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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 THIRTEENTH CONGRESS 

SECOND SESSION 

APRIL 29, 2014 

Serial No. 113–73 

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 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

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 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

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 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

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 

JIM JORDAN, Ohio, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

APRIL 29, 2014 

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 ................................................................................................... 3 

WITNESSES 

Nicholas M. Schmitz, Stanford University, Stanford, CA 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Paul D. Kamenar, Attorney-at-Law, Washington, DC 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 27 

Joseph Onek, Principal, The Raben Group, Washington, DC 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

Todd F. Gaziano, Executive Director of the D.C. Center, Pacific Legal Foundation, Washington, DC 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 43 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 81 

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

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

on the Judiciary ................................................................................................... 83 

(1) 

THE ORIGINAL MEANING OF 

THE ORIGINATION CLAUSE 

TUESDAY, APRIL 29, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:07 a.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Jordan, Chabot, King, 

Gohmert, DeSantis, Cohen, Nadler, Scott, and Johnson. 

Staff present: (Majority) Zachary Somers, Counsel; Tricia White, 

Clerk; (Minority) James J. Park, Minority Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order. And without objection, the Chair is authorized to declare recesses of the Committee at any time. 

I want to welcome all of you here today, the Members and the 

witnesses. And I especially want to welcome our new Ranking 

Member, Congressman Steve Cohen from Tennessee. He and I 

have served together for many years, and I have a great deal of respect and affection for Congressman Cohen and look forward to 

working with him. Welcome. 

The first clause of Article 1, Section 7 of the United States 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 them 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 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.’’ 
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Simply put, the origination of revenue bills is not a small 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. 

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, 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 

at all. 

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 where the members sit unchallenged for 6-year terms, who do not proportionately represent the 

American population, and who already enjoy their own unique and 

separate Senate power granted to them in the Constitution. As 

George Mason observed during a 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 over 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 powers of 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 that bill and replacing it with a ‘‘bill 

for raising revenue,’’ no matter how non-germane the Senate’s 

amendment is to the original House-passed measure. Now, this sort 

of procedure ignores the framers’ intent, and if allowed to stand, 

it renders the origination clause of our Constitution a dead letter. 

And I look forward to the witnesses’ testimony on this important 

subject. I hope it helps us all inform the members of this Congress 

and of the House more generally of the fundamental importance of 

the origination clause to our constitutional system. For the responsibility of enforcing the origination clause rests in the first instance 

right here in the House of Representatives. 

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 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. 
3 

With that, I would now recognize the Ranking Member for an 

opening statement. 

Mr. COHEN. Thank you, Mr. Chairman. It is indeed my first 

meeting as Ranking Member of this Subcommittee, and I am honored to serve in this position and honored to serve with you. And 

we had a good relationship as Chair and Ranking Member of the 

Subcommittee on Commercial and Administrative Law during the 

111th Congress, and we will work together here. 

Of course, this hearing is on the original meaning of the origination clause. It plays an important role in ensuring that the people’s 

House has the first say when it comes to bills raising revenue. We 

are the House closest to the people and always have been, but not 

necessarily like it was when the framers framed the Constitution, 

and I think that is an issue that I do not think anybody touches 

on. And maybe I am wrong, but we will throw it out there. 

The Constitution reflects a whole bunch of compromises to bring 

about the great document that served the original States and regions of our country which were mostly on this side of the Mississippi River. The makeup of the Congress itself, the House was 

2-year terms, the Senate 6-year terms; the House closer to the people elected by population, the Senate by States. And the smaller 

States have got their clout in the Senate, and then the larger 

States have more representation obviously in the House where it 

is by population. 

And the origination clause was a balancing of those interests to 

give the House, with its roots there with the people and origination, the opportunity to originate all these revenue bills. And that 

is great politics and great theory. It also gave the Senate in the 

balancing act the power to propose concurrent amendments as in 

all of the bills. You cannot get anything done without both Houses, 

the House and the Senate. So the Senate does get to vote and approve, et cetera, et cetera, et cetera. 

But, of course, when this came around, this was all before the 

17th Amendment, and the Senate was a bunch of guys that were— 

and they were all guys—that were picked by their State legislatures to basically be the voices of the powers that be in the State 

legislature, the governors, the speakers of the House and the Senate. So it made a lot of sense then really that these guys who were, 

in many ways, lackeys of the State house, were not to originate 

bills requiring people to fork out their money, their taxes, to fund 

the government. 

But that has changed. It changed in the 20th century when we 

required the Senate to be elected by the people and took away the 

yoke of the State capitol from their necks, because that is all the 

senators were basically lackeys of the State legislative Capitol Hill 

gang in each State. They picked the guys. They were wealthy guys 

they liked and they wanted to give them an opportunity to go to 

Washington and have some say as a senator. They protected the 

interests of the State, but really they protected the interests of the 

State’s interests—the speakers, the governors, the guys that ran 

the show, the Tammany Halls in Albany. They picked their own 

guys. And certainly they should not have the right to originate revenue bills because that would be almost like England, unelected 

people, because they were not elected. They were chosen. So you 
4 

have got to view all of this in that context, and we have performed 

it and changed it, and the senators are now human beings, not 

chattels of State capitols. Free will. 

Some observers say that the origination clause is in peril. These 

observers, including some of our witnesses today, allege that Congress did an end run around the origination clause when it passed 

the Patient Protection and Affordable Care Act, and particularly 

the individual mandate and the shared responsibility payment. It 

will be made more evident during our discussion today, but neither 

the facts nor the law support this assertion, although people can 

argue such. And that is why we have cases, and that is why we 

have lawyers even on sides that are bound to lose. 

Supreme Court precedent and congressional practice make clear 

that a bill with a primarily non-revenue purpose is not a bill for 

raising revenue within the origination clause’s meaning even if the 

bill raises revenue so long as the revenue supports the government 

programs. So the Supreme Court precedent both for primarily nonrevenue purpose—giving people healthcare and saving them from 

the final destination for some period of time—is not a bill just simply to raise revenue. 

Here the Supreme Court concluded in 2012 in National Federation of Independent Business v. Sebelius—the late Sebelius—the Affordable Care Act had the primary purpose of, among other things, 

expanding health insurance coverage. And the individual mandate 

and shared responsibility payment was the key to meeting this 

goal. I should note for context purposes that it is a little over a 

week away from the U.S. Court of Appeals, the D.C. circuit, hearing of oral arguments in Sissel v. HHS, where the plaintiff, Sissel, 

challenges the constitutionality of the Affordable Care Act on origination clause grounds. And I question whether the best use of our 

resources right now—of course I am the Ranking Member so all I 

can do is question that—is to have a hearing on a matter that is 

not yet heard by the D.C. Circuit court. But we are here, and I look 

forward to the discussion. 

It is interesting. I read a Juan Williams op-ed, and I cannot remember the man’s name, but it was germane and central to the 

Romneycare proposal. And he said that the Affordable Care Act 

and Romneycare were really basically the same thing, and it is just 

all about messaging. And that it has been messaged that the Affordable Care Act has not been successful. The message was that 

Romneycare was successful. 

And so, people kind of think Romneycare was successful and the 

Affordable Care Act maybe was not, but that if it was not for the 

messaging, everyone would have embraced it and liked it, and realized it was the same thing that the Republicans brought forward 

as an alternative to Hillarycare, and it was Romneycare. But the 

followers of Romney have vilified and attacked the Affordable Care 

Act. Interesting that the same subject matter could be viewed and 

messaged in different things, and this is a perpetuation, continuation, of that same messaging program. 

With that, I yield back the rest of my time. 

Mr. FRANKS. And I thank the gentleman. And without objection, 

the other Members’ opening statements will be made part of the 

record. 
5 

So let me now introduce our witnesses. Our first witness is Nicholas Schmitz. Mr. Schmitz is a graduate of the United States Naval 

Academy and has a graduate degree in political theory and philosophy from Oxford University, where he studied as a Rhodes Scholar. Mr. Schmitz is currently pursuing his second graduate degree 

at Stanford University. 

After graduating from Oxford, Mr. Schmitz served as an infantry 

officer in the United States Marines in Helmand Province in Afghanistan, before spending the last several years on the teaching 

faculty in the political science department at the Naval Academy. 

Mr. Schmitz is the author of the Law Review article ‘‘The Origination Clause: Meaning, Precedent, and Theory, from the 12th to the 

21st century.’’ We are glad you are here, sir. 

The second witness is Paul Kamenar. Mr. Kamenar is an attorney with over 35 years’ experience litigating cases in the U.S. Supreme Court and lower Federal courts raising important constitutional, statutory, and public interest issues. He is also a senior fellow of the Administrative Conference of the United States. 

Mr. Kamenar was formerly a clinical professor of law at George 

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

Washington Legal Foundation where he represented over 250 

Members of Congress in original amicus curiae litigation in dozens 

of cases, and testified before Congress on numerous occasions. Welcome, sir. 

Our third witness is Joe Onek. Mr. Onek is a principal at the 

Raben Group. He has experience working in all three branches of 

government, including most recently as senior counsel to Speaker 

Nancy Pelosi. Additionally, Mr. Onek served as an associate director on the White House Domestic Policy Staff and later as the deputy counsel during the Carter Administration, and during the Clinton Administration as the senior coordinator for rule of law at the 

State Department, and principal deputy associate attorney general 

at the Department of Justice. After graduating from law school, he 

clerked for Justice William Brennan on the United States Supreme 

Court. Thank you, sir, for being here. 

Our final 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 to Pacific Legal Foundation, he served in the Justice Department’s Office of Legal Counsel where he provided advice to the White House and four attorneys general on constitutional matters. He was a 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. And thank you again for being here, Tom. 

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 testimony in 5 minutes or less. And to help you stay 

within that time, there is a timing light in front of you. The light 

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 witnesses’ 5 minutes have expired. 
6 

*The material referred to is not reprinted in this hearing record but is available at: http:// 

www.bcu.ac.uk/Download/Asset/acecfa6b-59c9-4f7b-a2cd-6a09a1bc281b. 

And before I recognize the witnesses, it is the tradition of the 

Subcommittee that they be sworn. So if you would please stand. 

[Witnesses sworn.] 

Mr. FRANKS. Please be seated. Let the record reflect that the witnesses answered in the affirmative. 

I would now recognize our first witness, Mr. Schmitz. Please turn 

your microphone on, Nicholas—Mr. Schmitz—before you speak 

there. 

TESTIMONY OF NICHOLAS M. SCHMITZ, 

STANFORD UNIVERSITY, STANFORD, CA 

Mr. SCHMITZ. Thank you. Mr. Chairman, Mr. Ranking Member, 

and Members of the Subcommittee. Thank you for the opportunity 

to testify today. I have submitted my written statement for the 

record and included a copy of my recently-published scholarly article in the British Journal of American Legal Studies titled ‘‘The 

Origination Clause: Meaning, Precedent, and Theory from the 12th 

to the 21st Century.’’ * My research partner and co-author, Professor Priscilla Zotti, is the chairman of the political science department at the U.S. Naval Academy. 

The origination clause requires 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 explained in more detail in our journal article, its history reveals a 

deliberate procedural restraint on the taxing power that no branch 

of the government, except the direct representatives of the people, 

the House of Representatives, who are elected every 2 years, and 

who are most familiar with the circumstances of the people, can 

constitutionally propose new taxation. 

The 1215 A.D. Magna Carta forced upon King John at Runnymede by his barons following their open insurrection contained 

among its 63 clauses no scutage or aid will be levied in our realm 

except by the common counsel of our realm. By 1678, the House of 

Commons required that all bills for the purpose of taxation or containing clauses imposing a tax must originate in the House of Commons and not in the House of Lords. Under American colonial charters during the time, new taxes typically required the ‘‘advice, assent, and approbation of the free men of the said province.’’ 

In 1764, the Virginia House of Burgesses sent its famous petition 

to the House of Commons explaining colonial opposition to the 

Sugar Act. ‘‘The Council of Burgesses conceive it essential to British liberty that laws imposing taxes on the people ought not to be 

made without the consent of the representatives chosen by themselves, who at the same time that they are acquainted with the circumstances of their constituents, sustain a proportion of the burden laid upon them.’’ 

The principle is echoed in the fundamental objection of the first 

act of the coordinated American government in the Stamp Act Congress. It was reiterated again by the First Continental Congress in 

October 1774. Following independence, the new States formed their 

own constitutions. Of the nine available State constitutions with bi-
7 

cameral legislatures in 1790, seven had lower house origination 

clauses. Of the seven with origination clauses, six allowed upper 

house amendment to revenue raising bills. 

When the Constitutional Convention opened on May 25th, 1787, 

the fundamental topic of disagreement between the delegates was 

over the nature of representation in the legislation branch. The 

small States insisted on retaining the equal representation they enjoyed under the Articles of Confederation, while the larger States 

wanted to shift the national legislation to be proportionately representative. 

What it took for the Great Compromise was Benjamin Franklin’s 

recognition that the fundamental disagreement was over property 

and taxation, and Elbridge Gerry’s subsequent proceeding to ‘‘restrain the senatorial branch from originating money bills. The 

other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse 

strings.’’ The origination clause was ‘‘the cornerstone of that accommodation.’’ 

The debate on the wisdom of the clause continued; however, the 

imperative for adding the Senate amending power was primarily to 

prevent the House from abusing the absence of an amending power 

by disingenuously tacking foreign matters onto money bills, and 

then claiming that the Senate could not amend out these non-germane clauses. The primary impetus for the clause was not to expand the Senate’s influence over tax law, and certainly not to allow 

the Senate to effectively originate taxes. 

Ultimately, the argument that seemed to prevail in the Constitution was purely pragmatic. ‘‘Taxation and representation are 

strongly associated in the minds of the people, and they will not 

agree that any but their immediate representatives shall meddle 

with their purses. In short, the acceptance of this plan will inevitably fail if the Senate be not restrained from originating money 

bills.’’ 

I offer two notes on the meaning of the actual words of the clause 

that are very commonly misconstrued by contemporary legal analysis. First, the phrase ‘‘bill for raising revenue’’ did not connote 

only bills whose primary purpose or sole purpose was raising revenue. The vast weight of historical evidence from the phrases used 

in the Revolution, the Convention, the State constitutions from 

which the exact phrase was adopted, and the ratifying debates 

belie this common argument. The ‘purposive’’ interpretation is not 

supported by the majority of historical evidence. 

Second, the concept of incidental taxation is specified nowhere in 

the Constitution, and it was both discussed and rejected in the 

1787 Convention. Such a distinction between ‘‘incidental revenue’’ 

and ‘‘revenue proper’’ does not appear to be historically justified, 

especially if the revenue comes from taxes rather than other revenue sources, such as user fees or sales of government assets. Ironically, Judge Joseph Story’s often misconstrued passage on incidentally created revenue listed illustrate examples of the concept, none 

of which included actual taxes. 

I thank you for your time, and I would be happy to elaborate further on all of these issues. 

[The prepared statement of Mr. Schmitz follows:] 
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**The material referred to is not reprinted in this hearing record but is available at: http:// 

www.pacificlegal.org/document.doc?id=1322. 

Mr. FRANKS. Thank you, sir. 

And I will now recognize Mr. Kamenar for 5 minutes. 

TESTIMONY OF PAUL D. KAMENAR, ATTORNEY-AT-LAW, 

WASHINGTON, DC 

Mr. KAMENAR. Thank you, Mr. Chairman, Mr. Ranking Member, 

and Members of the Subcommittee. Thank you for inviting me this 

morning to testify on the origination clause. I want to particularly 

thank you, Mr. Chairman and Congressman Gohmert, for the leadership you have shown on this issue and your fidelity to your oath 

of office to support and defend the Constitution by, one, introducing 

House Resolution 153 with 50 of your colleagues expressing the 

sense of the House that the Affordable Care Act violated the origination clause because it was a bill for raising revenue that originated in the Senate; two, by filing a friend of the court brief with 

your colleagues in the U.S. Court of Appeals in the Sissel case. 

And I am honored to represent you and your colleagues as your 

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

Jackie Pick. And I have submitted a copy of the brief for the 

record;** and three, finally by holding these timely and, I believe, 

historic hearings to inform the American public and the House of 

the importance of the origination clause to the founding of this 

country, and the jeopardy that clause is in. 

I am struck by canard constantly repeated that the Affordable 

Care Act was upheld by the law of the land, by the Supreme Court, 

so get over it. Well, first of all, the Court in NFIB struck down the 

Medicaid portion of the bill by a vote of 7 to 2 as a violation of the 

10th Amendment’s powers reserved to the States. Second, even 

though Justice Roberts upheld the mandate penalty as a tax and 

a novel ruling, at least he inserted this important caveat in his 

opinion: ‘‘Even if the taxing power enables Congress to impose a 

tax on not obtaining health insurance, any tax must still comply 

with other requirements in the Constitution.’’ In short, the Supreme Court did not consider the origination clause, but left it 

open. 

I would like to briefly address the two parts of that clause. The 

first part, of course, is ‘‘All bills raising revenue shall originate in 

the House.’’ The constitutional history, as you heard, is very broad 

on what raising revenue is. It is broad money bills. In the first case 

in 1875, the Federal Court said ‘‘Certain legislative measures are 

unmistakably bills for raising revenue. These impose taxes on the 

people either directly or indirectly.’’ With respect to such bills, it 

was reasonable that the immediate representatives of the taxpayers should alone have the power to originate them. So any notion that the Affordable Care Act, which raises $500 billion in 

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

to promote healthcare is simply a false argument. There is simply 

no historical basis for this purpose test. 

Turning to the jurisprudence of this case, the most recent being 

United States v. Munoz, as a preliminary matter, arguments are 

being made that the origination clause is such that it should not 
25 

even be adjudicated in the courts, that the courts should defer to 

the legislative branch as to both the scope of the House’s revenue 

raising power and the scope of the Senate’s amending power. I 

think Justice Thurgood Marshall had it exactly right when he cited 

James Madison’s Federalist 58, solemnly rejecting that argument 

and Munoz-Flores when he said, ‘‘Provisions for the separation of 

powers within the legislative branch are thus not different in kind 

from provisions concerning relations between the branches. Both 

sets of provisions safeguard liberty. A law passed in violation of the 

origination clause would thus be no more immune from judicial 

scrutiny because it was passed by both Houses and signed by the 

President than would be a law passed in violation of the First 

Amendment.’’ 

Now, in reaching the merits, the Munoz court did conclude that 

the $25 assessment provision imposed on a criminal was not a bill 

for raising revenue for the general treasury, but stated, ‘‘The special assessment provision was passed as a part of a particular program to provide money for that program, the client victim’s fund.’’ 

Although any excess was to go to the treasury, there is no evidence 

that Congress contemplated the possibility of a substantial excess, 

nor did such excess in fact materialize. Any revenue for the general 

treasury that the provision created was thus ‘‘incidental’’ to the 

provision’s primary purpose. 

While we may disagree with this narrow ruling that these little 

user fees are not revenue raising, it is absurd to argue that that 

decision in any way is a precedent for upholding the Affordable 

Care Act in scope and content. One, $500 billion in taxes under the 

Affordable Care Act are not nominal special assessments or user 

fees. And two, more importantly, the billions of taxes in that Act 

go directly into the general treasury just like other taxes, and they 

are not placed in a separate fund for an account like they were in 

Munoz. Finally, as to the second part of the origination clause governing 

the Senate’s limited amending power, the concern during the constitutional debates was that if the Senate could not have any 

amendment power at all, the House would abuse its revenue raising power by attacking non-revenue raising measures and lock the 

Senate into either voting up or down on it. And, therefore, they 

wanted a limited provision to have some amendments on that. 

Now, in Stone v. Tracy, the Supreme Court upheld this limited 

amendment of a major House tax bill when the Senate substituted 

a corporate tax provision for a House inheritance tax provision, but 

the Court noted that this one small amendment was germane to 

the House bill and did not raise any new revenue. So the notion 

that this limited amending power could include the unheard of and 

never before accepted attempt to gut a small House bill providing 

tax credits, which does not even raise taxes, as a shell bill and replaced it entirely with a non-germane 2,000-page bill raising $500 

billion in tax, and then claim with a straight face that the bill 

originated in the House simply because the Senate pasted the 

House bill number atop the Senate healthcare bill is simply a shell 

game. If the courts allow this legislative sleight of hand, the limited amending power will swallow up the whole House’s power to 

originate revenue bills contrary to the original meaning. 
26 

In conclusion, I note Professor Randy Barnett of Georgetown 

when he concluded in a recent Washington Post article, ‘‘Revenue 

bills shall originate in the House of Representatives, but the Affordable Care Act did not. As constitutional questions go, this is 

about as easy as it gets.’’ 

Thank you, and I would be glad to answer any questions. 

[The prepared statement of Mr. Kamenar follows:] 
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Mr. FRANKS. Thank you, Mr. Kamenar. 

And, Mr. Onek, you are now recognized for 5 minutes, sir. 

TESTIMONY OF JOSEPH ONEK, PRINCIPAL, 

THE RABEN GROUP, WASHINGTON, DC 

Mr. ONEK. Thank you. Mr. Chairman, Mr. Ranking Member, 

Members of the Subcommittee, the reports of the death of the 

Origination Clause are greatly exaggerated. At this very moment, 

the Senate is refraining from sending its immigration bill to the 

House because the bill contains revenue provisions, and the Senate 

fears the House will decide that the bill violates the Origination 

Clause and will reject it with a blue slip resolution. The Origination Clause lives. 

The call here to give courts a greater role in enforcing the Origination Clause strikes me as both ironic and misguided. The purpose of the Origination Clause, as Mr. Schmitz has so eloquently 

pointed out, is to bring decisions on tax and revenue policy closer 

to the people. But more extensive judicial intervention would have 

precisely the opposite effect. It would transfer power on tax and 

revenue issues from the most democratic branches of government 

to the least democratic branch, the courts. This is not what the 

framers of the Origination Clause had in mind. 

The Sissel case in particular asks the courts to use the Origination Clause to strike down a central provision of the Affordable 

Care Act, the individual mandate. It claims that the individual 

mandate violates the clause because the mandate is a tax and did 

not originate in the House. The District Court correctly decided, 

based on Supreme Court precedent, that the clause does not apply 

here because the primary purpose of the individual mandate is not 

to raise revenue. Indeed, the government would be happiest if the 

mandate raised no money at all because everybody would get insurance. 

The purpose of the individual mandate, as everyone here knows 

perfectly well, is to induce more people, and especially healthier 

people, to purchase health insurance. Now, it is still too early to 

tell whether the individual mandate is working as intended, but 

initial results are encouraging. Eight million Americans have enrolled in health insurance plans through the Affordable Care Act’s 

exchanges. Five million more have enrolled directly in insurance 

plans that comply with the Act without going through the exchanges. Crucially, a substantial proportion of these enrollees are 

younger and presumably healthier individuals. 

The District Court also concluded correctly that the individual 

mandate originated in the House within the meaning of the Origination Clause. The individual mandate was part of an amendment 

that the Senate made to a House bill that gave certain tax benefits 

to military personnel and imposed a small increase in corporate 

taxes. Now, the Origination Clause expressly provides that the 

Senate may propose amendments to House revenue bills as on 

other bills. 

Sissel argues, however, that the Senate amendment was not germane to the House bill. But the Senate and the House themselves 

do not require that Senate amendments to a House revenue bill be 

germane to that bill. And there is nothing in the Constitution that 
36 

requires such germaneness. It would, therefore, be inconsistent 

with separation of power principles and with the specific directive 

of Article 1, Section 5 of the Constitution that each House may determine the rules of its proceedings for the courts to interfere with 

the policy of the House and the Senate to accept non-germane 

amendments. 

Now, this position means that some Origination Clause issues 

are not reviewable by the courts. But that has always been the 

case. Whenever, for example, the House rejects and blue slips a 

Senate bill as violating the Origination Clause, that is not reviewable by the courts. And I do not think House Members would want 

it any other way. 

Sissel also contends that the original House bill was itself not a 

bill for raising revenue, and that, therefore, the Senate was prohibited from adding a revenue amendment to it. But the tax imposed 

by the House bill clearly did raise revenue and, unlike the individual mandate, was not incidental to some other governmental 

purpose. 

In conclusion, it is noteworthy that despite the contentiousness 

of the Affordable Care Act, the objections being raised by Sissel 

were not raised in either the House or the Senate. There was no 

blue slip resolution or Senate point of order. Instead, Sissel is pursuing this issue in the courts. But as I have noted earlier, transferring power on tax and revenue issues to the least democratic 

branch is not what the framers of the Origination Clause intended. 

Thank you. 

[The prepared statement of Mr. Onek follows:] 
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Mr. FRANKS. Thank you, sir. 

And, Mr. Gaziano, you are now recognized for 5 minutes, sir. 

TESTIMONY OF TODD F. GAZIANO, EXECUTIVE DIRECTOR OF 

THE D.C. CENTER, PACIFIC LEGAL FOUNDATION, WASHINGTON, DC 

Mr. GAZIANO. Good morning, Mr. Chairman and other distinguished Members of the Subcommittee. I am privileged to be part 

of the Pacific Legal Foundation that represents Matt Sissel in his 

constitutional challenge to Obamacare’s individual mandate. And I 

am struck by the fact that Mr. Onek suggests that the courts 

should not be involved in that challenge. Yet the Ranking Member 

in his opening statement suggests that this House should not be 

involved in inquiring about this matter. If asked, I would be delighted to explain more in questioning why both the House and the 

courts need to be involved. And I will use the Chadha case as an 

important proof that our individual liberty requires that all 

branches of the Federal Government enforce our fundamental 

rights. 

But let me begin this morning with the following hypothetical: A 

future House impeaches the Attorney General, let us say, for perjury before this body. The Senate then takes up that impeachment 

article, and through a very creative substitute tries and convicts a 

future justice, Richard Epstein, of multiple counts of bribery and 

other high crimes. 

My question is, could this House ratify that conviction and remove Justice Epstein by passing a conforming article of impeachment after the Senate trial? Well, of course not. The impeachment 

of a particular officer must originate in this House, and the subsequent Senate trial must be limited to those counts and articles that 

originated in the House. 

But why is that so? Did the 17th Amendment not change the nature of the Senate? Why should the world’s most deliberative body 

over there in the Senate be confined to only hearing or trying impeachment on those people that this House first impeached and on 

those counts that this House originated? Is Justice Epstein’s trial 

not germane to the articles of impeachment on the Attorney General? Both are officers. Both committed high crimes. What could be 

more germane than that? And did the need of the Senate to remove 

that loudmouth justice not justify this little legislative jujitsu? 

Let us suppose that the House backdates the articles of impeachment after the Senate trial. Would that not take care of all the formalities involved? Surely no one outside Congress could complain. 

Well, if we think that the future Justice Richard Epstein, and 

hopefully he will not mind me using his name, would have a strong 

constitutional—a winning constitutional—claim to keep his seat, 

my question then is, why do ‘‘modern’’ thinkers treat the Origination Clause requirements differently? There could be several reasons for that, but I suspect one of them is a lack of reverence for 

the fundamental liberty protected by the Origination Clause. 

This hearing and the Sissel case will help resolve whether that 

important check on our individual liberty can endure. Boiled down 

to one sentence, the only part of the Senate healthcare bill and its 

17 or so historically large taxes in a 2,074-page bill that originated 
42 

in the House was the bill number. Putting other grounds for striking that down aside, one fact should convince us that that was invalid: the use of such House bill designations did not exist at the 

time of the Framing or for 30 years thereafter. Thus, the argument 

that it could be a constitutional amendment to strip everything out 

of a bill and just leave that number that did not exist at the time 

of the Framing and could not possibly have had any consequence 

to the Framers who ratified it, must be wrong. 

An amendment may improve or augment the original, but it 

must retain some substantial portion of the original. And as my fellow panelist has already testified, the Framers discussed that and 

agreed. But ordinary English speakers in the 18th century or now 

would not think that a complete destruction of a house and the 

erection of a skyscraper on the same street address was an amendment to the house. They would not think that a novel with a particular card catalog number was an amendment to an earlier math 

workbook that used to have that card catalog number. Complete 

and unrelated substitutes are not ‘‘amendments’’ in any reasonable 

sense of the word. 

The Chairman’s point in his opening is absolutely critical and 

dispositive. If the Senate only had to wait for a House bill—let us 

even call it a revenue bill; it was not in the case that we are talking about in the D.C. Circuit—and if they could then constitutionally put any tax or 17 historic taxes in a 2,074-page bill, then 

there is nothing left of the Origination Clause. And constructions 

of constitutional clauses that render empty any particular clause 

that was debated at the time of the Framing are an insult to the 

Framing generation and any rationale legal system. 

I am going to summarize here since I think I am over. But if 

questions permit, I would like to go to the ultimate question of how 

we also understand the term ‘‘originate’’ in the context of the Origination Clause. In the Sissel case, though, the Senate healthcare bill 

with all its historic taxes had nothing to do with the House bill for 

service members that lowered their taxes. As such, it was unconstitutional. Thank you. 

[The prepared statement of Mr. Gaziano follows:] 
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Mr. FRANKS. Well, thank you, sir. And I will now proceed under 

the 5-minute rule with questions. And we will begin with recognizing myself for 5 minutes. 

Mr. Schmitz, I will begin with you. First, I have to say in Mr. 

Onek’s testimony in two places, he suggests that if the Supreme 

Court gets involved here somehow, I mean, they have to do one of 

two things. They have to let the bill stand or they have to strike 

it down. If they let it stand, it is the status quo. If they strike it 

down, his suggestion is that somehow that would take it farther 

away from the people, and I find that argument fundamentally preposterous because the effect of a decision striking this down would 

be to return to the people a greater say over their own taxation. 

And sometimes I do not know how these arguments are made in 

these impeccable auspices that are completely preposterous. 

Mr. Kamenar, according to the Congressional Budget Office, the 

Affordable Care Act represents one of the largest tax increases in 

American history. However, in Mr. Onek’s testimony, he argued 

that the Origination Clause did not apply to the Affordable Care 

Act. Could you please explain to the Committee as best you can 

why the Affordable Care Act’s enactment was both required to satisfy the requires of the Origination Clause and, if so, why it did not 

satisfy those requires. I am sorry, this is to Mr. Kamenar. Let me 

ask that question to you. 

Mr. KAMENAR. No, it is clear, as I said in my testimony, that the 

Affordable Care Act, which raises over $500 billion, is a revenue 

raising measure. It originated in the Senate. Senator Harry Reid 

even called it the Senate healthcare bill. It is on his website. It 

came over here. And all they did was take this tax credit provision, 

tore off the House bill number, and pasted it on the 2,000-page bill. 

It is clear that it originated in the Senate. 

And with respect to Mr. Onek’s provision that, well, the other 

half of the clause says it can amend as on any other bill. You have 

to look at that provision in terms of when that clause was written. 

Yes, the House and Senate have the power to make its rules, but 

they cannot make a rule that violates the Constitution. 

As we said in our brief, the House of Representatives has always 

recognized the principle that the Senate may not design new tax 

bills. Indeed, when the Framers wrote the Origination Clause, it 

was clear that the scope of permissible amendments, as on other 

bills regardless of whether the bill was or not a bill for raising revenue, did not include amendments that were not germane to the 

subject matter of the bill. Therefore, the established practice by the 

founders during the Constitutional Convention who penned the 

words ‘‘the Senate may propose or concur with amendments as on 

other bills’’—in short, no non-germane substitute amendments 

were permitted in 1787 by the unicameral Constitutional Convention. That is what they were familiar with. 

And the only reason they allowed that was to take care of the 

British practice where if the Senate could not do anything, then 

they would be locked into a House revenue raising bill that might 

put in something about foreign affairs or other commerce, and the 

Senate could not amend it. So it is basically turning the clause upside down on its head the way it is being interpreted by the Senate. 
68 

Mr. FRANKS. Thank you, sir. Mr. Gaziano, it is your testimony 

that if the Senate can do as they did in the Affordable Care Act, 

that the Origination Clause is essentially vapor. So my question to 

you, is the House’s concurrence in a Senate revenue amendment 

alone sufficient to satisfy the Origination Clause? In other words, 

is the Origination Clause intended to protect the House or is it intended to protect the individual liberty of Americans? 

Mr. GAZIANO. That is really another central question, Mr. Chairman, and I appreciate the chance to elaborate. It is ultimately the 

individual right that the Framers had in mind when they required 

that the people’s House originate any tax bills. But you also have 

an interest because you will feel the voters’ wrath. And as the amicus brief that you and many of your fellow Members showed, that 

was the exact result in 2010 when this House violated the Origination Clause. 

So ultimately the courts must enforce the individual right at 

issue because it is an individual right. The Chadha case is a great 

example. In the 1970’s, Congress passed 160 one-house or Committee vetoes because it thought that it needed to check the imperial presidency of Nixon and Ford, and the strict constitutional requirements of bicameralism and presentment were interfering with 

their desires. 

And their argument, of course, was that the Court should not 

interfere with accommodations between the President and Congress over these new innovations. Well, of course the Supreme 

Court struck down those 160 laws, 160 provisions, in the Chadha 

decision in 1983, pointing out that it was not just a matter between 

the political branches. The House or the Senate, they could have 

stopped that, too. They should have. 

As you noted in your opening statement, every Member of Congress, every officer of the Federal Government takes an oath to defend the Constitution. And again, you all will suffer the voters’ 

wrath. That was the plan, so you all have an interest in protecting 

our individual rights. But ultimately, you cannot concur in a violation of the Constitution in that way. You can change your own 

rules about Committee structure in Committee hearings like this, 

but you cannot change the constitutional rules. And it is ultimately 

up to the courts, like in the Chadha case, to enforce our individual 

liberties. 

Mr. FRANKS. Thank you. And I would now recognize Mr. Cohen, 

the Ranking Member, for 5 minutes. 

Mr. COHEN. Thank you. Mr. Onek, are you familiar with the 

Sissel case? 

Mr. ONEK. I am indeed. Yes, I am. 

Mr. COHEN. Tell me about the arguments that the folks opposing 

will make. 

Mr. ONEK. Well, Mr. Sissel challenges the individual mandate. 

There are other taxes in the bill, of course, but he did not have 

standing to challenge those. So the case is about the individual 

mandate, although as a backdrop you have the other taxes. And he 

said, well, this is a tax, and it did not originate in the House. And 

the District court rejected both arguments. 

On the issue of whether it is a tax, the language—— 

Mr. COHEN. The District Court rejected both the arguments? 
69 

Mr. ONEK. That Mr. Sissel made. 

Mr. COHEN. That Mr. Sissel made. Okay. I am just kind of working because Mr. Kamenar, I think, said this is as easy as it gets, 

and they lost in the District Court. 

Mr. ONEK. That is correct. 

Mr. COHEN. It is a high burden that he is placing on himself, but 

go ahead. Yes, brief the case. 

Mr. KAMENAR. The judge was wrong. 

Mr. ONEK. And what the Court said is, and what everybody 

knows, the individual mandate is not for the purpose of raising revenue. In fact, the government would be delighted if it did not raise 

a dime, if every person bought insurance, in which case nobody 

would have to pay the mandate. Nobody. 

Everybody knows that the purpose of the mandate is to induce 

people, and particularly healthier people, to purchase healthcare 

insurance. The government would have been very happy if it did 

not get a dime. I think the government would have been perfectly 

happy if it could have taken all the money and given it to charity. 

The government does not care about the revenue. What it wants 

is for people, and particularly healthy people, to purchase health 

insurance. 

The second aspect is the aspect I think we could perhaps talk 

more about. What kind of amendments can the Senate make? And 

as I said earlier, the bill says the Senate can propose amendments 

as on all other bills. There is nothing in the Constitution which 

talks about germaneness or says that the Senate has to have a germane bill. And indeed on many occasions the Senate and the House 

have agreed to amendments which were not germane on many, 

many occasions throughout history for at least 150 years. 

So if the Constitution says there can be amendments, if there is 

no requirement that there be germane amendments, how can the 

courts intervene? The separation of powers principles says the 

courts cannot intervene unless they have some standard to intervene on. And, in addition, we have a specific clause of the Constitution, which people here I am sure care a great deal about. Article 

1, Section 5 says ‘‘Each house shall determine the rules of its proceedings,’’ and, in my view, that includes rules and practices with 

respect to whether the Senate’s bill has to be germane or not germane, or whether the House has or does not have the obligation 

to accept a germane amendment. That is up to the House. It is up 

to the Senate. 

Now, the House has a blue slip procedure. The House, for those 

in the audience, the House attaches a blue slip of paper, which is 

why it is called a blue slip, on a resolution and says to the Senate 

what you have done violates the Origination Clause. We reject it. 

We return it. Goodbye. The House can always do that. It did not 

do it here, but it can always do it. So it is not as if the Court—— 

And by the way, once the House does it, there is no review by 

the courts. Nobody can go to the courts and say, oh, my gosh, the 

House rejected this immigration bill, this bill that I happen to approve of, by the way. It rejects this immigration bill that would improve the lives of millions of Americans. Let us challenge it. The 

Court would say you have no standing, get out of here. 
70 

What the House does is unreviewable. And what I am saying is 

what the Senate does, the amendments it makes as on all other 

bills, should not and is not reviewable by the Federal courts. 

Mr. COHEN. Mr. Onek, let me ask you this, too. If a bill is not 

primarily for revenue purposes, it is not for raising revenue, then 

the courts have said it is okay. What was the primary purpose of 

the Affordable Care Act? 

Mr. ONEK. Well, the primary purpose of the Affordable Care Act 

is to provide health insurance, security, and better healthcare to all 

Americans. 

Mr. COHEN. Save people’s lives. 

Mr. ONEK. That certainly is a purpose. 

Mr. COHEN. Lives are in the balance. 

Mr. ONEK. That is correct. And the individual mandate has a 

sort of narrow primary purpose, which is to induce Americans to 

purchase the insurance, and everybody knows that purpose. There 

is nobody here who has not at one time or another given a speech 

against or for the mandate. They all know what the purpose is, but 

somehow we are expecting the courts to ignore that. Well, the District Court did not ignore it, correctly. 

Mr. COHEN. Thank you, sir. 

Mr. ONEK. Thank you. 

Mr. FRANKS. I am going to go ahead and propose a new rule of 

the House of Representatives since we have total latitude in that 

regard that we make this Committee the absolute lawmaking body 

of the world, and it is unreviewable at any time. And with that, 

I am going to recognize Mr. Gohmert, who is someone who recognized this situation very early on, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I appreciate the 

witnesses being here. And we had filed a bill last Congress. But I 

am curious, if we passed a bill in the House that says it is the 

sense of Congress that the Affordable Care Act, and it is really 

hard for me to use those words ‘‘affordable care act’’ because it has 

put constituents of mine out of work. It has taken some from full 

time to part time. It has taken away the insurance they liked. It 

has taken away their doctors they like. So it is anything but affordable. Nonetheless, we will use the misnomer that was used to name 

the bill. 

If we say in our resolution and it passed that it is the sense of 

the House of Representatives that the Affordable Care Act did not 

originate in the House, is that not something that could be taken 

up and considered with judicial notice at any level of the proceedings? 

Mr. ONEK. No. The answer is flatly no because the courts never 

look at post-hoc legislative history. 

Mr. GOHMERT. All right. But—— 

Mr. KAMENAR. I disagree—— 

Mr. GOHMERT. All right. Let us hear your—— 

Mr. KAMENAR [continuing]. Because I argued one case that did. 

Mr. GAZIANO. It would not be part of the legislative history of the 

act, so it would not be. But I do not think that it would be valuable 

for that purpose. It would be valuable for a very different purpose, 

and they ought to certainly pay attention to it. And that is because 
71 

it would discourage the Court from punting its responsibility and 

saying this is a political question. 

Now, the Supreme Court in Munoz-Flores said they cannot do 

that anyway. And so, that is the more important reason why I 

think Mr. Onek’s wish that the courts not examine this horrible act 

will fail. 

Mr. GOHMERT. Okay. But let me hear from—— 

Mr. GAZIANO. The reason that they would care, in administrative 

law, if two agencies disagree on a matter, they do not defer to one 

or the other. 

Mr. GOHMERT. Right. 

Mr. GAZIANO. And so, it would be some proof that your reading 

of the rules is different than what happened in the last Congress. 

Mr. GOHMERT. That there is a question of fact in this. So I was 

really surprised as a former judge and chief justice, I am just 

shocked that anybody that claims to have knowledge of the law 

would have such a quick answer of no. But, Mr. Kamenar—— 

Mr. KAMENAR. Yes. The Court would certainly look at a resolution passed by the House on this for this important purpose. 

Whether or not the members of the House could bring the case 

themselves and have standing, that might, in fact, give them additional what is called legislative standing. But now that we have a 

plantiff that is always with standing. By having this resolution 

passed, it gives the Court more impetus to look at this because now 

it is an institutional interest by the House that the Court cannot 

just simply just say, oh, this is just some plaintiff. Why should that 

plaintiff worry about the House’s bill? They basically relented, et 

cetera. 

So the blue slip procedure is an important procedure for the 

House to use. And Mr. Onek asked, well, why was it not used? 

Well, he was the counsel to Speaker Pelosi at the time, and he 

knows very well. The bill came over from the Senate. Speaker 

Pelosi said we have to pass the bill—— 

Mr. GOHMERT. Well, let me give you a little help there. Actually 

what had happened, the House had originated a bill—— 

Mr. KAMENAR. That is correct, a different bill. 

Mr. GOHMERT [continuing]. An Obamacare bill, and it passed the 

House under Speaker Pelosi’s leadership. And I have senators tell 

me that actually they were told that, look, we are passing the Senate bill, but everybody knows this is not going to be the final bill, 

so we know you have some objections. Do not worry about it. Just 

vote for it, and we will clean it up later. And then, Scott Brown 

got elected so there was not going to be a chance for the Senate 

to vote for the House bill that originated in the House. So the only 

way they could do it was to conspire to subvert the Constitution. 

But my time is running out, and I have one more question to 

ask. Here is the original H.R. 3590, ‘‘Be it enacted by the Senate 

and House of Representatives of the United States of America and 

Congress assembled.’’ That is the enactment clause. And then it 

talks about the Service Members Ownership Tax Act of 2009. This 

is the bill. These are the topics that, this three-page bill. And then 

this starts by saying strike out all after the enacting clause. Tell 

me where in this bill any of these topics in this bill were ever 
72 

found. Any witness that cares to tackle that, point me out anything 

in the new bill that was in the old bill. Mr. Schmitz? 

Mr. SCHMITZ. I cannot speak necessarily to some of this, but I 

can say on the history of the clause, that sort of amending procedure was never contemplated by the public when they signed as on 

other bills when they ratified it. I can find the entire documentary 

history of the ratification of the Constitution where a member in 

the Virginia legislature, an Anti-Federalist, or in the debates contemplated the fact that the Senate might abuse the amending 

power by trying to turn it into an origination power. 

And luckily, during that debate Madison just so happened to be 

there. And he responded to the criticism that the Senate might 

abuse this amending power and turn it into an origination power. 

And he said to the criticizing member, there is an ambiguity in the 

clause, and he said somewhat dismissively, he said, ‘‘the first half 

of the clause is sufficiently expressed as to exclude all doubt,’’ i.e., 

all revenue raising bills will originate in the House of Representatives. That was the one time this was brought up among 34 different instances in the debates. 

I researched it, and when it was brought up, Madison himself, 

who called this power the most complete and effectual power with 

which any Constitution can arm the immediate representatives of 

the people for obtaining a redress of grievances, he dismissed it 

and said the first half of the clause is sufficiently expressed to exclude all doubt. The ratifying public had no idea. They would never 

have expected that that amending procedure would have occurred 

and that they were consenting to that. And furthermore, it was illegal under the Continental Congress since 1781. 

Mr. FRANKS. Thank you, Mr. Gohmert. Thank you, Mr. Schmitz. 

Mr. GOHMERT. Mr. Chairman, I take it by the lack of the witnesses to be able to point out any topic in here that amended anything in our little 3590 bill, there is no such amending topic. And 

I yield back. 

Mr. FRANKS. Thank you, sir. And I now recognize Mr. Nadler for 

5 minutes. Sorry, I did not know which of you came in first. 

Mr. COHEN. Well, he is the Ranking Member emeritus. 

Mr. FRANKS. The Ranking Member emeritus. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, this frivolous hearing is just another misguided attempt by the majority to 

undermine and discredit the Affordable Care Act. Despite the best 

efforts to sabotage it by the majority across this country, implementation of the law carries on. And my friends on the other side 

of the aisle can no longer ignore the great good that the Affordable 

Care Act is doing for the American people. 

The uninsured rate has now dropped to 15.6 percent. 8 million 

Americans have enrolled in comprehensive and affordable private 

health insurance coverage through the Federal exchange. 5 million 

more Americans have enrolled in private ACA compliant insurance 

plans. 3 million young adults gained coverage by being able to stay 

on their parents’ plans. 3 million more people enrolled in Medicare 

and CHIP as of February compared to before the marketplaces 

opened. 129 million Americans with pre-existing health conditions, 

including up to 17 million children, no longer have to worry about 

being denied coverage or charged higher premiums due to their 
73 

health status. 108 million Americans have received free preventive 

services, and 7.9 million seniors in the donut hole have already 

saved $9.9 billion in their prescription drugs, an average savings 

of $1,265 per person. 

So while I certainly appreciate as an academic exercise this abstruse lesson in the history of the Origination Clause, I speak for 

the millions of Americans benefitting from the law today in urging 

my colleagues to move on and address the real issues facing this 

country. 

Constitutionally, this is a frivolous hearing. The three witnesses 

for the majority have cited no court cases. We hear very interesting 

testimony, and I am going to read more about the Origination 

Clause in the Constitutional Convention and the debates in the 

Federalist. I find it fascinating. But essentially, and let me ask Mr. 

Onek if I am right in saying that the three witnesses of the majority are asking us to ignore two centuries of Supreme Court rulings 

and precedents on these questions, all of which point to the fact 

that there is simply no real constitutional question here. Mr. 

Kamenar said that the judge was wrong. But the judge was ruling 

pursuant to every single case that has been decided that I am 

aware of in the last two centuries. Am I correct, Mr. Onek? 

Mr. ONEK. That is correct. And Mr. Schmitz said, well, the Framers wanted to cover the raising of revenues. There was no primary 

purpose, nothing about incidental revenues. But of course, the 

three leading Supreme Court cases on that particular point have 

gone precisely the other way. They have said that certain taxes, 

which are taxes under the taxing power, are nevertheless not taxes 

for purposes of raising revenue within the meaning of the Origination Clause. 

Mr. NADLER. And that is well established. It is also well established that the Senate can amend to its heart content, and that 

there is no germaneness requirement, correct, Mr. Onek? 

Mr. ONEK. I believe that is absolutely correct. 

Mr. NADLER. And despite the histrionics by Mr. Gohmert, is it 

not correct that the precise manner of amending a House bill used 

by the Senate has been used many times before and upheld by the 

courts? 

Mr. ONEK. It has been used many times before—— 

Mr. GOHMERT. Nothing like this. 

Mr. ONEK. It has been approved in other cases. There is no Supreme Court that specifically has looked at a situation like this. 

But I do think it is very, very clear when a constitutional provision 

says that the Senate can make amendments as on all other bills, 

then that is the answer. 

Mr. Gohmert lifts up the big bill, but, in fact, if this was not a 

revenue bill, if this was some other kind of bill, the Senate could 

do it and does do it. And that is what the Constitution says, ‘‘as 

on other bills.’’ There is nothing wrong with substituting and 

amending. 

Mr. NADLER. Thank you. Let me ask either Mr. Schmitz, Mr. 

Kamenar, or Gaziano, have the Supreme Court and the Congress 

been simply misinterpreting the Origination Clause for the last 200 

years? Should courts and Congress simply ignore more than a cen-
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tury of precedent based on your interpretations of constitutional 

history? 

Mr. GAZIANO. The Supreme Court’s precedents are very clear 

that this is unconstitutional. The Supreme Court and no court has 

ever upheld the ‘‘gut-and-substitute’’ provision, nor could they ever. 

And the Supreme Court—— 

Mr. NADLER. Excuse me. Wait a minute. You said the Supreme 

Court had made clear this is unconstitutional. When has it done 

so? 

Mr. GAZIANO. This type of amendment is unconstitutional. And 

in all of its decisions, it has explained that this type of non-germane amendment. And by the way, all of our testimony is full of 

all the cases that, Supreme Court and otherwise, that say that an 

amendment must be germane. 

Mr. NADLER. Basically germane. 

Mr. GAZIANO. But a non-germane amendment is unconstitutional. 

Mr. NADLER. Mr. Onek, would you comment on the germaneness? In other words, Mr. Gaziano is saying that the Supreme 

Court has required germaneness for amendments. 

Voice. They did require germaneness in—— 

Mr. NADLER. Mr. Onek, is that correct? 

Mr. ONEK. No. There is one case that mentioned it in passing. 

Mr. GAZIANO. The most recent one in—— 

Mr. NADLER. Excuse me. I asked Mr. Onek. Go ahead. 

Mr. ONEK. No, they have not required germaneness, and how 

could they constitutionally? 

Mr. NADLER. Because? 

Mr. ONEK. Article 1, Section 5 says the House and Senate make 

their own rules. The Supreme Court cannot or the courts cannot 

tell the Senate whether it has to have germane rules or not. They 

cannot tell the House of Representatives whether they have to have 

germane—— 

Mr. NADLER. Thank you. Let me before my time expires say one 

sentence. I think that this is frivolous. I think the arguments are 

frivolous, but the Court will decide. Mr. Sissel is in court. Mr. 

Kamenar, I think, is representing him. That is the proper way to 

do it. The courts will decide. And we should in Congress be seeking 

to do the business of the American people instead of holding frivolous hearings and commenting on court decisions that are not going 

anywhere. I yield back. 

Mr. FRANKS. Thank you. You know, I guess that my conclusion 

here is if the Senate can do what they did, then we can tear the 

Origination Clause out of the Constitution. And if it is frivolous for 

the Constitution Committee of the House of Representatives tries 

to prevent that, then count me frivolous. And with that, I would 

recognize Mr. King for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I appreciate you holding 

this hearing, and the frivolous remark is troubling to me as well. 

I was thinking about the language that comes out of the other side 

of the aisle from us and how they tend to shape themselves in defense of our President no matter what kind of a thing he might assert. 
75 

And I remember the statement he made to the public and reiterated in his last State of the Union Address when he said I have 

a pen and I have a cell phone, and if Congress does not act, I will. 

It is not so much what he said. It was all the Democrats stood up 

and applauded the constitutional authority that is granted to them 

in Article 1 being usurped by the President of the United States 

right in the very front of them in a State of the Union Address. 

So I am not very moved by the constitutional arguments that I 

hear from my colleagues these days having seen that demonstration of them leading the standing ovations. 

However, I would turn to Mr. Onek, and I note some of the 

things in your testimony. The primary purpose of the individual 

mandate is not to raise revenue. I was also listening to the President in the passage debate period of time of Obamacare, and I, 

like, Mr. Gohmert have a lot of trouble saying ‘‘affordable care act.’’ 

I think that is a misnomer, and I have said that George Washington could not have uttered those words. 

But the primary purpose of it, as you said, was so that individuals will buy insurance. The President said I will not sign a bill 

that increases the deficit by one dime. So this needed to match the 

CBO score. It needed to match the actuarial figures. If it raised one 

dime, the fine, the penalty, the tax for the individual mandate, 

then that was a qualifier for the President to sign the bill. And do 

you have an estimate of how much revenue was raised or is projected to be raised, Mr. Onek? 

Mr. ONEK. You mean by the mandate? 

Mr. KING. Yes, by the individual mandate. 

Mr. ONEK. Well, in fact, although I do not think it is relevant, 

it does not raise revenue. It loses money. Last March—— 

Mr. KING. Wait a minute. We are talking about revenue. We are 

not talking about a balance sheet here. And so, if you are going to 

force people to pay an IRS tax bill, that is raising revenue. I think 

we have to agree with that here. 

Mr. ONEK. I believe—— 

Mr. KING. And so, can we agree that it raises more than dime? 

Mr. ONEK. It does indeed, but, in fact—— 

Mr. KING. And so, we would agree that that helped fill the score 

sheet up so that the President could keep his word this time. 

Mr. ONEK. No. 

Mr. KING. Well, okay. I probably got in dangerous territory when 

I said the President would keep his word. 

Let me move on. Each House shall determine the rules of its proceedings. And your statement is that the blue slip is not reviewable 

by the courts because each House determines the rules of its proceedings. Now, what is your resolution of this when the House and 

the Senate get into an impasse? Who then resolves that? 

Mr. ONEK. It does not. If the House issues a blue slip, then the 

bill does not pass, and the people ultimately judge that decision. 

Mr. KING. If the House determines by the rules of its proceedings 

that we simply, let us say, suspend the actions of the Senate and 

operate on our own. There are a number of hypotheticals. They are 

all in Mr. Gaziano’s head. I heard them all stream out here. 

I will turn to you, Mr. Gaziano. Can you imagine a scenario by 

which there would be a deadlock between the House and the Sen-
76 

ate because the rules of the proceedings were in conflict with each 

other? How then would that be resolved if the courts cannot hear 

the case? And your testimony was that the Congress and the courts 

should be involved. 

Mr. GAZIANO. Absolutely. And my bigger concern is what if the 

House is just in a particular mood and goes along with it? What 

if the House passes a rule that deems a majority to be two-thirds 

for overriding of a presidential veto? The House wants to override 

that veto. We all agree the courts would have to resolve that. 

What if the House passed 160 one-house vetoes, and they were 

just loving it? Well, actually they did do that. And the Supreme 

Court said, your rules that we cannot review are your internal 

ones, but not the constitutional rules. The two-thirds-vote requirements, the Origination Clause, the Bicameralism and Presentment 

Clause, those are constitutional. The courts have to enforce those. 

Mr. KING. So your testimony is both the courts and the Congress 

would be engaged in—— 

Mr. GAZIANO. Well, the Congress, if it does its job—I think Mr. 

Onek is right about one thing. If the House does its job, it will 

never ever create a case of a bill passed unconstitutionally. But the 

courts are around for bills that are unconstitutional. So the 

Obamacare act, for example, this body’s desire to pass the law before you read it, that was just an illegal procedure. And the House 

cannot acquiesce in a violation of the Constitution of that nature. 

Mr. KING. Thank you, Mr. Gaziano. Mr. Chairman, I appreciate 

it and yield back the balance of my time. 

Mr. FRANKS. I thank the gentleman, and I will recognize Mr. 

Johnson for 5 minutes. 

Mr. JOHNSON. Thank you. Mr. Onek is a graduate of the Harvard 

University, the Yale Law School. When he came out of law school, 

he clerked for a United States Supreme Court justice. He has 

served in high positions including the counsel to the President, I 

believe. And he has served in the legislative branch as a senior 

counsel to the Speaker of the House. Those are all high-level positions. Would you agree, Mr. Schmitz, that it would be in error to 

characterize the legal position of Mr. Onek’s on this particular matter as preposterous? Would you disagree with that? 

Mr. SCHMITZ. No, not based on what you said, Congressman. 

Mr. JOHNSON. So in other words, his position is not preposterous, 

correct? 

Mr. SCHMITZ. Not based off his past occupation. 

Mr. JOHNSON. And would you agree with that, Mr. Kamenar? 

Would you agree that his position is not preposterous, yes or no? 

Mr. KAMENAR. It is preposterous under the Constitution. 

Mr. JOHNSON. All right. Okay. 

Mr. KAMENAR. We are doing a reverse ad hominem. 

Mr. JOHNSON. How about you, Mr. Gaziano? 

Mr. GAZIANO. Much of what he says is very interesting, but the 

important parts are very preposterous. 

Mr. JOHNSON. Preposterous, okay. All right. So we have got some 

guys who probably could not carry Mr. Onek’s briefcase to the U.S. 

Supreme Court who say that his position is preposterous. And I 

think that is preposterous, and I salute you, Mr. Schmitz 

Mr. GAZIANO. If I could clarify—— 
77 

Mr. JOHNSON. I have got the floor, sir. Thank you. Now, listen, 

Mr. Kamenar, you said that Justice Roberts issued a novel opinion 

on the constitutionality of the Affordable Care Act because he 

found that it was a constitutional use of legislative authority under 

the taxing authority. 

Mr. KAMENAR. Correct. 

Mr. JOHNSON. Not the—— 

Mr. KAMENAR [continuing]. Commerce clause. 

Mr. JOHNSON [continuing]. Commerce clause. But now you are 

arguing that this is a revenue raising bill, which is a part of the 

taxing authority. 

Mr. KAMENAR. That is correct. 

Mr. JOHNSON. Okay. Was there any issue raised during the legislative debate, which was at least a year—which was longer than 

a year—on the Affordable Care Act before it passed. Were there 

any senators on your side of the aisle who argued that the Affordable Care Act under the way that it was presented back to the 

House was a non-germane amendment? 

Mr. KAMENAR. Was what kind of an amendment? 

Mr. JOHNSON. Was the amendment of the House bill sent to the 

Senate and then sent back to the House as the Affordable Care 

Act—— 

Mr. KAMENAR. Right. Right. 

Mr. JOHNSON [continuing]. Were there any objections raised by 

Republicans senators about germaneness? 

Mr. KAMENAR. Well, they raised objections by not voting for it. 

Mr. JOHNSON. Well, did they actually raise the objection? 

Mr. KAMENAR. I am not aware of it, but—— 

Mr. JOHNSON. All right. Now, let me ask this question. Did anyone in the House of Representatives raise the germaneness issue? 

Mr. GAZIANO. It was not thought to be a tax. The Senate said it 

was a penalty. The President said it was a penalty. Why would the 

House blue slip something that everyone thought was a penalty? 

I submit the Supreme Court still got it wrong. Chief Justice Roberts still got it wrong, but we are faced with the fact that now that 

is the opinion of the Supreme Court. 

Mr. JOHNSON. Let me ask you this. Let me ask you this then. 

How would that wrongness be any more preposterous than failing 

to find that Congress had the power under its ability to regulate 

interstate commerce to legislate the Affordable Care Act? How is 

it any more preposterous than that? 

Mr. GAZIANO. Well, the fact is it is either unconstitutional for one 

reason or it is unconstitutional for another. And given that the Supreme Court said it is only constitutional if it is a tax, we now have 

to do determine whether it is the type of tax that is constitutional 

or not, and it just is not. 

Mr. JOHNSON. Last but not least, should the Court be the arbiter 

or whether or not an amendment to a House bill is germane or not, 

or should not that be the power of the legislative branch to do? Mr. 

Onek? 

Mr. ONEK. I believe that clearly under the separation of powers 

doctrine and, more specifically, under Article 1, Section 5, the Senate and the House should make that decision. The House could 

have blue slipped this bill. Mr. Gaziano says, oh, they did not know 
78 

the mandate was a tax. But, of course, in their briefs they say 

there were a hundred taxes in the bill or whatever number. So 

there were plenty of other provisions they could have said were 

taxes. But they did not blue slip the bill. 

Mr. KAMENAR. How can a minority blue slip? 

Mr. JOHNSON. For me it is just simply another opportunity that 

the Republicans are taking to try to do away with the Affordable 

Care Act. And I will relinquish the balance of my time. Thank you, 

Mr. Chairman. 

Mr. FRANKS. Thank you, sir. Just for the record, the Origination 

Clause that has been talked about here today was originally to 

make sure that the taxing power was closest to the people. That 

was its purpose. And if the Supreme Court enforces it and upholds 

that, it will return that taxing power closer to the people. My comments were that Mr. Onek’s testimony was that if the Court got 

involved and did that, that it would take it away from the people. 

That is what I found preposterous, and I do not have the vocabulary to think of a word that more accurately reflects my conviction. 

So I stand by that. 

And with that, I would now recognize Mr. DeSantis for 5 minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman. Thanks for the witnesses. Mr. Onek, when you started your testimony, you had made 

reference to the reason why the Senate had not sent over the Gang 

of Eight immigration bill. So do you acknowledge that the Gang of 

Eight immigration bill, because it has revenue raising measures, 

violates the Origination Clause of the Constitution? 

Mr. ONEK. I am not an expert on the bill, so I do not know that. 

But at least it is my understanding that there is a concern in the 

Senate, and, therefore, that is why they have not sent it over. And 

based on that, it demonstrates that the Origination Clause lives. It 

lives. 

Mr. King has left, but he is an expert on immigration. I am sure 

that if the bill came over, he would be leading the fight for the blue 

slip, and it shows the Origination Clause is not a dead letter. It 

lives. That is my point. 

Mr. DESANTIS. All right. So bottom line is if there are taxes in 

there, you would acknowledge that that is an Origination Clause 

problem. 

Mr. ONEK. I obviously would have to look at the particular taxes 

and so on, but in general if the Senate passes a bill with tax provisions—— 

Mr. DESANTIS. I think there are, like, tens of billions of dollars 

of different revenue. 

Mr. ONEK [continuing]. That creates a—— 

Mr. DESANTIS. All right. Well, I just wanted to see that because, 

you know, obviously you were invited by the minority, but I think 

when those witnesses are able to acknowledge maybe some problems with some of the political platforms of those who brought 

them, I think it gives them a little more credibility. 

Now, if the House were to pass a similar bill to what happened 

in 2009, say, a tax credit for veterans bill, could the Senate strip 

that entirely and substitute a 20 percent national vet tax, and 

would that be constitutional or would that violate the Origination 
79 

Clause? And I will let you go, Mr. Onek, but any witness. I mean, 

if you could kind of give me your take on that. 

Mr. KAMENAR. I do not think it would, of course, but Mr. Onek 

said it would because they can amend as on any other bills. So 

your example, he would agree that you could take any House bill 

that raises a dime and throw in a $500 billion tax bill, a corporate 

tax, inheritance tax, Obamacare tax, whatever. That is the logic of 

their argument. 

Mr. ONEK. And the logic is that the courts cannot intervene. 

Nothing, of course, would stop the House from simply not passing 

the Senate bill. It does not even need a blue slip. It can just not 

pass it. The House does not pass lots of Senate bills and vice versa. 

Or, more specifically, it could use the blue slip—— 

Mr. DESANTIS. But if it is controlled by the same party—— 

Mr. GAZIANO. But in every one of Mr. Onek’s examples is as if 

the House did its job. The courts could not act, and I agree with 

that. But the question we have here is what if the House is controlled by a party that is interested in violating the Constitution— 

let us just take that as a hypothetical—and accepts a 2,074-page 

bill that was supposedly a complete ‘‘gut-and-strip’’ of its six-page 

unrelated bill, what happens then? Then of course the Supreme 

Court has said that the courts are obligated to take that case. 

In Munoz-Flores in 1990—I should say earlier in Flint v. Stone— of course the Supreme Court said there is a germaneness requirement because the Origination Clause would be empty if there was 

no Origination Clause. It would be a dead letter if there was no 

germaneness test. 

And so, in Munoz-Flores, the Supreme Court said we conclude 

initially that this case does not present a political question, and, 

therefore, reject the government’s argument that the case is not 

justiciable. Then if they took your hypothetical, sir, they would 

have to strike it down because there was nothing in the original 

bill that was remotely germane to a 20 percent back tax. 

Mr. DESANTIS. And I think part of the problem is that a lot of 

folks in this body I have found, and I was not here for the 

Obamacare debate, you know, when it comes to the Constitution 

they basically say, well, look, you know, we do what we want in 

Congress until the courts stop us. So they are kind of having it 

both ways in some of this, that they do not have an independent 

duty. I think we have an independent duty to follow the Constitution. If we have a bill that violates the Constitution, we are obligated to vote no on that. 

Now, I think what happened here, and my response to Mr. Onek 

would be, the House did not have to pass Obamacare. I mean, after 

all there was the Senate bill. But the political context is very different. I mean, it originated a different bill in the House—and I 

was not in Congress then, but I was following this—that did not 

have the votes in the Senate. So then the Senate did their own bill, 

60 votes, Christmas Eve, got something through. And they were 

going to try to merge them somehow and come up with something. 

But Scott Brown got elected in Massachusetts. Wow. I mean, one 

of the most liberal States in the country, they elect a Republican 

to the U.S. Senate to fill Ted Kennedy’s seat because they did not 

like what they were seeing with what was going on with what 
80 

would soon be Obamacare. So the House, and people like Nancy 

Pelosi—— 

I mean, look, this is a progressive thing that they wanted for decades. And so they are left with you either take the Senate bill or 

you lose. And the Origination Clause, I do not think that was even 

something they were worried about in the slightest. I think it was 

we have this here. We are going to pass it. Of course, they used 

budget reconciliation in the Senate to get the amendments through. 

So the Origination Clause was just given shrift by the folks in 

the House. They chose doing this based on the politics of the moment. I think it was the wrong decision, but I do not think we had 

the lively debate that we should have. And I yield back. 

Mr. FRANKS. Well, this has been certainly a very interesting discussion, to say the least. And I want to thank all of the Committee 

Members for attending, and I want to thank all of the panelists. 

Mr. Onek, regardless of my disagreement with you, sir, I genuinely 

respect and appreciate your presence here today. 

Mr. ONEK. Thank you very much. 

Mr. FRANKS. And with that, it does conclude today’s hearing. And 

again, I thank you all for attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

And I do thank the witnesses again and thank the Members and 

the audience. And the hearing is adjourned. 

Voice. Thank you. 

[Whereupon, at 11:31 a.m., the Subcommittee was adjourned.] 
(81) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice 

This is my first hearing as Ranking Member of the Subcommittee on the Constitution and Civil Justice. I am honored to serve as Ranking Member and look forward 

to working with Chairman Trent Franks, who I had the pleasure of working with 

back in the 111th Congress when I was chairman of the Subcommittee on Commercial and Administrative Law and he was the Ranking Member. 

Today’s hearing is titled ‘‘The Original Meaning of the Origination Clause.’’ We 

can all agree that the Origination Clause plays an important role in ensuring that 

the House of Representatives—the ‘‘People’s House’’—has the first say when it 

comes to bills related to revenue. As the chamber that most directly represents the 

people, this is as it should be. 

But, we must also remember that the Constitution reflects a series of political 

compromises made by the Framers to ensure that the competing interests of various 

states and regions were addressed. 

Foremost among these is the makeup of Congress itself. The structure of the 

House, with its proportional representation and two-year terms, favors states with 

large populations. Small-state interests, meanwhile, are protected by the structure 

of the Senate, where all states have equal representation regardless of size. 

The Origination Clause, as currently drafted, reflects this balancing of interests. 

While giving the House exclusive authority to originate ‘‘Bills for raising Revenue,’’ 

the clause also gives the Senate broad leeway to ‘‘propose or concur in amendments 

as on other Bills.’’ 

This balance has largely worked. Through more than a century of judicial and 

congressional interpretation and enforcement, the House’s prerogative to originate 

not only revenue-raising bills, but all bills relating to revenue, is clearly established. 

At the same time, the Senate’s broad authority to amend any revenue bill is also 

clearly established. 

Some observers, however, believe that the Origination Clause is in peril. In particular, these observers, including some of our witnesses today, allege that Congress 

did an end-run around the Origination Clause when it passed the Patient Protection 

and Affordable Care Act and, in particular, its ‘‘individual mandate’’ and the related 

‘‘shared responsibility payment.’’ 

As will be made more evident during our discussion today, neither the facts nor 

the law support that assertion. Supreme Court precedent and congressional practice 

make clear that a bill with a primarily non-revenue purpose is not a bill ‘‘for raising 

Revenue’’ within the Origination Clause’s meaning, even if the bill raises revenue, 

so long as the revenue supports a government program. 

Here, as the Supreme Court concluded in 2012 in National Federation of Independent Business v. Sebelius, the Affordable Care Act had the primary purpose of, 

among other things, expanding health insurance coverage. 

And the individual mandate and shared responsibility payment was the key to 

meeting this goal. 
82 

I note that today’s hearing is taking place a little over a week before the U.S. 

Court of Appeals for the District of Columbia Circuit hears oral arguments in Sissel 

v. HHS, where the plaintiff challenges the constitutionality of the Affordable Care 

Act on Origination Clause grounds. I question whether it is the best use of resources 

for this Subcommittee to be holding this hearing on a matter that is still pending 

before the federal courts. 

Nonetheless, I look forward to our discussion and I thank the witnesses for their 

appearance today. 

f 
83 

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

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

Although the official title of today’s hearing is ‘‘The Original Meaning of the Origination Clause,’’ the real objective of this hearing is to provide yet another opportunity for opponents of the Patient Protection and Affordable Care Act to attack this 

duly enacted law. 

In fact, there already have been 54 attempts in the House to repeal the Act. This 

is in addition to the numerous hearings that various committees in this body have 

held on the same subject matter. 

Today’s hearing, which attacks the Act’s individual mandate and related ‘‘shared 

responsibility payment’’ provisions on the basis that they violate the Constitution’s 

Origination Clause, is a particularly fruitless undertaking for several reasons. 

For example, let’s begin with the fact that the Constitution’s Origination Clause 

does not even apply to the Act. 

The Clause requires that ‘‘Bills for raising Revenue shall be originated in the 

House of Representatives; but the Senate may propose or concur with amendments 

as on other Bills.’’ 

But based on more than a century of judicial and Congressional precedents, it is 

absolutely clear that the Act’s individual mandate requirement presents no Origination Clause problem. 

This is because measures with primarily non-revenue purposes—even if they contain provisions that would raise revenue—simply are not ‘‘Bills for raising Revenue’’ 

within the meaning of the Clause, as the Supreme Court has made abundantly 

clear. 

As recently as its 2012 decision upholding the constitutionality of the Act in National Federation of Independent Business v. Sebelius, the Court specifically held 

that the Act’s individual mandate was not a ‘‘Bill[] for raising Revenue’’ under the 

Origination Clause. 

It reasoned that Congress’ taxing power ‘‘is often, very often, applied for other 

purposes, than revenue.’’ The Court found that that the primary purpose of the Act’s 

individual mandate and of the Act generally was, among other things, to expand 

health insurance coverage. 

And, even if we were to assume that the Origination Clause somehow applies to 

the Affordable Care Act, the measure does not violate the Clause’s requirements. 

Even a cursory review of the legislative history of the Act establishes this fact. 

The House measure that the Senate amended to add the text of its version of the 

Affordable Care Act was a revenue bill. As explicitly authorized by the Origination 

Clause, the Senate then had broad authority to replace the underlying House-originated revenue bill with its measure. 

Not surprisingly, the District Court rejected an attack on the Act for purportedly 

violating the Origination Clause for these very same reasons. 

Finally, rather than wasting time on yet futile another attack against the Affordable Care Act, this Committee should be focusing on the real, not imagined, problems that Americans desperately want addressed. 

These include: 

• fixing our Nation’s broken immigration system; 

• solving the problem of crushing student loan that results in virtual debt peonage for our young people; and 

• creating more job opportunities by strengthening the competitiveness of our 

Nation’s businesses. 

Instead, we will spend this morning addressing phantom issues created by the 

Act’s opponents in an effort to derail the law, this time under the guise of constitutional analysis. 

I again urge my colleagues on the other side of the aisle to spend the remaining 

time left in this Congress to focus on real issues. 

Æ