 

remedied. 

My written testimony goes through in greater detail the original 

meaning of the Origination Clause, so for now, I will turn to the 

legal challenges claiming that the Affordable Care Act violates this 

clause. Every judge to have considered the merits of this claim on 

the merits has rejected it. As stated plainly by conservative superstar Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals, 

the Affordable Care Act complied with the Origination Clause. As 

he went on to write: The act, in fact, originated in the House, as 

required by the clause in H.R. 3590, which was itself a bill to raise 
35 

revenue, and although the original House bill was amended and its 

language replaced in the Senate, such Senate amendments are permissible under the clause’s text and precedent. 

Reinforcing the wisdom of these judges who have found that the 

ACA complied with the Origination Clause, it is important to note 

that at the time the ACA was making its way through Congress, 

no blue-slip objection was made on Origination Clause grounds in 

the House, despite vocal and vigorous opposition by many critics of 

the bill, some of whom are here today, on numerous other grounds. 

The fact that no Member of the House filed a blue slip on the 

Origination Clause ground is not constitutionally dispositive of the 

issue, but it does confirm what the application of constitutional text 

and history and court precedent show, that the ACA was enacted 

consistent with the requirements of the Origination Clause. 

As both a citizen and a constitutional lawyer, I applaud the Committee’s interest in the vitality of the Origination Clause. I also 

would applaud a hearing on voting rights. The right to vote is a 

foundational right in our constitutional democracy, and I am grateful for the opportunity today to talk about the original meaning of 

this important provision of our Constitution. But the clause remains strong. Today the House remains as it has since the founding, the first and last word on all revenue bills, and it continues 

to defend its constitutional prerogatives through the blue-slip process when any Senate bills that might arise infringe on its Origination Clause authority. 

The fact that no one filed a blue slip to try to stop the ACA on 

Origination Clause grounds is not because the clause has lost its 

constitutional teeth. It’s because there’s no constitutional defect in 

the act in the first place. 

Thank you again, Mr. Chairman, and Members of the Subcommittee. I look forward to your questions and a great discussion 

today. 

[The prepared statement of Ms. Wydra follows:] 
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Mr. FRANKS. And I thank the gentlelady. 

And we will now recognize our third and final witness, Mr. 

Kamenar, and please turn on that microphone. 

TESTIMONY OF PAUL D. KAMENAR, ESQ., 

CONSTITUTIONAL AND PUBLIC POLICY LAWYER 

Mr. KAMENAR. Thank you, Chairman Franks, Chairman Goodlatte, Ranking Member Cohen, and Members of the Subcommittee. 

Thank you for inviting me here again this morning to testify on 

Origination Clause as I did in April 2014 along with Mr. Gaziano. 

I want to particularly thank you, Mr. Chairman, for your continued leadership on this issue and your fidelity to your oath of office 

to support and defend the Constitution by reintroducing House 

Resolution 392 with many of your colleagues, expressing the sense 

of the House that the Affordable Care Act violates the Origination 

Clause, and by filing a friend-of-the-court brief with 45 of your colleagues in the court of appeals and the Supreme Court in the pending Sissel case. And I am very honored to have represented you 

along with my co-counsel, Joseph Schmitz, in that case, and we 

have submitted the brief and the dispositive law review article for 

the record. 

And I, finally, applaud you for holding these important hearings 

to remind the Congress, the executive, the judiciary, and the American people, of the critical importance of the Origination Clause to 

the founding of this country and how it is in jeopardy to being reduced to nullity. 

Now, the history of the clause, as we say in our brief and my 

statement, few clauses have such a rich and historical significance 

as the Origination Clause. With its origins in the Magna Carta of 

1215 A.D., the principle of taxation only by the immediate Representatives of the people was so firmly entrenched in English tradition, and its implementation on the American side of the Atlantic 

was nearly universal in colonial and early State legislatures. 

As the Chairman noted, without its guarantee, the 1787 convention and ensuing ratification debates, our Constitution would simply not exist, at least not in its present form, that the restriction 

of the Senate from originating taxes was the cornerstone of the accommodation of the Great Compromise, which satisfied the necessary number of States to ratify our Constitution. 

Let me quickly address the first part of the clause, which says 

all bills for raising revenue must originate in the House. Does the 

Affordable Care Act raise revenue? That’s an easy answer. Of 

course, it does. Yet in a remarkable decision, the majority panel the 

D.C. Circuit said that the bill which raises $500 billion in new 

taxes is not a revenue-raising bill because its primary purpose is 

to promote health care and not raise revenue. There is simply no 

logical or historical basis for this novel interpretation. As the four 

dissenting judges in Sissel noted, the act imposes numerous taxes 

to raise revenue, $473 billion in revenue over 10 years. It’s difficult 

to say with a straight face that a bill raising $473 billion in revenue is not a bill for raising revenue. 

Now, if the purpose test is correct, the Senate could easily circumvent, as Mr. Gaziano said, by attaching any kind of purpose to 

raising taxes, to protect the military, the environment, health care, 
49 

and I note that even Mrs. Wydra and her clients in the Hotze case 

agree that this is a bill for raising revenue. So we all agree on the 

first clause. There’s consensus here. 

It’s the second clause in terms of the Senate amendment power 

that we have some dispute. Now the history of that provision demonstrates that the scope of that amendment power is very limited 

and narrow, not the broad, sweeping power that allows the Senate 

here to take a 6-page bill that gives tax credits, go to the House 

where the Senate figuratively tears off the House bill number and 

pasted it on top of a 2,071-page ObamaCare bill, and said that this 

bill originated in the House. 

To summarize our main points in our brief quickly, that the 

words ‘‘originate’’ and ‘‘amendment’’ and ‘‘as on other bills’’ must be 

interpreted how the amendment process was understood at the 

time of the ratification, not subsequent 19th- and 20th-century 

practice. 

If you’ll look at the history of this amendment, the Senate power 

was actually a compromise to prevent the House from tacking on 

or smuggling in nonrevenue, nongermane measures to a revenue 

bill which would preclude the Senate from amending that, not 

being able to strip out those nonrevenue measures. So they said: 

Okay, you could amend a revenue bill with respect to the provisions there. 

Two, no one at the time thought the Senate could amend a 

House bill with a nongermane bill, let alone one that guts and replaces the House bill in its entirety. 

Three, indeed the unicameral Continental Congress in 1781 

made such amendments not in order. ‘‘No new motion or proposition shall be admitted under color of amendment as a substitute 

for a proposition under debate until it is postponed or disagreed 

to.’’ Note the phrase ‘‘under color of amendment.’’ And what’s happened here is that under a color of amendment, the Senate in this 

case actually originated the revenue-raising bills. 

Finally, James Madison, which Ms. Wydra talked—mentioned, 

the father of the Constitution, called the Senate’s power ‘‘a paltry 

right of the Senate to propose alterations to money bills.’’ And the 

fact that no one issued a blue slip is constitutionally irrelevant and 

would not make any sense anyway since Chairman Pelosi at the 

time—Speaker Pelosi would not have brought that to the House 

floor. 

Unfortunately, the dissenters in the Sissel case said that this 

gut-and-replace amendment was constitutional. Yet the three-judge 

panel, which said that this is not a bill for raising revenue said: 

No, that’s not correct; that would render the power under the 

Origination Clause ‘‘an empty formalism.’’ 

In conclusion, I’d like to quote Justice Thurgood Marshall’s citing 

Federalist 58. He said it best in the Munoz-Flores case, ‘‘Provisions 

for the separation of powers within the legislative branch are thus 

no different in kind from provisions concerning relations between 

the branches of our government.’’ Both sets of provisions safeguard 

liberty. 

And if the Supreme Court on Friday does not review and later 

reverse the lower courts in Sissel, the original meaning of the cornerstone of the Great Compromise that allow the Constitution to 
50 

*Note: Supplemental material submitted with this statement is not reprinted in this record 

but is on file with the Subommittee, and can also be accessed at: 

http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104322. 

be ratified would erode and unfortunately turn the Great Compromise into a great hoax. Thank you. 

[The prepared statement of Mr. Kamenar follows:]* 
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Mr. FRANKS. I want to thank all of the witnesses for very invigorating testimony. 

And we’ll now proceed under the 5-minute rule with questions, 

and I’ll begin by recognizing myself for 5 minutes. 

I think one of the real issues before us today is the meaning of 

the Origination Clause. And not to be the blooming obvious award 

here, but, indeed, if Ms. Wydra is correct that any misapplication 

could be corrected by a followup vote by the House when the legislation returns, that’s true of a bill that originated in the Senate in 

the first place. So, once again, if the Senate can take a House bill, 

nongermane, and strike everything and make the largest revenueraising bill in the history of the Republic into it, I have no ability 

in terms of engineering to ascertain how the Origination Clause retains any meaning whatsoever. 

And I appreciate the Ranking Member’s reference to the ‘‘Little 

Engine That Could.’’ If my grasp of that classic literature in which 

he took his reference is correct, I think it turned into the little engine that did. We can hope. 

Mr. Gaziano, in your written testimony, you state that, ‘‘like the 

guarantee of free speech, the Origination Clause guarantees a 

deeply ingrained individual right.’’ I find this point very compelling 

given that one of the ‘‘repeated injuries and usurpations’’ penned 

by Thomas Jefferson against the King of Great Britain in the Declaration of Independence was ‘‘imposing taxes on us without our 

consent.’’ 

With this in mind, who is the Origination Clause intended to 

protect? How is it intended to protect them, and who is responsible 

for ensuring that protection? 

Mr. GAZIANO. Thank you very much for the question. The Origination Clause certainly isn’t designed to protect just the prerogatives of government actors. It protects immediately current taxpayers, but it also protects any future taxpayers and those who 

may be affected by taxes. If the economy is tanked because of high 

taxes, then we are all deeply affected. But as the Supreme Court 

noted, that the legislative procedures that are set forth in the Constitution and aren’t the optional variety which you all can make 

under the rules provision, those finely wrought provisions must be 

justiciable in the courts when anyone is adversely affected by a 

law. 

Getting back to the blue slip issue, House Members did object to 

the procedures, the abbreviated procedures in the House bill. This 

is, as Mr. Kamenar alluded to, we must pass—the then Speaker’s 

statement: We must pass the bill before—to find out what’s in it. 

But moreover, Members didn’t understand that the penalty provision of the individual mandate, which is at the heart of our challenge in the Sissel case, was a tax until the Supreme Court majority said it was a tax, and that’s why the courts must remain open 

to protect our individual rights. One of the greatest expositors of 

the Constitution did analogize the Origination Clause’s protection 

to the protections of the First Amendment. That was Joseph Story. 

And just as Congress may believe that it isn’t abridging free 

speech, and it may debate a point of order, and both Houses may 

rule that it doesn’t abridge free speech, that doesn’t mean that in-
61 

dividuals whose rights are infringed by Congress’ views can’t and 

shouldn’t go to court. 

Mr. FRANKS. Well, thank you. I know it’s been suggested that our 

Constitution is evolving. It is my perspective that if this is really 

a living document, then perhaps it’s also a dead letter. My hope 

and I hope that the responsibility of this Committee is to keep the 

Constitution from evolving into vapor, and the Origination Clause 

I think is at stake in this case. 

Mr. Kamenar, if allowed to stand, what effect would the D.C. 

Circuit’s decision in Sissel v. HHS have on Federal courts’ understanding of the Origination Clause, and what effect could it have 

on Congress? 

Mr. KAMENAR. Well, the D.C. Circuit opinion right now says that 

ObamaCare was not a bill for raising revenue. That, as I said in 

my testimony, is totally ridiculous, and Ms. Wydra would agree 

with that. So it doesn’t have any impact upon this body. This body 

judges what is constitutional and what its prerogatives are. Until 

the Supreme Court rules on this, the decisions of courts of appeals 

have really no effect on what is the ultimate and final word on the 

matter. And, again, you have the dissenters ruling that this could 

be amended by the Affordable Care Act. Again, they were the dissenters, and they had no authority, judicial precedent with respect 

to the decision. 

So the short answer is that that Court’s ruling did not have any 

impact on this. It may have impact on other courts that look at 

this, and there are several pending in other courts, but each circuit 

court can judge on its own what the interpretation means. 

Mr. FRANKS. Thank you, sir. 

I’ll now recognize the Ranking Member for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chair. 

Firstly, I’d like to comment that President Obama asked us all 

to kind of be more civil and work together, and I would like to suggest that our Chairman is one of the most civil and decent fellows 

in the Congress, although there are many of them, and I thank you 

for that. 

You’re always a gentleman, and while we disagree on things, and 

sometimes I’m a bit broad-shouldered, I guess, in the way I approach things, you are always very, very nice in how you respond. 

And you taught me a lesson today. You’re right. I brought up the 

‘‘Little Engine That Could,’’ kind of like Ted Cruz brought up 

‘‘Green Eggs and Ham,’’ and in the end, of course, they sort of like 

‘‘Green Eggs and Ham.’’ So both of us brought up books that we 

didn’t really think about the actual story. But in the same object 

as Ted Cruz, it made me think about this Committee and what we 

do, and we discuss these issues about the Constitution, and it’s important that we do. And we probably, I would suggest, Mr. Chairman, maybe take up consideration of natural-born citizen. That 

might be really germane and relevant today to have a hearing on 

whether or not Senator Cruz is a natural-born citizen, as the Constitution says you must be to be President of the United States, because we could have a real terrible situation if the Republicans 

nominated somebody who couldn’t actually take the oath of office. 

And I would just submit that for your consideration. 
62 

I think that’s certainly a hearing that would be relevant, timely, 

and appropriate because his mother—he was born in Canada, and 

I understand his mother even voted in Canada. And while Canada 

is a great country, and I think Mr. Trudeau is a great guy, he 

shouldn’t be President of the United States, and he can’t be President of the United States because he is not a natural-born citizen. 

This issue is going to be decided by the Supreme Court, and I 

guess on Friday they’re going to decide whether they’re going to 

hear it or not. I think we got maybe an idea of whether it was 

going to be heard or not last night. Six Supreme Court Justices did 

what Supreme Court Justices have done for a long time, and that 

is show respect for the President and attend the State of the Union 

address. Justice Scalia and his two votes and Justice Alito failed 

to appear, and I suspect since you need four folks to get a hearing, 

that you’ll be one short, and this will be mooted. But we’ll find out 

on Friday, but I think there was maybe a little groundhog show 

yesterday in the fact that six Justices did come and respect the 

President. 

I also note—and it’s something that’s bothered me since we 

passed this bill, which is great—but people can call a bill whatever 

they want, and I appreciate the lady and gentleman who refer to 

it and Mr. Frank as he does in an always an appropriate manner, 

the Affordable Care Act, or ACA. ObamaCare we know is not really 

praising Obama. That’s a pejorative really in politics, and we can’t 

get around the fact that people want to attach it. And there’s a 

whole bunch of problems. President Obama is a great man and a 

great human being who has tried to bring the parties together and 

tried to bring this country forward, and his election was a great 

testament to breaking ceilings and showing that all people, regardless of their race, their religion, other factors other than where 

they’re born naturally, have the opportunity to be President in this 

country. It’s a great country for that reason. And he scorned people 

who use the politics of race and/or religion. 

But when we talk about ObamaCare, a lot of people are conjuring up the fact that maybe this man with this unusual name 

has some birther problem himself, which of course he doesn’t. It’s 

Senator Cruz that might, ironically enough, but Mr. Trump is right 

on that. But it’s just unfortunate that people continue to do that 

because that’s disrespect for the President and disrespect for the 

whole concept and the celebration that this country should have 

and did have in many quarters that somebody who is of African 

American parentage could become President of the United States 

and could be a great leader and a great moral force for this great 

Nation. 

So it’s been an interesting hearing. And I’d ask Ms. Wydra, is 

there anything you’ve heard today in the comments of either of 

your two compadres here that you’d like to comment on? 

Ms. WYDRA. Sure. 

First, thank you, Ranking Member Cohen for giving me the opportunity because I want to respond first to a mischaracterization 

of the brief that we filed in the Hotze case in the Fifth Circuit. 

That brief actually did not take a position on whether the ACA is 

a bill for raising revenue. We said however the Court decided that 

issue basically did not matter because it was unquestionably clear 
63 

that the Affordable Care Act did comply with the requirements of 

the Origination Clause. And, in fact, while there have been some 

disputes among the judges who heard the merits of this case about 

how those claims lose, there is universal agreement among the 

judges who have heard these cases, both conservative and liberal 

judges, that the case is a loser. 

And so I think that, you know, the Supreme Court as you mentioned, will be considering in conference this Friday. Generally, 

they don’t take up cases for review if there isn’t—this is just a general rule—if there isn’t a circuit split. There is no circuit split on 

this issue. So I think that’s important to note that, just as throughout history, the Supreme Court has not ever struck down an act 

of Congress as a violation of the Origination Clause, I don’t think 

they will do so in this case because it clearly complied with the 

Origination Clause, both halves, under the original meaning of the 

Origination Clause, under Supreme Court precedent, which was 

cited repeatedly to say that the Origination Clause does not apply 

to bills for other purposes which may incidentally create revenue. 

And I think there’s a really interesting debate which we can have 

about whether or not that test is supported by the original meaning. It really comes down to, from a textual standpoint, whether 

the Constitution’s substitution of the words ‘‘for raising revenue’’ 

for the prior language referencing bills ‘‘for raising money for the 

purposes of revenue’’ is a stylistic change or a substantive change. 

And as a Con-law nerd, I’m delighted to get into that. But the real 

point here today is that however you slice it, whichever way the 

courts rule on the actual test, the Affordable Care Act did comply 

with the requirements of the Origination Clause. 

Mr. COHEN. Thank you. So, in essence, we’re just whistling Dixie, 

and if I’m wrong in saying whistling Dixie because there was some 

other way, the Chairman will correct me as he did earlier. 

Mr. FRANKS. If you listen to the ‘‘Little Train That Could,’’ he 

was whistling Dixie too. 

I now recognize the gentleman from Iowa, Mr. King, for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony. I point out that my 

good friend from Tennessee can sometimes be a bit of an ornery agitator and slide off topic from time to time. He’ll be very interested 

in knowing that as I walked into my office on Monday, the first 

time I had set foot in there in 2016, I walked back to what I call 

our leg shop, and there I see there are two new faces. And they 

were two interns that I had not met before and actually wasn’t 

aware that they were coming on board. So as I introduced myself 

to them, the first one—her name is Sydnee—and right away, I say, 

‘‘Where are you from?’’ 

And she said, ‘‘I was born in Canada.’’ 

‘‘Born in Canada. Well, why are you here?’’ 

‘‘Well, because I’m a born in Canada with an American citizen 

mother and a Canadian father, and I’m a dual citizen.’’ 

The second I heard that, I picked up my iPhone, and I interviewed her. This is 2 minutes long, and I’d like to play it for you 

all so you can hear how simple this argument actually is. 

[Audio recording played.] 
64 

Mr. KING. ‘‘Maybe because of politics’’ was the last answer that 

we heard from her. And for me—— 

Mr. COHEN. Would the gentleman yield for just a minute? 

Mr. KING. I would yield to the gentleman from Tennessee since 

he brought up the topic. 

Mr. COHEN. Thank you, sir. Thank you. I think that there’s a 

proper response, and I’d like to play it right now. 

Mr. KING. Let me reclaim my time on that, and since I’m going 

to claim the last word in this particular hearing and utilize my 

time then to examine the witnesses, but I’m always opened to dialogue in the elevator or anyplace else, Mr. Cohen. 

Mr. COHEN. Chris Christie would like this one. 

Mr. KING. I thought that it was quite interesting and ironic and 

coincidental that I would walk into my office—— 

Mr. GOHMERT. Mr. Chairman, the gentleman from Tennessee is 

out of order. 

Mr. KING. I thought it was coincidental with excellent timing 

that I would walk into my office and find a young lady who hasn’t 

been in this arena, never been to law school, and who happened to 

find herself in a very, very similar, if not identical, birth circumstances of Senator Ted Cruz, who understood this with such 

utter clarity. And the default is this: If you’re born to an American 

citizen, say on some other soil, say the son or daughter of a missionary or missionary couple, then they’re automatically American 

citizen by virtue of the citizenship of their parents. And no one 

doubts that, or we wouldn’t have missionaries traveling around the 

world. They would stay here, I would think. And she understood 

with such clarity. She said if you’re not a naturalized citizen, then 

you are a natural-born citizen by default. And that’s what the 1790 

statute says. That’s what all the scholarship says with except to 

people that I suspect have that politics in the way of their rationale. 

So I’d like to pose a quick question to each of the panelists if I 

could, and it’s going to be a general one. This: I’m troubled. It looks 

to me like I’m seeing Supreme Court decisions, circuit court decisions that are calculating the policy instead of the text in the Constitution. And it looks to me like the text of the Constitution with 

the Origination Clause—if the courts—if the courts do not honor 

the text of the Constitution and the original understanding, they 

realize that it blows the whole ACA up, and we have to start all 

over. I’d be very happy with that. 

But it seems to me that they’re not reading the text of the Constitution and applying it any longer. And I used to be able to make 

the call on what I expected the Court would rule, and I was right 

so often that I had a sense of confidence. Now I no longer have that 

confidence. 

So my question is, if we have a rogue court, especially a rogue 

court, are we wedded then to Marbury to the extent that we have 

no recourse to a rogue Supreme Court? Or is there another alternative—— 

Mr. FRANKS. Would the gentleman direct that to one of the witnesses? 

Mr. KING. I would go to Mr. Gaziano. 
65 

Mr. GAZIANO. I’ll just give two very brief answers. First of all, I 

don’t—although we all disagree with every court sometimes, I 

think the Supreme Court will easily get this right. And as my 

precedent for this Origination Clause question, if they take it, and 

as I stated in my written testimony, if they don’t take the case we 

bring for Matt Sissel, there are other cases pending. Others will be 

brought. They have to take it. So it’s really important for the Supreme Court to provide guidance. And in the Sackett case we won 

9-0, 3 years ago, every single judge, nine district courts, five circuit 

courts, had ruled the other way. There were many, many more 

judges who got that question wrong. But when it went up to the 

Supreme Court, the Pacific Legal Foundation won 9-0. Even 

Obama’s own appointees voted against the EPA. 

So the fact that the circuit courts are strongly divided and four 

dissenting judges in the D.C. Circuit thought that the panel decision was dangerous is an additional reason for the Supreme Court 

to correct the error, but I have every confidence that when they 

take this case—they’ve really got to take this case; they ought to 

take it now—they will do the right thing. 

Secondly, if you don’t mind, three other times in my testimony, 

I stressed, as I did the last time, the importance of you all having 

this hearing and getting it right regardless of whether the Court 

gets it right and regardless of when they get it right. So if the Supreme Court doesn’t take this, it’s absolutely important that the 

House enforce the original meaning of the Origination Clause because you have a responsibility to interpret and apply the original 

meaning of the Constitution, and you can do so. And guess what? 

You get punished by the voters when you don’t, as Chairman 

Frank’s amicus brief in the D.C. Circuit so ably pointed out and 

that you joined. 

Mr. KING. I accept your statement. I’m far more cynical on the 

result out of the Supreme Court on this particular case. I appreciate your testimony. 

I yield back the balance of my time. 

Mr. FRANKS. I now recognize the gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chair. 

And just so people get the historical perspective on the Supreme 

Court attending the State of the Union, since I’ve been in Congress, 

the Supreme Court has never had all nine Justices attend a State 

of the Union address. And since 9/11, my understanding is neither 

the House Republicans, House Democrats, Senate Republicans, 

Senate Democrats, ever have all of their Members come to a State 

of the Union since 9/11. And it goes back to concern about what 

happened in Clancy’s book back in the early 1990’s where someone 

crashed a plane into the Capitol and took out everybody because 

everybody, including the Supreme Court, were all there. We just 

want to make sure that doesn’t happen. 

In Alito’s defense, if I were on the Supreme Court, which I’ll 

never be because I wouldn’t take the guff they do at the Senate 

hearings, but if I were on the Supreme Court and knew what was 

involved in a decision I’d made, such as Citizens United, had the 

President of the United States reflect his ignorance of what the 

case actually said, what it meant, what it represented and what 
66 

the Court said, I would never come back to another State of the 

Union he gave again and be lectured by somebody that misrepresented what I said, what I knew, when my knowledge and my intellect and my writings were far greater than anything he had to 

say at the State of the Union address. 

Now, Ms. Wydra, you said this case is a loser. But Mr. Kamenar, 

has there ever been a Supreme Court case that’s been taken up 

that dealt as directly as the cases we’re considering here on the 

issue of the Origination Clause? 

Mr. KAMENAR. Thank you, Mr. Gohmert. No. The Supreme Court 

has never ruled on a case where the Senate took a House bill, gut 

and replaced the entire thing and added revenue-raising measures. 

And I just want to correct the record here from Ms. Wydra. I’m 

quoting from her brief that she filed: ‘‘The Origination Clause, in 

its final form, provided for an expansive category of bills that 

would need to originate in the House—that is, all ’bills for raising 

revenue,’ even those that did not have as their purpose the raising 

of revenue.’’ The D.C. Circuit said that the ACA had its purpose 

for improving health care. So she obviously disagrees with that. 

You read her beginning of her first four or five pages of opinion. 

She can’t say she agrees with the majority of the D.C. Circuit, so 

I’m quoting her brief there. But to get to your point, no—— 

Ms. WYDRA. That’s about the original meaning of the Origination 

Clause. That wasn’t about the D.C. Circuit’s opinion in particular. 

Mr. KAMENAR. What do you think of the D.C. Circuit? Do you 

think that the—— 

Mr. GOHMERT. Well, if we could keep the format where I get to 

ask the questions. Thank you. 

Well, let me ask, Mr. Gaziano, if the Supreme Court does not 

take this case or takes it and rules, in fact, that either this was 

not a case that raised revenue when clearly it does, or they rule 

that it did originate in the House, can there ever again be any 

meaning applied to the Origination Clause without which we would 

have no Constitution like this today? 

Mr. GAZIANO. There would probably be no effective meaning to 

the Origination Clause in the court, but that would increase the 

importance of this body doing the right thing. As I mentioned in 

my written testimony—or until the Supreme Court changed its 

opinion and correctly interpreted the Constitution, which of course 

has also happened throughout our history when the Supreme Court 

gets something wrong. But it would be even more important for 

this body to establish firewalls and apply the original meaning. I 

would submit that if you believe the Supreme Court was wrong, 

and you have the independent power to interpret and apply the 

Constitution, you could not follow the Supreme Court’s opinion. 

You would have to vote to stop a Senate bill that violated the 

Origination Clause. You would also suffer political damage with 

the voters if you didn’t, but I would submit it would be your constitutional duty. 

Mr. GOHMERT. Having been here in Congress now for 11 years, 

I can tell you that if the Supreme Court rules that the Constitution 

says or doesn’t say something, that often is enough to be a winning 

argument among Members of Congress who don’t pay as much attention to the Constitution but seem to think, well, if the Supreme 
67 

Court says it, then it must be the law, when, in fact, as we know 

they get things wrong and have to be corrected later by another 

court. Thank you, Mr. Chairman, for the time. 

Mr. FRANKS. I thank the gentleman. 

I thank all of the witnesses. I almost wish this hearing wouldn’t 

end, but not that bad. So this, indeed, concludes today’s hearing. 

And, without objection, all Members will have 5 legislative days 

to submit additional written questions for the witnesses or additional materials for the record. 

And, again, I thank the witnesses and the Members and even the 

audience, and this hearing is adjourned. 

[Whereupon, at 10:08 a.m., the Subcommittee was adjourned.] 

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