'A Source of Frequent and Obstinate Altercations': The History and Application of the Origination Clause
by Michael W. Evans
Date: Nov. 29, 2004

Full Text Published by Tax AnalystsTM

Michael W. Evans is a partner in the Washington law firm of Preston Grates Ellis & Rouvelas Meeds. In 2001-02, he was the chief counsel and deputy staff director of the U.S. Senate Committee on Finance. In 1983-90, he was tax counsel and legislative director for Sen. Max Baucus.

In this report, Evans provides a comprehensive overview of the Constitution's Origination Clause, which requires all revenue bills to originate in the House of Representatives. First, he describes its historical development, going back to the British Parliament and the Constitutional Convention. Then he describes the practical application of the clause, including its enforceability, its application to different classes of congressional legislation, and the scope of the Senate's power to amend a House revenue bill.

The author would like to thank those on the congressional staff, especially the staff of the Senate Finance Committee, the Office of the Senate Parliamentarian, and the Senate Library, who have advised and assisted him over the years. He would also like to thank Heidi Werntz and Elise Sweeney, who reviewed drafts of the article.

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Table of Contents


I. The Development of the Origination Clause

II. The Application of the Origination Clause
Concluding Observations


Congress, in considering revenue legislation, occasionally faces a "blue slip problem." A question arises concerning whether a Senate bill or amendment offends the Constitution's Origination Clause, with the result that, if the provision passes the Senate, the House will respond with a blue slip -- a resolution, printed on blue paper, that informs the Senate that it is the opinion of the House that the bill infringes on the House's constitutional prerogative to originate revenue legislation and that, accordingly, the House refuses to consider it.

That slip of blue paper signals a problem faced since colonial times: how to distribute the power to raise revenue in a bicameral legislature. It is a problem with not only deep historical roots, reaching back before the Constitution, but also important practical applications. For example, over the past few years, Congress has faced Origination Clause questions for legislation increasing the federal debt limit and establishing new user fees.

This article is intended to help the reader analyze those questions by providing a comprehensive review of the Origination Clause. The article is divided into two main parts. The first part is historical. It describes the roots and development of the Origination Clause -- specifically, the English parliamentary background and the debate at the Constitutional Convention. The second part describes the application of the Origination Clause, covering major congressional and court precedents. It also discusses specific issues that have arisen in practice, such as the application of the Origination Clause to appropriations bills, trade bills, and bills regarding the issuance of public debt. Also, a brief conclusion summarizes key points and makes some observations about the Origination Clause's current impact.

I wrote the article in three stages. Over 10 years ago, as tax counsel to Sen. Max Baucus, D-Mont., I initially became interested in the Origination Clause. In particular, I sought to understand what the framers were attempting to accomplish when they wrote the clause. That led to an article about, among other things, the Constitutional Convention debate regarding the Origination Clause.1 More recently, as chief counsel to the Senate Finance Committee, I tried to better understand the practical applications of the Origination Clause. Finally, over the past 18 months, I combined the historical research and practical experience into this article. I hope it provides a useful guide to practitioners, both on Congressional staffs and in private practice, faced with a potential blue-slip problem.

I. The Development of the Origination Clause

A. The English Background

The early American view of proper government was formed against the backdrop of the long struggle for English liberty. Central to that struggle was the assertion that the power to tax the public at large must reside in the representatives of the people, embodied in the House of Commons. That evolved into the principle that money bills must originate in the House of Commons and may not be amended by the House of Lords. As one commentator put it, "The commons are the granting, the lords the consenting power."2 William Blackstone described the English practice this way:
An incident in 1671 shows how strongly the House of Commons objected to any encroachment by the Lords on the Commons' authority to originate money bills. The House of Commons sent the House of Lords a tariff bill, which the House of Lords purported to amend to reduce the proposed tariff on sugar. The House of Commons responded sharply, passing a resolution rejecting the amendment and declaring:
The House of Lords relented and never again sought to make substantive amendments to revenue bills.

In America, several colonial and state legislatures had similar limitations on their upper legislative chambers' power to originate money bills. At the time of the Constitutional Convention, in 1789, 8 of the 13 state constitutions required money bills to originate in the lower chamber (although several permitted the upper chamber to amend).5

B. The Constitutional Convention

When the delegates to the Constitutional Convention arrived in Philadelphia in May 1789, one of their principal objectives was to expand the federal government's power to raise revenue. The limitation on that power had been one of the principal flaws of the Articles of Confederation. James Madison had repeatedly proposed a national tariff to pay off debts to the army, to European powers, and to others; but Congress, requiring unanimity in such matters, had failed to enact the tariff because of the opposition of a single state (generally, Rhode Island). That, in turn, contributed to widespread bankruptcy, rampant currency speculation, economic chaos, and, overall, what Alexander Hamilton called a time of "national humiliation."6 In light of that experience, the delegates quickly agreed to give the new government the power to raise revenue.7

At the same time, they imposed two limitations on the federal government's power to raise revenue. First, they prohibited Congress from imposing direct taxes.8 Second, they imposed procedural limitations based on the English model, and the consideration of those limitations triggered a debate that persisted until the conclusion of the convention.

Elbridge Gerry of Massachusetts first proposed the procedural limitations. When Edmund Randolph proposed the Virginia Plan, which served as the basis for the initial debate about the structure of the legislature, it called for the establishment of a bicameral legislature and gave each chamber the "right of originating acts." Gerry objected. He argued the lower chamber would be more directly representative of the people, "and it was a maxim, that the people ought to hold the purse-strings." Accordingly, he proposed that the Constitution include a clause providing that the lower chamber have the exclusive power to originate money bills and that the upper chamber's power be limited to accepting or rejecting the bill.9

Several delegates agreed. George Mason of Virginia asserted that "the first branch would be the immediate representatives of the people; the second branch would not. Should the latter 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."10 Benjamin Franklin added that it was "a maxim, that those who feel, can best judge," and that this end would "be best attained, if money affairs were to be confined to the immediate representatives of the people."11

Others disagreed. Charles Pinckney of South Carolina said that a similar provision of the South Carolina Constitution "has been a source of pernicious disputes between the two branches" and was commonly evaded.12 Later, he argued that the Origination Clause should be deleted, "as giving no peculiar advantage to the House of Representatives, and as clogging the Government. If the Senate may be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills."13 Pierce Butler, also of South Carolina, complained that "[w]e [are] always following the British Constitution, when the reason for it did not apply."14

Throughout the debate, the opposition to the Origination Clause was led by James Madison. He argued the members of the Senate "would be generally a more capable set of men, [and] it would be wrong to disable them" from considering any issue, especially "that which was most important."15 He also argued that a requirement that revenue measures originate in the House was essentially meaningless, because it could easily be circumvented and would be "a source of frequent and obstinate altercations."16

Eventually, the Origination Clause became linked to the convention's central debate about the nature of representation in the revised national legislature. Strong nationalists supported the Virginia Plan, which would replace the Confederation system of equal state representation with a system of proportional representation based on population. Those nationalists were joined by representatives of large states that would benefit most from that system. Others, including both the "anti-federalists" who feared an excessive concentration of national power, and the representatives of small states like New Jersey, Delaware, and Rhode Island, sought to maintain equal state representation.

When a deadlock occurred, the delegates appointed a special committee to seek a compromise. After a few days, the committee proposed what has come to be known as the "Great Compromise." Two paragraphs long, it amended the Virginia Plan to satisfy the small states' demand for equal representation in the Senate. To mollify the large states, it further provided that "all bills for raising or appropriating money . . . shall originate in the first branch of the Legislature, and shall not be altered or amended by the second branch[.]"17 After presenting the compromise, Elbridge Gerry warned how delicately it hung together, cautioning that "those opposed to the equality of votes have only assented conditionally, and could withdraw their support if any element of the compromise were significantly modified."18

As the delegates debated the Great Compromise over several weeks, the Origination Clause was modified in two significant ways. First, its scope was limited. The initial version would have applied to all "money bills." An interim version would have applied to "bills for raising money for the purposes of revenue, or for appropriating the same, and for fixing the salaries of the officers of the Government."19 The final version applied only to "bills for raising revenue."20

Second, the Senate's power to amend was expanded. The version of the Origination Clause contained in the Great Compromise was similar to the English model, prohibiting the Senate from amending revenue bills in any way. After that version was rejected, proponents of the Origination Clause proposed to expand the Senate's role, giving the Senate the power to amend revenue bills, but not in such a way "as to increase or diminish the sum to be raised, or change the mode of raising."21 After the proposal failed, they proposed simply that "the Senate may propose or concur with amendments as in other cases."22

Following further debate about the general merits of an Origination Clause, and after several versions of the clause had been rejected, the delegates reserved judgment until, as James Madison put it, "the powers of the Senate should be gone over."23 Several weeks later, the delegates finally resolved those powers, giving the Senate the exclusive power to ratify treaties and try impeached officials. That done, they immediately took up the Origination Clause, approving a compromise proposed by Caleb Strong of Massachusetts and modified slightly by the Committee on Detail. It provided: "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."24 Thus, it appears that the large states agreed to enhance the powers of the Senate at least in part in exchange for the small states agreeing to a compromise version of the Origination Clause.

A little more than a week later, the Constitution was signed and sent to the states for ratification, with the compromise Origination Clause included as the first clause of section seven of article one.

During the ensuing ratification debate, James Madison explained why the compromise version of the Origination Clause was important (perhaps ironically, given his consistent opposition to the Origination Clause during the convention). He was writing for an audience in New York, whose delegates had supported a stronger version of the clause. Madison explained that, although the clause was weaker than many New Yorkers would like, it would still be effective:

II. The Application of the Origination Clause

A. Generally

As the first Congress began its work, much about the application of the Origination Clause remained to be settled. While the Constitution provided that only the House could "originate" a revenue-raising bill, it allowed the Senate to "propose or concur with amendments, as on other bills." Although the Framers were familiar with each of those terms from the procedures of the British Parliament, the colonial and state legislatures, and the Confederation Congress, the terms had not been defined or applied in the context of the powers and practices of the new Congress. Further, the limitation on the Senate's origination of bills applied only to bills for "raising revenue," and the term had various possible interpretations. Finally, it was not clear how the clause would be enforced.

As time passed, each of those issues was debated in Congress and the courts, resulting in a body of precedents construing the Origination Clause. The remainder of this article explains those precedents, by addressing the following questions:

B. Who Decides?

One could argue that it is the prerogative of Congress itself, and particularly of the House of Representatives, to enforce the Origination Clause. The clause, the argument generally would go, was established to benefit the House; if the House declines to enforce it in a particular situation, courts should defer to that decision.

The Supreme Court has rejected that argument. As a result, the Origination Clause is enforced both by the House and Senate and by the courts.

Regarding enforcement by the courts, the Supreme Court has expressly rejected the argument that the application of the Origination Clause is a political question beyond the purview of the judiciary. This point was implicit in several early cases, in which the Court considered but rejected challenges to the Origination Clause.26 It was made explicit in the 1990 case of United States v. Munoz-Flores.27 In that case, a convicted criminal defendant was required to pay a "special assessment," which was deposited in a fund used to defray the cost of providing assistance and restitution to the victims of crimes. The defendant argued that the statute creating the special assessment was a revenue measure that, having originated in a Senate bill, had been enacted in violation of the Origination Clause.

The threshold question was whether the Court should consider the challenge at all. The government argued that it should not, because the challenge presented a political question that should be left to the political branches. The Supreme Court disagreed, concluding that "the fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the judiciary remove itself from the controversy by labeling the issue a political question."28 The Court then turned to the merits of the challenge, concluding that the Senate bill was not a revenue measure and therefore that the Origination Clause had not been violated (that aspect of the decision is discussed below).29

Regarding enforcement by the House, the formal enforcement of the Origination Clause typically takes the form of a House "blue slip" resolution, by which the House returns a bill to the Senate accompanied by a statement that the bill violates the Origination Clause and, therefore, is an infringement on "the privileges of this house."30 The House sometimes takes other negative action, such as simply failing to act on the Senate bill and reporting an original House bill in its place.31

For enforcement by the Senate, the formal enforcement of the Origination Clause typically takes the form of a point of order made against a bill or amendment during debate on the Senate floor. For example, in 2001, Sen. Baucus, then-chair of the Finance Committee, made a point of order against a tax amendment to an original Senate bill, on the ground that "the amendment would affect revenues on a bill that is not a House-originated revenue bill,"32 and the point of order was sustained by a vote of the Senate.33

When the House and Senate enforce the Origination Clause, they usually rely on the Supreme Court's precedents as well as their own.34 However, that does not mean that Congress is held to precisely the same legal standards that are applied by the courts. As a practical matter, the House has the final word when it refuses to consider a Senate measure on Origination Clause grounds, because the Senate has no procedural recourse. Also, even when the House accepts a Senate provision that raises a serious Origination Clause issue, House leaders sometimes insist they are not setting a binding precedent and reserve the right to urge the House to reject similar bills in the future.35

C. When Does the House Originate a Bill?

In the most basic sense, to originate in the House, a revenue provision must begin its legislative life in a House bill rather than in a Senate bill. Accordingly, the House has consistently refused to consider Senate bills that, in the opinion of the House, contain revenue measures. When those bills have passed the Senate and been sent to the House, the House typically has responded by passing a resolution refusing to consider the Senate bill. That occurred first in 1859,36 most recently in 2001,37 and dozens of times in between.

The Senate has agreed with that basic interpretation. For example, in 1925, when the Senate was considering a Senate bill to tax gasoline sold in the District of Columbia, a senator made a point of order that the bill was a revenue bill that must originate in the House, and the point of order was sustained.38 As a related matter, the House may not amend a Senate-originated bill with a revenue measure. Although that point is ordinarily made, implicitly, by the House itself, by refraining from considering such amendments, it was confirmed when, in 1915, a federal district court invalidated a House revenue amendment to a Senate-originated bill.39

The Senate also has agreed that it may not add a revenue amendment to a House bill that is not a revenue bill. For example, in 1864, the House passed a bill calling up additional armed forces to fight the Civil War. When the bill was sent to the Senate, the Senate added several amendments, including one establishing a surtax on incomes. The House responded with a resolution insisting that the Senate surtax was "an infringement of the privileges of [the] House," and returned the amendments to the Senate.40 The Senate quickly acquiesced and passed the bill again with all Senate amendments except the surtax, and the House then accepted the Senate amendments.41 A few years later, the Senate conceded the point expressly. In 1872 during a major Origination Clause dispute between the House and Senate (which is discussed fully below), a Senate committee, in a detailed report on the two chambers' respective power regarding revenue measures, said

Although the Senate has agreed that it may not either pass a revenue bill or add a revenue amendment to a House bill that is not a revenue bill, it long ago rejected the idea that it must wait until receiving a House revenue bill before beginning its own work. Instead, the Senate has taken the position that it can independently consider Senate revenue bills -- that is, senators can introduce revenue measures, the Senate Finance Committee can report them, and the full Senate can consider and amend them on the Senate floor -- if the Senate does not formally pass them and send them to the House.

At first, the Senate took a stricter view. In 1828, under the leadership of Jacksonian Democrats who were especially strong in the House, Congress passed a tariff bill establishing high tariff rates. Southerners reacted angrily, labeling the law the "Tariff of Abominations" and, in the case of South Carolina, threatening to secede. Others sought compromise, especially in the Senate. In 1831, Sen. Thomas Hart Benton, Jacksonian-Mo., sought leave to introduce a bill to reduce tariff rates, but leave was denied, in part because Senators believed that the Senate's inability to originate a revenue bill prevented it from considering such a bill in any way until one had been received from the House.43

In 1833 the issue arose again, with a more complicated result. Newly elected Sen. (and former Speaker of the House) Henry Clay, R-Ky., wrote a bill that he hoped would constitute an acceptable compromise of the tariff question. Acknowledging that "this course of action is out of the usual practice of this body," he sought leave to introduce the bill as a Senate bill.44 Once again, there were objections, with Sen. John Forsyth, R-Ga., arguing that "the constitution forbids that the first action on a bill of this character should be in the Senate."45 Eventually, Clay was allowed to introduce his bill, and it was debated and amended on the Senate floor.46 After the Senate amending process concluded, but before the Senate voted on final passage of the bill, one of Clay's House allies introduced a new House bill that was identical to the amended version of the Senate bill; the House quickly passed the bill and sent it to the Senate, where it was passed without amendment, with the Senate reporter of debate noting that the Senate was passing "in effect, Mr. Clay's bill."47 Thus, while paying formal respect to the House's prerogative, the Senate had implicitly asserted the right to consider, debate, and amend revenue bills right up to the point of final Senate passage.48

As time went on, it became common for senators to introduce revenue bills. Nevertheless, for many years, the usual practice was for the Senate to refrain from undertaking the detailed work of considering a revenue bill in the Finance Committee or on the Senate floor until it had received a House bill to amend. This can be seen from three diverse examples. In the cases of the 1913 Income Tax Act,49 the 1930 Smoot-Hawley Tariff Act,50 and the 1969 Tax Reform Act,51 a House-passed revenue bill was referred to the Senate Finance Committee, which held hearings on the House bill and reported an amended version that was then considered by the full Senate.

In recent years, adherence to this "classical model" seems to have been more the exception than the rule,52 with the Finance Committee frequently reporting an original Senate revenue bill for the consideration of the full Senate, and the Senate deferring to the House's prerogative only at the last moment, when it takes up a House revenue bill and amends it by substituting the Senate text.53 That may reflect political considerations (such as when the House and Senate are controlled by different parties); it also reflects the influence of the budget reconciliation process, which sometimes requires the Ways and Means and Finance Committees to report legislation by the same deadline, making it impossible for the Finance Committee to wait for a House bill.54 Nevertheless, the classical model sometimes comes into play. The best relatively recent example may be the Tax Reform Act of 1986. After President Reagan made a detailed proposal for comprehensive tax reform in early 1985, the Ways and Means Committee held a series of hearings on the proposal and eventually reported a bill, H.R. 3838, that the House passed and sent to the Senate, where it was referred to the Finance Committee. In January through March of 1986, the Finance Committee held seven hearings on H.R. 3838 (it also had held hearings on the President's proposal in 1985). In May the committee reported H.R. 3838 with an amendment constituting a complete substitute, and the amendment was then debated extensively on the Senate floor and passed by the full Senate, after which a conference committee reconciled the House and Senate versions. Thus, although the Finance Committee developed a complete substitute amendment that was very different from the House bill, it had waited for the House bill and used it as the starting point for its work.

D. What Is a Bill for Raising Revenue?

Generally. The delegates to the constitutional convention narrowed the application of Origination Clause, from the English model, which applied to "all money bills," to the final compromise, which applied only to "all bills for raising revenue."55 In doing so, the framers triggered a controversy that persists to this day. In his early commentary on the Constitution, Justice Joseph Story wrote that the clause only applies to "bills to levy taxes in the strict sense of the word," and not to "bills for other purposes, which may incidentally create revenue."56 Although this basic formulation has become well established, distinguishing between the two categories is probably the most frequent source of Origination Clause disputes between the House and Senate.

The Supreme Court Framework. The issue arose in two early Supreme Court cases. In the first, the 1896 case of Twin City Bank v. Nebeker,57 a bank challenged the imposition of a federal charge on banks' circulation of federal bank notes, the proceeds of which were used to offset the cost of operating the national banking system. The act imposing the charge had originated as a Senate bill, and the House had passed the bill without raising an Origination Clause objection. The bank argued that the charge nevertheless was a revenue measure, which, having originated in a Senate bill, violated the Origination Clause.

The Supreme Court rejected the challenge. The Court began by disclaiming the need for either "an extended examination of the precedents" or "a full discussion of the meaning" of the phrase "bills for raising revenue."58 Rather, the Court said, "What bills belong to that class is a question of such magnitude and importance that it is the part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject."59 After describing the statute and invoking Justice Story's commentary, the Court concluded:

In the second case, a few years later, the Court reached a similar conclusion. In Milliard v. Roberts,61 a property owner brought an Origination Clause challenge against a statute, which had originated as a Senate bill, imposing property taxes in the District of Columbia to support local railroad projects. The Court rejected the challenge, saying that, as in Nebeker, "Whatever taxes are imposed are but means to the purposes provided by the act."62

The issue arose more recently in United States v. Munoz-Flores.63 As discussed above, in Munoz-Flores, a convicted criminal defendant challenged a "special assessment," which was deposited in a fund used to defray the cost of providing assistance and restitution to the victims of crimes. The defendant argued that the statute creating the special assessment was a revenue measure that, having originated in a Senate bill, had been enacted in violation of the Origination Clause.

The Supreme Court disagreed. The Court repeated Justice Story's statement that the Origination Clause only applies to "taxes in the strict sense of the word."64 Then, relying on Nebeker and Milliard, the Court considered whether the special assessment was such a tax, concluding that it was not. The Court based its conclusion on several factors. First, the act creating the assessment was intended "as a source of federal funds for programs that compensate and assist crime victims."65 Second, almost all of the money raised by the assessment was used for that purpose, and any excess was incidental; thus, "as in Nebeker and Milliard, the special assessment . . . was passed as part of a particular program to provide money for that program."66 Third, although the program did not benefit the class of people from whom the assessments were collected (presumably, convicted criminals), the Nebeker precedent establishes that "a bill creating a discrete governmental program and providing sources for its financial support is not a revenue bill simply because it creates revenue. . . . Thus, the beneficiaries of the bill were not relevant."67 Taking all of this together, the Court concluded that the special assessment was not a bill for raising revenue and therefore that its origination in the Senate did not violate the Origination Clause.68

The 1935 Senate Debate. In addition to the Nebeker, Milliard, and Munoz-Flores decisions, there have been dozens of examples in which Congress itself has considered whether a provision constitutes a revenue measure. In most cases, the examples entail fairly cursory discussions, with the House passing a blue-slip resolution after only a brief debate. There is a notable exception: A 1935 Senate debate that is the most extensive discussion, in either chamber, of whether a bill constitutes a revenue measure within the meaning of the Origination Clause.

The 1935 debate was triggered by a provision, enacted as part of the Revenue Act of 1934, that required the publication of information gleaned from the tax returns of high-income individuals. Before the provision was ever implemented, there was strong sentiment to repeal it, and the House quickly passed a provision to do so. When the bill came to the Senate floor, the author of the 1934 publication requirement, Sen. Robert LaFollette, R-Wis., proposed to amend the bill to add a provision imposing an additional surtax on upper-income taxpayers.69 The Chair of the Finance Committee, Sen. Pat Harrison, D-Miss., objected, raising a point of order that the LaFollette amendment violated the Origination Clause because it would add a revenue amendment to a House bill that was not a revenue bill. The question before the Senate, therefore, was whether the House bill repealing the tax code provision requiring the publication of tax return information was a revenue bill, such that the Senate could amend it with other revenue measures.

As the debate began, Sen. LaFollette explained why, in his view, the House bill was indeed a revenue bill. He argued that, as a practical matter, repealing the publication requirement would affect revenue because "the administrative features of the law are equally important with the rates imposed, so far as the net revenue to the Government and the amount which it collects under any revenue law are concerned."70

Harrison responded. The provisions of the House bill, he said, "deal solely with administrative purposes and features of the existing law; in no way, not by the wildest stretch of the imagination, can they be construed to affect the raising of revenue." He quoted Justice Story and described the Supreme Court decisions in Nebeker and Milliard.71

Several other senators joined the debate. Sen. Arthur Vandenberg, R-Ind., argued that the House bill clearly was a revenue measure; Sens. Alben Barkley, D-Ky., William Borah, R-Idaho, and others insisted that it was not.72 Sen. Borah, for example, said that there were two questions. The first was whether the bill "purport[s] to raise revenue"; the second was whether it "substantially affect[s] the question of revenue." Turning to the House bill, he said "I am unable to see how it can be said this is a bill to raise revenue, or how it in fact raises revenue . . . ."73

Lafollette responded, arguing that, in the case of an income tax, "we cannot confine our interpretation . . . solely to the rates which are imposed . . . the construction of a revenue measure is such that its administrative provisions are just as important in affecting and in raising revenue as are the rates which are imposed."74 Sen. Huey Long, D-La., then elaborated on LaFollette's point:

Shortly after Long expressed his view, Harrison asked for a ruling on the point of order and, as always is the case with constitutional questions, it was put directly to the full Senate (rather than to the presiding officer). The Senate sustained the point of order by voice vote, and the amendment fell.76 Accordingly, the Senate had ruled that it did not consider the House bill repealing the information reporting requirement to be a revenue measure within the meaning of the Origination Clause.

Specific Applications. The Nebeker, Milliard, and Munoz-Flores decisions and the 1935 Senate debate provide the most extensive analysis of the general principles for determining whether a bill is a revenue bill. Those sources have been supplemented and refined by decisions applying the general principles to specific cases; most by the House, but some by the Senate and lower courts. This section discusses those decisions, dividing them into six categories: revenue reductions, appropriations bills, user fees, the issuance of debt, trade provisions, and tax administration.

Revenue Reductions. Early on, the Senate took the position that a bill that reduced rather than increased revenue was not a "bill for raising revenue" and, therefore, was not subject to the Origination Clause. For example, during the 1833 debate over Sen. Henry Clay's compromise tariff bill, Clay argued that because his bill reduced tariffs rather than raised them, it "did not come within the reach of an equitable objection."77

The issue was largely resolved during the House-Senate Origination Clause dispute of 1871-72, discussed extensively below. There, first the House and then the Senate took the position that a tariff or tax bill that reduced revenue was covered by the Origination Clause. By the time that dispute was over, it was pretty well settled that if the other requirements are met, the Origination Clause applies to a bill that significantly affects revenue--whether revenue rises or falls.

Confirming this, in 1905 the Senate itself applied the Origination Clause to amendments that reduced revenue. The proponent of doing so rationalized the Senate's action based on his interpretation of the Origination Clause:

The issue recurred in a 1985 appeals court decision in which the plaintiff brought an Origination Clause challenge against the 1982 Tax Equity and Fiscal Responsibility Act.79 The House had passed a minor bill lowering a single tariff, to which the Senate had added a several-hundred page amendment significantly raising taxes. In response to the threshold point that an Origination Clause challenge was out of place because the overall bill had clearly originated as a House revenue bill, the plaintiff argued that the Origination Clause applied only to bills that increased revenue. Therefore, the plaintiff continued, the clause did not apply to the original House tariff bill, which reduced revenue, but did apply to the Senate amendment, which raised revenue.

The court disagreed, concluding that "the term 'Bills for raising Revenue' does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes." The court then explained that the interpretation was consistent with congressional practice; that it minimized problems of interpretation (that is, whether a particular provision will increase taxes overall) and that it preserved the Senate's broad power to amend a House revenue bill. The court concluded, "the framers of the Constitution intended that all legislation relating to taxes . . . must be initiated in the House . . . [but that] once a revenue bill has been initiated in the House, the Senate is fully empowered to propose amendments, even if their effect will be to transform a proposal lowering taxes into one raising taxes."80

Appropriations Bills. Although the House has historically taken the position that the Origination Clause requires all general appropriations bills to originate in the House,81 it also has generally (and perhaps paradoxically) taken the position that the Senate cannot add a revenue amendment to a House appropriations bill, a view that seems to depend on the argument that an appropriations bill is not a revenue bill. Overall, the application of the Origination Clause to appropriations bills remains a grey area, with a recent precedent that runs contrary to the general rule.

Starting with the general rule, in 1905 the Senate added a tariff provision to a House appropriations bill. The House objected, invoking the Origination Clause.82 When the bill was returned to the Senate, several senators agreed with the House position. Sen. John Spooner, R-Wis., stated, "[t]his is an agricultural appropriation bill. There was not an item in it which dealt with the revenue, and I think it was entirely without the right of the Senate to include in it the amendment to which the House objects."83 Further, he argued, "If the Senate might make this amendment it is difficult to limit the power of the Senate in incorporating amendments which affect the revenue."84 Therefore, Spooner concluded, "I think the House . . . in a very respectful and dignified way, has called our attention to a real invasion of its constitutional privilege and that the Senate is proceeding to do in a dignified and proper way what it ought to do in eliminating this amendment from the bill."85 Spooner moved that the original Senate bill be reconsidered, the revenue amendment deleted, and the bill passed without the amendment, and the Senate agreed.86

Since then, the House has repeatedly taken the implicit position that an appropriations bill is not a revenue measure within the meaning of the Origination Clause. For example, in 1994 and 2001, the House blue-slipped what it considered to be Senate revenue amendments to House appropriations bills.87

There have, however, been exceptions to the general rule. The most significant occurred in 2000. A conference report on an appropriations bill included a provision, which had not been part of either the House or Senate bills, repealing an excise tax on certain communications services. The Chair of the Ways and Means Committee, Rep. William Archer, R-Texas, offered a blue-slip resolution. The resolution was tabled (by a one-vote margin) and the conference report passed (but was vetoed on grounds unrelated to the Origination Clause question).88 Thus, the House rejected the argument that the Origination Clause prevented a revenue amendment from being added to an appropriations bill.

User Fees. The most common dispute over whether a bill constitutes a revenue measure probably is the dispute about the distinction between, on one hand, taxes, and, on the other hand, other provisions that generate revenue -- here referred to as "user fees."

The Supreme Court has provided a framework for addressing these issues, most recently in the Munoz-Flores decision discussed above in which the Court concluded that the special assessment levied on convicted criminals was not a revenue measure within the meaning of the Origination Clause.

Disputes about whether a measure is a revenue measure or a user fee also have occurred in the House and Senate. The most extensive debate occurred in 1990, when Congress was considering revisions to the Clean Air Act. The Senate Environment and Public Works Committee, which had jurisdiction over amendments to the Clean Air Act, reported a bill that contained two significant clean air fee provisions, one requiring states to promulgate statewide clean air plans that contained emissions fees, the other authorizing the EPA administrator to impose various types of fees, including pollution fees on commercial products (with the proceeds being used to fund EPA operations). When the bill was considered on the Senate floor as a Senate-originated bill, Finance Committee Chair Sen. Lloyd Bentsen, D-Texas, offered an amendment to delete or modify these provisions. Sen. Bentsen argued that they were revenue measures and that "we cannot include revenue raising measures in this bill without violating the House's constitutional prerogatives."89 The manager of the bill, Sen. Baucus, asked for Bentsen's assurance that, if the provisions were deleted, similar provisions would be considered as part of an upcoming tax bill. With that assurance, the provisions were deleted.90

In the House, the result was quite different. When the House Energy and Commerce Committee sent an amended version of the Senate bill to the House floor containing a similar set of fee provisions, the Ways and Means Committee Chair, Rep. Daniel Rostenkowski, D-Ill., offered an amendment similar to Bentsen's. Rostenkowski argued that the Energy and Commerce Committee's version of the bill contained "certain fees which are, in reality, taxes," to such an extent that "[n]ever in my 31 years of service in this body have I seen a bill that so blatantly disregards the prerogatives of the House of Representatives." However, the manager of the bill, Rep. John Dingell, D-Mich., opposed the Rostenkowski amendment, largely on the grounds that the fees were integral to the bill. The Rostenkowski amendment was defeated and thus, ironically, the House provided less deference to Origination Clause considerations than the Senate.

In the aftermath of the Clean Air Act debate, at the beginning of the next Congress, the Speaker of the House made a statement designed to provide guidance on the distinction between taxes and user fees.91 Specifically, the Speaker explained that "Standing Committees of the House . . . have jurisdiction to consider user, regulatory, and other fees, charges, and assessments levied on a class directly availing itself of, or directly subject to, a governmental service, program, or activity, but not on the general public."92 However, the Speaker continued, in order to be distinct from a tax, "[t]he fee must be paid by a class benefiting from the service, program, or activity, or being regulated by the agency." Further, "[t]here must be a reasonable connection between the payors and the agency or function receiving the fee." Finally, the fee must "be utilized solely to support, subject to annual appropriations, the service, program, or activity (including agency functions associated therewith) for which such fees, charges, and assessments are established and collected and not to finance the costs of Government generally." The House has renewed this policy statement at the beginning of every subsequent Congress.93

Since that statement was first made in 1991, there have been several further disputes about the distinction between revenue measures and user fees. In 1994, the Senate amended a House appropriations bill with a provision authorizing the imposition of fees by the Food and Drug Administration, with the fees to be used "to cover the costs of regulation of products under the jurisdiction of the Food and Drug Administration, to remain available until expended."94 When the Senate bill came to the House, the Ways and Means Committee Chair, Rep. Sam Gibbons, D-Fla., proposed a blue-slip resolution, arguing that:

Speaking in support of the resolution, Rep. William M. Thomas, R-Calif., put it this way: "If you are going to collect more in revenue than you are going to use for a specific purpose, you can call it whatever you want, but it is raising revenue under the Constitution, and the Constitution says that is the right and the privilege of the House of Representatives to originate."96 The House approved the resolution,97 and the Senate dropped the provision.98

In 1998 the Senate sent the House an original bill containing a provision replacing an existing fee on electricity generated by nuclear energy with a new and lower fee, and Rep. John Ensign, R-Nev., proposed to blue-slip the bill. He argued that, because the existing fee raised significantly more than was necessary to cover the relevant program it was "being used to raise revenue to finance the Federal Government generally" and hence constituted a tax. Accordingly, "the Senate bill, by repealing what is in effect a tax," and replacing it with what was in effect a fee, "constitutes a revenue bill" within the meaning of the Origination Clause.99 The House approved the blue-slip resolution, sending the bill back to the Senate,100 where it died.

However, the House has occasionally passed Senate bills containing user fees, thereby implicitly agreeing that those fees do not constitute revenue measures within the meaning of the Origination Clause. Two recent examples are the 2001 aviation security bill, which originated as a Senate bill and contained a provision establishing a small per-ticket fee to pay for airline security,101 and the Federal Prisoner Health Care Copayment Act of 2000, which imposed a fee on federal prisoners and used the proceeds to provide restitution in the prisoners' own case and, if restitution was not applicable, to support the Crime Victims Fund and its operations.102

A 2002 bill posed some particularly difficult questions. Congress was considering a bill establishing a new Public Company Accounting Oversight Board (PCAOB).103 The PCAOB was not a government agency but instead a nonprofit corporation; its mission was to "oversee the audit of public companies that are subject to the securities laws, and related matters, in order to protect the interests of investors and further the public interest in the preparation of informative, accurate, and independent audit reports for companies the securities of which are sold to, and held by and for, public investors." More specifically, the PCAOB was given several duties, such as to register public accounting firms that prepare audit reports, establish new auditing standards, conduct investigations, and enforce compliance with relevant standards. The Senate amended the House bill to direct the PCAOB to establish an "Annual Accounting Fee" to be imposed on issuers of securities. The fee was to be set at the level necessary to "establish and maintain the Board" and to be allocated among securities issuers according to rules developed by the PCAOB, and was to be based generally on the issuers' relative issuance of securities in the preceding year. The fee was estimated to generate $24 million a year. When the Senate amendments were returned to the House, the chair of the Ways and Means Committee argued that the bill should be blue-slipped,104 but the issue was deferred to conference, where the Senate provision was largely retained.105

Another dispute, as yet unresolved, relates to Customs Service user fees, which are imposed on the arrival of passengers and cargo and used to fund the operation of the Custom Service's commercial operations.106 In 2001 the Senate passed a bill containing a provision that extended the fees, thereby implicitly taking the position that it did consider those fees to be revenue measures within the meaning of the Origination Clause (although the issue was not raised expressly on the Senate floor and the House did not necessarily agree with the Senate position, given that the Senate bill, which was passed late in the congressional session, was held at the House desk).107 In 2004, however, after the Senate passed a similar extension as part of an appropriations bill, the House Ways and Means Committee chair threatened to blue-slip the bill, and the provisions were deleted in conference.108

The Issuance of Debt. Another difficult issue is whether the Origination Clause applies to a bill authorizing the issuance of debt. As a starting point, it has been customary for bills increasing the federal debt limit to originate in the House. Through 2002, 47 consecutive debt limit extensions had originated in the House. But the full application of the Origination Clause to bills that authorize the issuance of debt is more complicated.

Precedents cut both ways. On one hand, several support the application of the Origination Clause. In 1837 the House laid aside a Senate bill authorizing the issuance of Treasury notes and passed a House bill in its stead.109 In 1936 the House blue-slipped a Senate bill authorizing the Treasury secretary to issue silver certificates.110 And in 1946 the Ways and Means Committee declined to reject a Senate bill decreasing the debt limit, but reported out an original House bill on the same subject, which passed the House and Senate and became law.111

More recently, in 1989 the Senate amended a clean House debt limit bill with a provision repealing certain tax provisions of the 1986 Tax Reform Act.112 By doing so, it could be argued, the Senate implicitly took the position that a House debt limit bill was a revenue measure that could be amended with revenue amendments in the Senate. However, no constitutional point of order was raised against the Senate amendment, so there was no express Senate decision on the Origination Clause issue. And in 1996, when the ranking Democratic member of the Finance Committee, Sen. Daniel Patrick Moynihan, D-N.Y., offered an amendment to a Senate appropriations bill to increase the debt limit, the Finance Committee Chair, Sen. William Roth, R-Del., argued that the amendment was unconstitutional and moved to table the amendment, and the motion to table was narrowly agreed to (by a vote of 46-45).113

However, several precedents cut the other way, supporting the Senate's power to originate a bill authorizing the issuance of debt. In 1874, when the Senate passed a bill establishing the debt limit, the House considered and rejected a motion to return the bill to the Senate.114 In 1946, when the Senate passed a bill authorizing the Treasury secretary to issue bonds to help finance the post-War Breton Woods agreement, it triggered an extensive House debate. There was an attempt to pass a resolution to return the bill to the Senate on the grounds that, as the resolution's sponsor said, "the purposes for which bonds may be issued, and the authority for issuing them, are strictly revenue matters" that must originate in the House.115 However, several other House members disagreed.116 The resolution was not voted on but instead was referred to the Judiciary Committee (where it died), and the Senate bill eventually was enacted into law.117

The issue arose again in 2002. President George W. Bush had urged Congress to increase the debt limit, but the House had failed to act. The Senate stepped in and passed an increase. Eventually, the House agreed to pass the Senate bill.118 When it did so, Ways and Means Committee Chair Thomas expressed misgivings. In a floor statement, he described a House-passed supplemental appropriations bill that, he argued, would have addressed the problem by calling for the conference report to take appropriate action to protect the full faith and credit of the United States. Because the Senate had refused to adopt a provision along those lines, he continued, the House was in "an unprecedented situation." After describing precedents supporting the application of the Origination Clause, Thomas concluded:

As this article went to press, the issue may have been settled. On November 18, 2004, the Senate passed an original Senate bill to increase the debt limit, and the House passed the Senate bill the next day without any discussion of the Origination Clause issue.120

Trade Bills. For more than 100 years after the Constitutional Convention, the principal federal revenue laws were tariff laws, and it is well established that the Origination Clause applies to bills to establish or modify tariffs in the same way that it applies to bills to establish or modify taxes. Thus, over the years, the Origination Clause has been applied repeatedly to bills that make direct changes to tariff schedules.121

Also, the Origination Clause has been applied more broadly to trade bills, in two distinct ways. First, it has been applied to bills that restrict imports by means other than tariffs, such as by prohibitions or quotas, on the grounds that those bills affect tariff revenue indirectly, even if they do not change tariff schedules. Thus, in 1931, the Senate tabled a motion to take up a Senate bill restricting imports of certain petroleum products;122 in 1988 the House blue-slipped a Senate bill imposing a system of global quotas on textile imports;123 and as recently as 1994, 1998, 1999, and 2001, the House blue-slipped Senate bills prohibiting imports of, respectively, products containing excessive amounts of lead,124 products labeled as containing banned tiger or rhinoceros parts,125 certain automatic loading mechanisms for firearms,126 and "conflict diamonds."127

Second, the Origination Clause has been applied to bills that change the trade law rules. For example, in 1996 the House rejected on Origination Clause grounds a Senate bill that did not affect tariffs directly, or restrict imports directly, but that amended the Trade Act of 1974 to modify the definition of an affected "domestic industry" for purposes of determining whether a domestic industry had suffered an injury justifying import relief.128

It is not clear how far Congress (and, presumably, courts) can and will go in applying the Origination Clause to bills that modify trade law rules without directly affecting tariffs. It is tempting to say that the clause applies to any bill that amends those rules in any way. However, it is possible that, at some level, the connection between a particular change in the trade law rules and a practical effect on tariff revenue will be so attenuated that an Origination Clause challenge will fail.

Indirect Effects on Taxes. Occasionally, a question arises whether a provision that affects the administration and operation of the tax laws constitutes a revenue measure within the meaning of the Origination Clause, even if it does not directly amend the tax code.

The House has repeatedly applied the Origination Clause to provisions that do not amend the tax code, but that instead change the tax status of income or entities, such as bills that exempt income from taxation,129 create new tax benefits,130 modify the rules for tax-exempt entities,131 or otherwise dictate the tax treatment of specific items.132

A tougher question relates to tax administration.133 There is the important precedent of the 1935 Senate debate, described above, in which the Senate took the position that a House bill deleting administrative provisions of the tax code was not a revenue bill within the meaning of the Origination Clause, because the provision had neither the purpose nor practical impact of affecting revenue. On the other hand, the House recently has taken the position that provisions that have a significant effect on the administration of the tax system are revenue measures within the meaning of the Origination Clause. Thus, in 1994, when the Senate amended a House appropriations bill to prohibit the Treasury Department from using appropriations to enforce tax code requirements regarding motorboat fuel, the House blue-slipped the bill.134 And in 1991, when the Senate sent the House a bill that amended the tax code on limitations for certain firearms violations, the House blue-slipped the bill, on the grounds that the changes "would have an immediate impact on revenues anticipated by U.S. Customs and the Internal Revenue Service."135

On a related point, there is precedent that a provision that is purely ministerial may originate in the Senate, even if it amends the tax code: In 2001, the Senate passed a bill amending the tax code to name the educational savings account provisions after the late Sen. Coverdell, and the Senate bill was passed by the House and enacted into law.136

E. What Is the Scope of Senate Amendments?

1. Background and early practice. When the delegates to the Constitution Convention proposed to modify the Origination Clause to allow the Senate to amend House bills, James Madison warned that "[t]he words amend or alter form [a] . . . [s]ource of doubt and altercation."137 Madison's warning proved true. The Constitution gives each chamber of Congress the right "to determine the Rules of its Proceedings,"138 and, in doing so, the House and Senate have developed very different approaches to amendments. Generally speaking, in the House amendments must be germane to the underlying bill.139 In the Senate, in contrast, amendments need not be germane or even relevant to the subject of the bill being amended (with some important exceptions, such as when cloture has been invoked or when the Senate is considering a budget reconciliation bill);140 as the Senate has applied this approach to House revenue bills, the scope of its amendment power has become a matter of intermittent but sharp disagreement between the House and Senate and within the two chambers themselves.

The issue arose, at least implicitly, during the first Congress, which convened shortly after the Constitution was ratified. The second bill Congress considered was a bill to establish a national tariff system to put the government on a sounder fiscal footing. When the House bill came to the Senate, it was taken up directly on the floor. The Senate made 33 amendments, most reducing tariffs.141 The House initially rejected the Senate amendments, but eventually agreed to a conference. The conference report followed the general framework of the House bill, but also included several significant Senate amendments, including amendments reducing the tariffs on rum, beer, and coal.142

Despite the implicit acceptance of the Senate's power to amend a House revenue bill, soon thereafter the House took a much narrower view of the Senate's power. In 1807 the House passed a bill to repeal the duty on salt. The Senate responded by amending the bill so that it did not repeal the duty but instead only reduced it -- similar to what it had done with other products in 1789. When the Senate amendment was returned to the House, the chair of the newly established Ways and Means Committee, John Randolph, R-Va., objected. He argued that the Senate's power to amend was limited to accepting the entire bill, rejecting the entire bill, or making minor changes to the "details of the bill." The Senate did not, he argued, "possess the power of varying the objects or altering the quantum," because, if it did, the House's power to originate revenue measures "is illusory."143 Several other congressmen disagreed with Randolph's view, but his motion to insist on the House position was sustained.144

2. The Post-Civil War dispute. After the Civil War, the Senate asserted a broad power to amend revenue bills, and that led to a sharp confrontation between the two chambers. Congress had enacted an income tax to finance the cost of the war, and the tax was scheduled to expire in 1870. As expiration drew near, a majority of House members wanted to reduce the tax but extend it, while a majority of Senators wanted to let it expire.145 In 1870, the two chambers agreed to a temporary compromise that reduced the tax but extended it for two more years.146

The Senate opponents of the income tax were not satisfied. In 1871 the Senate passed an original Senate bill to repeal the tax immediately, on the theory that a bill to repeal a tax was not a bill for "raising revenue" and therefore need not originate in the House. The House disagreed and passed a resolution informing the Senate that the bill violated the constitutional prerogatives of the House and that the House therefore refused to consider the bill.147

No further legislative action was taken on the bill, but the Senate did not relent. A few weeks after the House passed its resolution refusing to consider the Senate bill, the Senate passed a resolution of its own instructing the Finance Committee to use the period of the coming congressional recess to "examine the existing system of taxation with a view to propose such amendments to the bills of the House of Representatives repealing certain taxes now pending in the Senate as will simplify, revise, and reduce both the internal taxes and the duties on imported goods."148 The House responded by passing yet another resolution, directing the House Rules Committee to "report to the House how far the existing practice of amending, in the Senate, bills for raising revenue, by the addition of enactments not germane to the original bill, is in conformity with the Constitution, and whether any further rules or proceedings are needed to preserve the privileges of the House in the matter."149

When Congress reconvened in 1872, the Senate pressed ahead. The House had passed a bill repealing the duties on tea and coffee, and the bill had been referred to the Finance Committee. When the Finance Committee took up the House bill, it replaced the 32 words repealing the duties on tea and coffee with a 20-page amendment repealing the entire income tax and revising the tariff system. The full Senate passed the bill as amended.

The House responded sharply. When the Senate bill was taken up in the House, several members took to the floor where, invoking the Magna Carta and the framers of the Constitution, they argued that the Senate's amendment was unconstitutional. For example, Rep. Henry Dawes, R-Mass., said that the Senate's power to amend was limited. Otherwise, he argued, the power granted to the House by the Origination Clause "is entirely nugatory," because the Senate, under the guise of an amendment, "has entire jurisdiction of the subject, and can substitute any bill touching the revenue in any form that they please."150 Accordingly, Dawes continued:

Others agreed. Although they described somewhat different standards for determining whether Senate amendments were within their proper scope, virtually all seemed to agree with the view expressed by Rep. Samuel Cox, R-N.Y., who said, "[t]his great thick bill of the Senate is not an amendment in any sense in which it can be construed in accordance with either precedent or authority."152 Accordingly, the House once again passed a resolution informing the Senate that the bill violated the constitutional prerogatives of the House and that the House refused to consider it.153

When the House resolution was received in the Senate, it was referred to the Committee on Privileges and Elections, which was asked to report on the matter. The committee soon did so, filing a report with a detailed discussion of the Senate's power to amend revenue bills.154

The report began by turning the House's previous argument on its head. During the previous session, the House had argued that the original Senate bill repealing the income tax was a bill for "raising revenue" and, therefore, was subject to the Origination Clause. Now, for the sake of argument, the report conceded the point and took it one step further. If the previous Senate bill repealing the income tax was a bill for raising revenue, then, by the same logic, the present House bill repealing the tariffs on tea and coffee also was a bill for raising revenue. Therefore, the Senate was adding a revenue amendment to a House revenue bill, and the only remaining question was the scope of the Senate's power to amend.155

The report then turned to that question. It explained the British Parliamentary practice that preceded the Constitution, which prohibited the House of Lords from making any substantive amendments to revenue bills originated by the House of Commons. Then the report argued that the framers, by establishing a standard different from the Parliamentary standard, had intentionally expanded the scope of the Senate's power:

The report went on to consider whether there was some limit to the Senate's general power to amend House bills and concluded that there was not. Summing up its view of the operation of the Origination Clause, the report stated:
After the report was submitted, no further action was taken by either the Senate or House. Thus, the Senate's effort to accelerate repeal of the income tax failed and the income tax remained in place until the end of 1872, when it expired as previously scheduled. The conflict over the two chambers' different interpretations of the Origination Clause remained unresolved.

However, over the following decades, a broad Senate power to amend revenue bills gradually became established. For example, in 1879 the House passed a bill modifying various laws regarding internal taxation, and the Finance Committee reported a version of the bill that made further amendments along the same lines. When the bill came to the Senate floor, Sen. Mathews, R-Ohio, offered an amendment imposing new duties on tea and coffee. Sen. Beck, D-Ky., made a point of order, arguing that "the amendment seeks to originate a revenue bill bearing upon external taxation . . . and as it is proposed as an amendment to an internal-revenue bill it is not germane to the bill."158 Mathews disagreed. He said:

A short time later, Mathews turned to those rules. Responding to the argument that amendments to a House revenue bill must be germane, he asked:
The point of order was put to a vote and was rejected by a vote of 22 to 16.161 Thus, the Senate expressly rejected the argument that a Senate amendment to a House revenue bill must be germane to the House bill.

The House, for its part, gradually acquiesced. In 1883 the House questioned the constitutionality of a Senate amendment to a revenue bill, but allowed the question to be settled by the conferees.162 In 1888 a House member proposed a resolution returning a Senate amendment to a House revenue bill to the Senate but the House rejected the resolution.163 In 1909, when the Senate amended a House tariff bill with a provision establishing a new corporate income tax, no member of the House raised an Origination Clause challenge to the amendment,164 and the corporate income tax was enacted.

3. The Supreme Court decisions. In 1896 and 1906, the Supreme Court had considered but rejected Origination Clause challenges, concluding that, although the statutes in question had originated as Senate bills, they did not constitute "revenue bills" within the meaning of the Origination Clause (see discussion above). A short time later, the Court was asked to consider challenges to provisions that had originated not as Senate bills but instead as Senate amendments to House revenue bills and, accordingly, to consider the permissible scope of Senate amendments.

The first case was Flint v. Stone Tracy,165 in which an Origination Clause challenge was brought against the new corporate income tax on the grounds that, because the tax had been added as a Senate amendment to a House bill that contained only tariff provisions and an inheritance tax, the corporate tax had unconstitutionally originated in the Senate. The Supreme Court rejected the argument, reasoning that "[t]he bill having properly originated in the House, we perceive no reason . . . why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject matter of the bill and not beyond the power of the Senate to propose."166 Although the Supreme Court had thus suggested the existence of some kind of an undefined germaneness requirement, it had upheld a Senate amendment that was vastly different from the provisions of the underlying House revenue bill.

The Court reached a similar result in Rainey v. United States,167 in which an Origination Clause challenge was brought against an excise tax provision that had been added as a Senate amendment to the same House revenue bill. The Supreme Court rejected the challenge, saying that the provision "was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient."168

4. The 1968 and 1982 Debates. The full expansion of the Senate's power to amend House revenue bills occurred much later, in 1968 and 1982, and each case arose from unusual political circumstances.

In 1968, as the Vietnam War escalated, President Johnson asked Congress to enact an emergency income surtax to help finance the war. Seeking quick action, congressional leaders decided that the proposal would be taken up first in the Senate, as a Senate amendment to a minor House bill extending a handful of excise taxes. After amending and passing the bill, the Senate called for a conference, and the House agreed; eventually, the conferees proposed a conference report that included the surtax.

When the conference report came before the House, Rep. Harold Gross, R-Iowa, offered a resolution to return it to the Senate as a violation of the Origination Clause.169 He argued that the conference report "represents one of the most direct attempts in the history of the Republic to cut away and destroy one of the most fundamental privileges and rights of this House -- the right, the responsibility, and the duty, under the Constitution, to originate revenue measures."

After citing some early precedents, Gross tried to frame the question. "I do not claim, of course, that the Senate has no power whatsoever to amend a revenue bill of the House. But I do say it cannot, under the guise of an amendment, propose new revenue legislation."170 He then cited further precedents that showed, he argued, that the "artfulness of the Senate" in developing amendments designed to circumvent the Origination Clause, had been persistently thwarted by the "traditional insistence by this House on the Rule of germaneness." Turning to that rule of germaneness, he argued that "major Senate amendments to this bill have nothing whatever to do with the original purpose of [the House bill], which was a simple extension of certain excise taxes."171

Rep. Wilbur Mills, D-Ark., chair of the Ways and Means Committee, responded. He began by citing the two Supreme Court decisions that had upheld the Senate's power to amend House revenue bills. "If this bill . . . had been a measure originating in the Senate and had borne a Senate number," Mills argued, "there would have been no question about it having contravened the . . . Constitution." But because the surtax had been added as an amendment to a House revenue bill, "I think it is completely without foundation in fact . . . that the bill represents a contravention by the Senate of the prerogatives of the House."172 Mills also urged colleagues to support the conference report because it was "one of the most important issues that we have had before us in a number of years."173

One of the senior House Republicans, Rep. Gerald Ford, R-Mich., agreed with Mills. Although he said he was "dedicated to the prerogatives of the House," he believed that those prerogatives were outweighed by the importance of enacting the surtax. Looking at the whole picture, he said, "I firmly believe the scales tip and tip sharply in favor of the conference report."174

Several other members also spoke, mostly in favor of the resolution to blue-slip the bill.175 Mills moved to table the resolution and the motion to table was agreed to by a vote of 257 to 162.176

A similar situation arose in 1982. There was substantial sentiment that, in light of projected federal budget deficits, a tax increase was necessary. However, the Democratic chair of the Ways and Means Committee, Rep. Rostenkowski, reportedly still smarting after having been out-maneuvered during the previous year's tax cut debate, refused to initiate a tax increase. Instead, he put that burden on the Republican-controlled Senate.177 Eventually, the Senate amended a minor House bill reducing taxes with a several-hundred-page amendment increasing taxes by about $100 billion.

When the Senate amendments were returned to the House, Rep. John Rousselot, R-Calif., offered a blue slip resolution.178 Rostenkowski successfully moved to table the resolution and then sought to call for a conference and appoint conferees to negotiate a final version of the bill.179 Anticipating a further Origination Clause objection, Rostenkowski explained:

Several members objected strongly that Rostenkowski's proposal violated the Origination Clause.181 However, after the senior Republican member of the Ways and Means Committee, Rep. Barber Conable, R-N.Y., supported Rostenkowski,182 the motion to go to conference was agreed to,183 and the resulting conference report was enacted as the Tax Equity and Fiscal Responsibility Act of 1982.184

The 1968 and 1982 debates completed the gradual expansion of the Senate's power to amend. The delegates to the Constitutional Convention had started with the strict British Parliamentary model, which denied the Senate any power to amend at all, but eventually allowed the Senate to "propose or concur with amendments, as on other Bills." Initially, in 1807, the House had interpreted that to deny the Senate the power to make substantive amendments. Later, the House agreed that the Senate had a broader power to amend but insisted that Senate amendments must be germane. Now, without formally conceding the point (indeed, in 1982, Rostenkowski expressly said that "today's action does not create a precedent for judging when in the future the House should, and will, insist on the maximum protection afforded by the origination clause"185), the House had implicitly agreed that the Senate's power to amend a revenue bill with other revenue provisions was essentially unlimited.186

Concluding Observations

After thinking about the Origination Clause over several years, from both a historical and a practical perspective, I would like to offer several concluding observations.

A starting point is how important the framers considered the Origination Clause. It was not some minor technical provision adopted with little debate. To the contrary, it was a critical element of the legislative balance between the House and Senate; it was debated over the course of virtually the entire Constitutional Convention, voted on repeatedly, and subject to several compromise revisions.

In light of how important the framers considered the Origination Clause, it is surprising how uncertain they left the final version. Under the compromise, two critical terms were undefined. One was the universe of "bills for raising revenue" to which the clause applied. The other was the scope of the Senate's power "to alter or amend, as on other bills," the impact of which depended entirely on how the Senate subsequently defined the general power to amend.

As those and related decisions unfolded, several issues have been resolved, which establish some bedrock points on which we can rely.

First, the Origination Clause is enforceable not only by Congress but also by the courts.

Second, broad agreement exists on several basic limits. The Senate may not pass and send to the House a revenue bill or add a revenue amendment to a House bill that is not a revenue bill. Conversely, the House may not add a revenue amendment to a Senate bill.

Third, the Origination Clause does not inhibit the Senate's own internal proceedings. There was some uncertainty in the early years of Congress, and the classical model is for the Senate to do its primary work on revenue legislation in the form of amendments to a House revenue bill. However, the Senate may, if it chooses, initiate and work on revenue bills, both in the Finance Committee and on the Senate floor, as long as it does not send them to the House until it has received and amended a House revenue bill.

Fourth, the Senate has virtually unlimited power to amend House revenue bills, although the House may not have fully conceded the point and could conceivably revive a version of its 1872 position that Senate amendments must relate to the House bill.

In contrast, several other issues remain unresolved. The most important is the definition of a bill for raising revenue. Clearly, the Origination Clause applies to all revenue bills, including bills that reduce as well as increase revenue. But less clear is what constitutes a revenue bill, with particular uncertainty for appropriations bills and bills related to debt limit, nontariff aspects of trade policy, and the administration of tax laws; and to bills implicating the distinction between taxes and user fees.

In light of all this, how important does the Origination Clause remain? Has it lived up to the framers' expectation? Or has it become something of a constitutional anachronism, serving primarily as a minor speed bump along the legislative highway?

On one hand, the Origination Clause has turned out to give less primacy to the House than its strongest advocates among the framers must have envisioned. The Senate's broad power to amend, and its ability to initiate and develop revenue legislation short of sending it to the House, has allowed the Senate to frequently play a role on revenue legislation that differs little from the role that it plays on other legislation, when the role of the Senate is fully equal to that of the House.

On the other hand, the Origination Clause continues to have a significant effect on revenue legislation, in at least three ways.

First, it establishes a norm -- the classical model -- in which the Congress takes a careful, predictable, sequential approach to revenue legislation: the House Ways and Means Committee holds hearings and reports a bill to the full House; the Senate refers the bill to the Finance Committee, which holds further hearings, amends the House bill, and reports the amended bill to the full Senate for further debate and amendment; and finally there is a conference to resolve the differences. Adherence to that classical model is not mandatory and, indeed, may be more the exception than the rule. But the model persists and sometimes is employed on tax bills of particular importance, such as the 1986 Tax Reform Act.

Second, even when the classical model is not followed, the Origination Clause enhances the power of the House relative to the Senate. The House has its hand on the spigot--unless the House begins the process by passing a revenue bill, the Senate cannot respond. Further, as Prof. Adrian Vermeule recently wrote, looking at the Origination Clause from the perspective of political game theory, "the House might enjoy an intangible but real form of first-mover advantage from its ability to set the policy agenda in ways that structure both legislative and political debates."187

Third, within the House and Senate themselves, the Origination Clause strengthens the hand of the tax committees. That is especially true in the Senate, where the committee with jurisdiction usually has relatively little control over floor amendments. A House revenue billordinarily is referred to the Senate Finance Committee, which then decides whether and when to report the bill to the full Senate. Because the Origination Clause prevents revenue amendments from being offered as amendments to nonrevenue bills (whether original Senate bills or House bills that are not revenue bills), the committee with jurisdiction -- the Finance Committee -- has more control over the pace and scope of the consideration of revenue legislation by the full Senate than is the case with other legislation.

Pulling all of this together, the Origination Clause has indeed been, as James Madison predicted in 1789, "a source of frequent and obstinate altercations." But it also remains an important part of our constitutional structure. Despite its development in ways the framers could not have envisioned, and despite the uncertainties of its application at the margins, the Origination Clause has established a model for the consideration of revenue legislation, enhanced the power of the House relative to the Senate, and strengthened the hand of the congressional tax committees.


1 Michael Evans, "Foundations of the Tax Legislation Process: The Confederation, Constitutional Convention, and First Revenue Law," Tax Notes, Jan. 21, 1991, p. 283.

2 2 Henry Hallam, The Constitutional History of England: From the Accession of Henry VII to the Death of George II 193 (1978).

3 1 William Blackstone, Commentaries 163-64.

4 S. Rep. No. 146, at 2 (1872) (quoting the Commons' resolution) (emphasis omitted). See also Joseph Story, Commentaries on the Constitution of the United States 639-43 (5th ed. 1994).

5 James Madison, Journal of the Federal Convention 517-18 (1987 ed.) (1st ed. 1840) (hereinafter Madison's Notes) (remarks of John Dickenson). See also J. Michael Medina, "The Origination Clause in the American Constitution: A Comparative Survey," 23 Tulsa L.J. 165, 168 note 13 (1987) (citing the constitutions of Maryland, New Hampshire, New Jersey, South Carolina, and Virginia).

6 The Federalist No. 15 (Alexander Hamilton). See generally, Evans, supra note 1, at 284-86.

7 When, early in the Convention, the Committee on Detail enumerated specific legislative powers, the power "to lay and collect taxes, duties, imposts and excises" was the first listed, and was adopted without significant objection. 1 Debates in the Several State Conventions on the Adoption of the Federal Constitution 144 (Jonathan Elliot ed., 1888) (hereinafter Elliot's Debates).

8 U.S. Const. Art. I, section 9, cl. 4 ("[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken").

9 Madison's Notes, supra note 5, at 113.

10 Id. at 304.

11 Id. at 306.

12 Id. at 114.

13 Id. at 413.

14 Id. at 113.

15 Id. at 113.

16 Id. at 238.

17 Elliot's Debates, supra note 7, at 194.

18 Madison's Notes, supra note 5, at 238.

19 Elliot's Debates, supra note 7, at 241.

20 Id. at 285.

21 Madison's Notes, supra note 5, at 436-37. This formulation was proposed by Edmund Randolph, the original author of the Virginia Plan. In response, James Madison dissected the amendment. Although designed ostensibly to clarify ambiguous elements in the original version, Madison argued that, by allowing only certain kinds of amendments, the modifications created entirely new ambiguities. How, he asked, "could it be determined which was the primary or predominant" purpose of a provision, or "whether it was necessary that revenue should be the [sole] object, in exclusion even of other incidental effects?" Moreover, Madison argued, "the words amend or alter form an equal source of doubt and altercation . . . [because] the] Senate may actually couch extraneous matter under that name." Id. at 446.

22 Elliot's Debates, supra note 7, at 241.

23 Madison's Notes, supra note 5, at 461.

24 Elliot's Debates, supra note 7, at 298, 300.

25 The Federalist No. 58 (James Madison). There was little further relevant debate during the ratification process. See 48 Cong Rec. 9047, 9048 (1912) (remarks of Sen. Williams) (inserting into the Congressional Record a memo supporting his view that the Origination Clause applies to appropriations bills; The memo says "[i]n the consideration of the adoption of the Constitution by the several States in their conventions, I find nothing in the discussions in Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania, or Maryland, which is significant," and also describes the brief debate about the Origination Clause in Virginia and North Carolina).

26 Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy, 220 U.S. 107 (1910); Milliard v. Roberts, 202 U.S. 429 (1906); Twin City Bank v. Nebeker, 167 U.S. 196 (1896).

27 495 U.S. 385 (1990).

28 Id. at 393. The Court also gave two other reasons for rejecting the political question argument. First, it rejected the argument that the courts should refrain from deciding constitutional questions that do not directly affect individual rights. Id. at 392. Second, it rejected the argument that there were insufficient judicially enforceable standards available for deciding an Origination Clause question. Id. at 395-96.

29 See also Hubbard v. Lowe, 226 F. 135 (S.D.N.Y. 1915) (invalidating, as a violation of the Origination Clause, a House revenue amendment to a Senate bill).

30 See, e.g., H.R. Res. 518, 103rd Cong. (1994).

31 See, e.g., 92 Cong. Rec. 6435 (1946) (passing a House bill to reduce the debt limit in lieu of a Senate bill to do the same).

32 147 Cong. Rec. S6582 (daily ed. June 21, 2001).

33 Id.

34 See, e.g., 114 Cong. Rec. 17971 (1968) (remarks of Rep. Mills); 79 Cong. Rec. 4584 (1935) (remarks of Sen. LaFollette).

35 See, e.g., 148 Cong. Rec. H4154 (daily ed. June 27, 2002) (remarks of Rep. Thomas) (House passage of a Senate debt limit bill "should not be considered a precedent" and "should not be considered a change in the historic relationship between the House and the Senate over the origination of debt-limit legislation; but rather is a one-time acknowledgment of the exigencies of the circumstances facing the House"); 128 Cong. Rec. 18376-77 (1982) (remarks of Rep. Rostenkowski) (urging members to reject a blue-slip resolution against an extensive Senate amendment to a House revenue measure, but arguing that "today's action . . . does not create a precedent for judging when in the future the House should, and will, insist on the maximum protection afforded by the origination clause").

36 Cong. Globe, 35th Cong., 2nd Sess. 1666 (1859).

37 H.R. Res. 240, 107th Cong. (2001) (returning to the Senate H.R. 2500).

38 66 Cong. Rec. 1025 (1925). See also 75 Cong. Rec. 7606 (1931) (tabling a Senate bill to regulate international trade in crude oil).

39 Hubbard v. Lowe, 226 F. 135 (S.D.N.Y. 1915).

40 Cong. Globe 3427 (1864). See also 84 Cong. Rec. 6331, 6339, 6348-50 (1939) (Senate sustaining a point of order against a Senate revenue amendment to a House bill that the Senate determined was not a revenue bill).

41 Cong. Globe 3427, 4787, 4824 (1864). But see 64 Cong. Rec. 4606-13 (debate regarding Senate revenue amendments to a House postal bill that was not a revenue bill; eventually, a conference was convened but was not able to resolve the differences).

42 S. Rep. No. 146 at 5 (1872).

43 7 Cong. Debates 172, 244, 245 (1831). See also 7 Cong. Debates 473, 479 (1831) (denying leave to introduce a Senate bill to abolish the duty on salt).

44 9 Cong. Debates 474 (1833).

45 Id. at 474, 479.

46 Id. at 787.

47 Id. at 787. See also id. at 786 (Sen. Grundy asks whether Sen. Clay has "examined the bill to ascertain if it was the same as the bill which had been before the Senate," and Sen. Clay answers that he has). Later, during the House-Senate controversy that arose in 1871-72, which is discussed below, Rep. Brooks of New York reported, as "a historical fact within my own knowledge[]," that "[a]fter a discussion in the Senate, which lasted to a very late hour in the night, Mr. Clay abandoned the ground he had first taken as untenable, and transferred his own bill to Mr. Letcher, his friend and Representative in the House from Kentucky, because the ground he had first taken in the Senate was not tenable." Cong. Globe, 42nd Cong., 2nd Sess. 2105 (1872).

48 But see 6 Cong. Rec. 124 (1844) (Senate Finance Committee report on a bill modifying tariff schedules, postponing consideration of the bill on the ground that is "a bill for raising revenue . . . and cannot, therefore, originate in the Senate").

49 Pub. L. No. 16, 38 Stat. 114 (1913).

50 Act of June 17, 1930, 46 Stat. 590.

51 Pub. L. No. 91-172, 83 Stat. 30 (1969).

52 Pub. L. No. 99-514, 100 Stat. 2085 (1986).

53 See, e.g., S. 1637 108th Cong. (2004) (FSC/ETI bill reported by the Senate Finance Committee, debated, amended, and passed by the full Senate, then held at the Senate desk for more than two months until a companion bill had been received from the House); S. 1979, 107th Cong. (energy tax incentives, reported by the Senate Finance Committee and then incorporated in a Senate amendment to a House revenue bill); S. 896, 107th Cong. (2001 tax cut, reported by Senate Finance Committee and then incorporated as a Senate amendment to a House revenue bill).

54 See H. Con. Res. 83, 107th Cong. (2001), sections 103, 104 (budget resolution requiring both the Ways and Means and Finance Committees to report revenue legislation by May 18, 2001).

55 See supra at notes 19-20.

56 1 Joseph Story, Commentaries on the Constitution 642-43 (1994 ed.).

57 167 U.S. 196 (1896).

58 Id. at 202.

59 Id.

60 Id. at 203.

61 202 U.S. 429 (1906).

62 Id. at 437.

63 495 U.S. 385 (1990).

64 Id. at 398.

65 Id.

66 Id. at 399.

67 Id. at 400-01.

68 Id. at 399-401.

69 79 Cong. Rec. 4583 (1935).

70 Id. at 4584.

71 Id.

72 Id. at 4587-90.

73 Id. at 4588.

74 Id. at 4589.

75 Id. at 4591.

76 Id. at 4613.

77 9 Cong. Deb. 477 (1833). See also id. at 478 (remarks of Sen. Webster, arguing that "as, by its title, the bill appeared to be merely a bill to modify the existing revenue laws, it could hardly be rejected as a bill for raising revenue . . . since there are many particulars in which all the existing revenue laws might be modified, without raising more or less revenue").

78 39 Cong. Rec. 2768 (1905) (remarks of Sen. Spooner). See also 83 Cong. Rec. 6339 (1939) (remarks of Sen. Connolly) (making a successful point of order against a Senate amendment that reduced revenue, arguing that "every Senator knows that this amendment affects revenue. It does not make any difference wither it raises revenue or lowers revenue, if the provision relates to the revenue it is a revenue matter, and, under the Constitution . . . must originate in the House . . . .").

79 Armstrong v. United States, 759 F.2d 1378 (9th Cir. 1985).

80 Id. at 1381-82 (emphasis in original).

81 The House argument is, in essence, that in adopting the Origination Clause, the framers were following the English practice, which required that all "money bills" originate in the House of Commons, and that the framers intended the Origination Clause to have similar scope, applying to both revenue and appropriations bills. The Senate response is, in essence, that in changing the relevant term from "money bills' to "revenue bills," the framers intended to give it a more narrow scope. The issue remains unsettled; the Congressional Research Service concludes that "[a]lthough the constitutional question has never been definitively resolved, in practice the Senate has generally deferred to the House's insistence on originating appropriations." James V. Saturno, Congressional Research Service, The Origination Clause and the U.S. Constitution: Interpretation and Enforcement 16 (2002). See also Cong. Rec. 9047-51 (July 15, 1912) (statement by Sen. Williams, arguing that the Origination Clause applies to appropriations bills); see generally, Stephen Horn, Unused Power: The Work of the Senate Committee on Appropriations 246-53 (1970).

82 39 Cong. Rec. 2766 (1905) (House resolution presented in the Senate).

83 Id. at 2768.

84 Id. at 2769.

85 Id.

86 Id. at 2767 (motion to recede), 2770 (passage of bill).

87 H. Res. 518 (1994) (with respect to a Senate amendment establishing a fee for the use of FDA services); H. Res. 240 (1991) (with respect to a Senate amendment restricting imports of "conflict diamonds").

88 H. Res. 568, 106th Cong. (2000). For another example, in 1998 a provision extending several expiring tax provisions was added to an omnibus appropriations bill conference report. Title I of Pub. L. No. 105-277, 112 Stat. 2681 (1998); see Robert Keith, Congressional Research Service, 98-846 Gov, Revenue Provisions in Annual Appropriations Acts 1 (updated November 23, 1998) (describing the revenue provisions that were included in various appropriations bills during the 1980s and the 1990s).

89 136 Cong. Rec. 5056 (1990).

90 Id.

91 137 Cong. Rec. 85-86 (daily ed. Jan. 3, 1991). The speaker's statement was directed both to the jurisdiction of the Ways and Means Committee and the "constitutional prerogative of the House to originate revenue measures."

92 Id.

93 See, 149 Cong. Rec. H21 (daily ed. Jan. 8, 2003) ("The policy announced in the 102nd Congress with respect to jurisdictional concepts related to . . . tax and tariff measures, will continue to govern but need not be reiterated, as it is adequately documented as precedent in the House Rules and Manual.").

94 H.R. 4554 (1994).

95 140 Cong. Rec. H8036 (daily ed. Aug. 12, 1994).

96 Id.

97 Id.

98 See Pub. L. No. 103-330, 108 Stat. 2435 (1994).

99 144 Cong. Rec. H879 (daily ed. March 5, 1998).

100 H. Res. 379 (1998).

101 Aviation and Transportation Security Act, Pub. L. No. 107-071, section 116, 115 Stat. 625 (2001).

102 Pub. L. No. 106-294, 114 Stat. 1038 (2000).

103 S. 2673, 107th Cong. (2002).

104 See, Richard A. Oppel Jr. and Daniel Altman Ashington, "In a Shift, Republicans Pledge to Pass Accounting Bill," N.Y. Times, July 17, 2002, at C-1.

105 The Sarbanes-Oxley Act of 2002, P.L. No. 107-204, 116 Stat. 745 (2002).

106 19 U.S.C. 58c.

107 S. 1052, 107th Cong. (2002).

108 H.R. 4567 (2004). See "Thomas May Slow Homeland Bill in Customs Fee Dispute," CongressDaily PM, Sept. 17, 2004.

109 14 Cong. Debates 1152-53 (1837).

110 80 Cong. Rec. 448 (1936).

111 H.R. 2404, Pub. L. No. 79-28, 59 Stat. 47 (1946). See Deschlers' Precedents of the House of Representatives, ch. 13, section 18.4, at 312.

112 H.J.Res. 280, 101st Cong. (1989).

113 142 Cong. Rec. S419-24 (daily ed. Jan. 26, 1996).

114 2 Cong. Rec. 2075, 3076 (1874).

115 92 Cong. Rec. 5001 (1946).

116 See, e.g., id. at 5002-06 (remarks of Rep. McCormack).

117 Deschler's Precedents of the House of Representatives ch. 13, section 17, at 306.

118 S. 2578, 107th Cong. (2002).

119 148 Cong. Rec. 4154 (daily ed. June 27, 2002).

120 S. 2986 (2004).

121 See, e.g., 117 Cong. Rec. 12991 (1971) (returning to the Senate a bill modifying the tariff schedules); 111 Cong. Rec. 11149 (1965) (returning to the Senate a bill to raise the duty on fishery products); 80 Cong. Rec. 1183 (1936) (returning to the Senate a bill to amend the Tariff Act of 1930).

122 74 Cong. Rec. 6706, 6712 (1931).

123 H. Res. 544, 101st Cong. (1988) (returning to the Senate S. 2662).

124 H. Res. 486, 103rd Cong. (1994) (returning to the Senate S. 729).

125 H. Res. 601, 105th Cong. (1998) (returning to the Senate S. 361).

126 H. Res. 249, 106th Cong. (1999) (returning to the Senate S. 254).

127 H. Res. 240, 107th Cong. (2001) (returning to the Senate H.R. 2500).

128 H. Res. 402, 104th Cong. (1996) (returning to the Senate S. 1463).

129 H. Res. 554, 104th Cong. (1996) (returning to the Senate H.R. 400, the Anaktuvuk Pass Land Exchange and Wilderness Redesignation Act of 1995, which the Senate had amended to expand the certain categories of income exempt from taxation under the Alaska Native Claims Settlement Act); S. Res. 577, 103rd Cong. (1994) (returning to the Senate S. 1216, the Crow Boundary Settlement Act of 1994, which exempted certain payments and benefits from taxation); H. Res. 479, 100th Cong. (1988) (returning to the Senate S. 727, which addressed the tax treatment of income derived from the exercise of certain Indian treaty rights).

130 H. Res. 287, 101st Cong. (1989) (returning to the Senate S. 686, the Oil Pollution Liability and Compensation Act of 1989, which allowed a credit against the oil liability tax for certain items of expense).

131 H. Res. 545, 104th Cong. (1996) (returning to the Senate S. 1311, the National Physical Fitness and Sports Foundation Establishment Act, which waived the application of certain rules for tax-exempt foundations); H. Res. 177, 101st Cong. (1989) (returning to the Senate S. 774, the Financial Institution Reform, Recovery and Enforcement Act of 1989, which conferred tax-exempt status on two newly created institutions); H. Res. 425, 74th Cong. (1936) (returning to the Senate S. 3410, exempting from taxation the operation of the Olympic Games).

132 Compare, Resolution of December 15, 1905, 39 Cong. Rec. 452 (returning to the Senate S. 1475, establishing a specific tax on certain newly issued bonds, and otherwise exempting the bonds from taxation), with the Senate debate of December 15, 1905, 39 Cong. Rec. 581-85 (rejecting an Origination Clause challenge to a similar provision of a conference report, which subsequently was adopted by both the Senate and House).

133 S. 1190, enacted as Pub. L. No. 107-22, 115 Stat. 196 (2001).

134 H. Res. 479, 103rd Cong. (1994).

135 H. Res. 251 (returning to the Senate S. 1241).

136 S. 1190, enacted as Pub. L. No. 107-22, 115 Stat. 196 (2001).

137 Madison's Notes, supra note 5, at 238.

138 U.S. Const. Art. I, section 5, cl. 1.

139 Rules of the House of Representatives XVI:7 (108th Cong. 2004) ("No motion or proposition on a subject different from that under consideration shall be admitted under color of amendment").

140 Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure 854 (1992) ("The Senate does not have a general rule requiring that amendments be germane to the measure to which they are proposed").

141 See Evans, supra note 1.

142 Id.

143 Annals of Cong., 9th Cong., 2nd Sess. 630 (Feb. 1807).

144 Id.

145 See generally, Joseph A. Hill, "The Civil War Income Tax," Quarterly Journal of Economics 416 (1894).

146 Id. at 436-42.

147 Cong. Globe 791 (1871).

148 Cong. Globe 565, 598 (1871).

149 Id. at 802.

150 Cong. Globe 2105 (1872).

151 Id. at 2106.

152 Id. See also id. at 2107 (remarks of Rep. Garfield) ("I do not deny [the Senate's] right to send back a bill of a thousand pages as an amendment to our two lines. But I do insist that that their thousand pages must be on the subject matter of our bill."); id. at 2108 (remarks of Rep. Hale) ("amendments of the Senate shall be confined to the objects which the House selects in whatever bills it may send to the Senate").

153 Id. at 2111.

154 S. Rep. No. 146 (1872).

155 Id. at 1-2.

156 Id. at 3 (emphasis in original).

157 Id. at 4-5.

158 8 Cong. Rec. 1478 (1879) (emphasis in original).

159 Id.

160 Id. at 1480.

161 Id. at 1482.

162 The House had passed a bill making relatively minor reductions in various internal taxes, which the Senate had amended with what a House member, Rep. Hammond, characterized as "a general revision of the statutes . . . so as both to increase and reduce duties on imports, and in many cases to repeal and in others to amend the laws imposing import duties." 14 Cong. Rec. 3336 (1883). When Hammond proposed a resolution to return the amendment to the Senate, another member proposed an alternative resolution requiring the House conferees to "consider fully the constitutional objections to [the] bill as amended by the Senate." Id. at 3340. The substitute was adopted, id. at 3344, and the eventual conference report contained various elements of the Senate amendments. See II Hind's Precedents of the House of Representatives section1492 (1907).

163 20 Cong. Rec. 2208 (1889).

164 See Cong. Rec. 469, 4751 (1909) (remarks of Reps. Payne and Gillette, explaining why the House was willing to agree to the corporation tax).

165 220 U.S. 107 (1910).

166 Flint, 220 U.S. at 143.

167 232 U.S. 310 (1914).

168 Rainey, 232 U.S. at 317 (quoting lower court decision). More recently, in Armstrong v. United States, the Ninth Circuit Court of Appeals rejected an Origination Clause challenge to the 1982 tax increase that originated as a Senate amendment to a minor House tax bill, concluding: "[O]nce a revenue bill has been initiated in the House, the Senate is fully empowered to propose amendments, even if their effect will be to transform a proposal lowering taxes into one raising taxes." 759 F.2d at 1832.

169 114 Cong. Rec. 17970 (1968).

170 Id.

171 Id.

172 Id. at 17971.

173 Id.

174 Id. at 17973.

175 Id. at 179743-179747.

176 Id. at 17977.

177 See Richard Cohen, Rostenkowski, 130-31 (1999).

178 128 Cong. Rec. 18375 (1982).

179 Id. at 18376.

180 Id.

181 See, e,g., id. at 18377 (remarks of Rep. Moore), 18379 (remarks of Rep. Gradison).

182 Id. at 18379.

183 Id. at 18385.

184 P.L. No. 97-248, 96 Stat. 324 (1982).

185 128 Cong. Rec. 18376-77 (1982).

186 A recent report by the Congressional Research Service puts it this way:

Saturno, supra note 77 , at 1.

187 Adrian Vermeule, "The Constitutional Law of Congressional Procedure," 71 U. Chicago L. Rev. 361, 424 (2004).