[House Hearing, 113 Congress]
[From the U.S. Government Printing Office]







                        THE ORIGINAL MEANING OF 
                         THE ORIGINATION CLAUSE

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 29, 2014

                               __________

                           Serial No. 113-73

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
MARK AMODEI, Nevada                  JOE GARCIA, Florida
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                    JIM JORDAN, Ohio, Vice-Chairman

STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            JERROLD NADLER, New York
STEVE KING, Iowa                     ROBERT C. ``BOBBY'' SCOTT, 
LOUIE GOHMERT, Texas                 Virginia
RON DeSANTIS, Florida                HENRY C. ``HANK'' JOHNSON, Jr.,
JASON T. SMITH, Missouri               Georgia
                                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel




















                            C O N T E N T S

                              ----------                              

                             APRIL 29, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     3

                               WITNESSES

Nicholas M. Schmitz, Stanford University, Stanford, CA
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Paul D. Kamenar, Attorney-at-Law, Washington, DC
  Oral Testimony.................................................    24
  Prepared Statement.............................................    27
Joseph Onek, Principal, The Raben Group, Washington, DC
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37
Todd F. Gaziano, Executive Director of the D.C. Center, Pacific 
  Legal Foundation, Washington, DC
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Subcommittee on the Constitution and Civil Justice.............    81
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    83

 
                        THE ORIGINAL MEANING OF 
                         THE ORIGINATION CLAUSE

                              ----------                              


                        TUESDAY, APRIL 29, 2014

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10:07 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Trent 
Franks (Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Jordan, Chabot, King, 
Gohmert, DeSantis, Cohen, Nadler, Scott, and Johnson.
    Staff present: (Majority) Zachary Somers, Counsel; Tricia 
White, Clerk; (Minority) James J. Park, Minority Counsel; and 
Veronica Eligan, Professional Staff Member.
    Mr. Franks. The Subcommittee on the Constitution and Civil 
Justice will come to order. And without objection, the Chair is 
authorized to declare recesses of the Committee at any time.
    I want to welcome all of you here today, the Members and 
the witnesses. And I especially want to welcome our new Ranking 
Member, Congressman Steve Cohen from Tennessee. He and I have 
served together for many years, and I have a great deal of 
respect and affection for Congressman Cohen and look forward to 
working with him. Welcome.
    The first clause of Article 1, Section 7 of the United 
States Constitution provides that ``All bills for raising 
revenue shall originate in the House of Representatives, but 
the Senate may propose or concur with amendments as on other 
bills.'' This clause, commonly referred to as the origination 
clause, was designed by the Constitution's framers to bring the 
power to tax closer to the people by giving them control over 
initiating revenue legislation to their immediate 
representatives, members of the House of Representatives, who 
are elected every 2 years.
    The framers viewed the origination clause as critical 
protection against government abuses and the creation of an 
aristocracy in America. The power to tax is one of the most 
fundamental operations of a sovereign and one of the most 
dangerous to liberty. As Chief Justice John Marshall famously 
observed, ``The power to tax involves the power to destroy.''
    Simply put, the origination of revenue bills is not a small 
or marginal issue. Indeed, the need for a just tax system was 
the moral justification for our entire War of Independence. Its 
importance was expressed through the Virginia House of 
Burgesses, the Stamp Act Congress, and the First Continental 
Congress, all of whom petitioned the Crown and the parliament 
in England for redress of their tax grievances.
    It was with these realities in mind that the origination 
clause of our Constitution was written. The clause was, 
according to Massachusetts Convention delegate Elbridge Gerry, 
``the cornerstone of the accommodation'' of the Great 
Compromise, 1787. Thus, without the origination clause at the 
core of the Great Compromise, the Constitution as we know it 
today would not have come into being at all.
    When the framers wrote the Constitution, they knew it was 
vital that the power to raise and levy taxes originate in the 
people's House, whose Members are closest to the electorate 
with 2-year terms rather than in the Senate where the members 
sit unchallenged for 6-year terms, who do not proportionately 
represent the American population, and who already enjoy their 
own unique and separate Senate power granted to them in the 
Constitution. As George Mason observed during a debate in the 
Constitutional Convention, ``Should the Senate have the power 
of giving away the people's money, they might soon forget the 
source from whence they received it. We might soon have an 
aristocracy.''
    I have called today's hearing to examine the roots of the 
origination clause, its original meaning and purpose, and to 
see where the origination clause stands today over 225 years 
after the Great Compromise. I am concerned that over time the 
original meaning of the clause has been set aside and the 
protections the clause affords to American taxpayers have been 
severely eroded.
    Instead of a robust check on the powers of the Federal 
Government over the people, I am troubled that the clause has 
become a mere formality in practice, a formality that may be 
dispensed with as easily as the Senate taking any bill that 
originated in the House and striking the entire text of that 
bill and replacing it with a ``bill for raising revenue,'' no 
matter how non-germane the Senate's amendment is to the 
original House-passed measure. Now, this sort of procedure 
ignores the framers' intent, and if allowed to stand, it 
renders the origination clause of our Constitution a dead 
letter.
    And I look forward to the witnesses' testimony on this 
important subject. I hope it helps us all inform the members of 
this Congress and of the House more generally of the 
fundamental importance of the origination clause to our 
constitutional system. For the responsibility of enforcing the 
origination clause rests in the first instance right here in 
the House of Representatives.
    If we as Members of the House, who took a solemn oath to 
support and defend the Constitution, including its origination 
clause, fail to defend this right and responsibility as the 
immediate representatives of the people and most accountable to 
them, we dishonor and fundamentally abrogate our sworn oath to 
support and defend the Constitution of the United States from 
all enemies foreign and domestic.
    With that, I would now recognize the Ranking Member for an 
opening statement.
    Mr. Cohen. Thank you, Mr. Chairman. It is indeed my first 
meeting as Ranking Member of this Subcommittee, and I am 
honored to serve in this position and honored to serve with 
you. And we had a good relationship as Chair and Ranking Member 
of the Subcommittee on Commercial and Administrative Law during 
the 111th Congress, and we will work together here.
    Of course, this hearing is on the original meaning of the 
origination clause. It plays an important role in ensuring that 
the people's House has the first say when it comes to bills 
raising revenue. We are the House closest to the people and 
always have been, but not necessarily like it was when the 
framers framed the Constitution, and I think that is an issue 
that I do not think anybody touches on. And maybe I am wrong, 
but we will throw it out there.
    The Constitution reflects a whole bunch of compromises to 
bring about the great document that served the original States 
and regions of our country which were mostly on this side of 
the Mississippi River. The makeup of the Congress itself, the 
House was 2-year terms, the Senate 6-year terms; the House 
closer to the people elected by population, the Senate by 
States. And the smaller States have got their clout in the 
Senate, and then the larger States have more representation 
obviously in the House where it is by population.
    And the origination clause was a balancing of those 
interests to give the House, with its roots there with the 
people and origination, the opportunity to originate all these 
revenue bills. And that is great politics and great theory. It 
also gave the Senate in the balancing act the power to propose 
concurrent amendments as in all of the bills. You cannot get 
anything done without both Houses, the House and the Senate. So 
the Senate does get to vote and approve, et cetera, et cetera, 
et cetera.
    But, of course, when this came around, this was all before 
the 17th Amendment, and the Senate was a bunch of guys that 
were--and they were all guys--that were picked by their State 
legislatures to basically be the voices of the powers that be 
in the State legislature, the governors, the speakers of the 
House and the Senate. So it made a lot of sense then really 
that these guys who were, in many ways, lackeys of the State 
house, were not to originate bills requiring people to fork out 
their money, their taxes, to fund the government.
    But that has changed. It changed in the 20th century when 
we required the Senate to be elected by the people and took 
away the yoke of the State capitol from their necks, because 
that is all the senators were basically lackeys of the State 
legislative Capitol Hill gang in each State. They picked the 
guys. They were wealthy guys they liked and they wanted to give 
them an opportunity to go to Washington and have some say as a 
senator. They protected the interests of the State, but really 
they protected the interests of the State's interests--the 
speakers, the governors, the guys that ran the show, the 
Tammany Halls in Albany. They picked their own guys. And 
certainly they should not have the right to originate revenue 
bills because that would be almost like England, unelected 
people, because they were not elected. They were chosen. So you 
have got to view all of this in that context, and we have 
performed it and changed it, and the senators are now human 
beings, not chattels of State capitols. Free will.
    Some observers say that the origination clause is in peril. 
These observers, including some of our witnesses today, allege 
that Congress did an end run around the origination clause when 
it passed the Patient Protection and Affordable Care Act, and 
particularly the individual mandate and the shared 
responsibility payment. It will be made more evident during our 
discussion today, but neither the facts nor the law support 
this assertion, although people can argue such. And that is why 
we have cases, and that is why we have lawyers even on sides 
that are bound to lose.
    Supreme Court precedent and congressional practice make 
clear that a bill with a primarily non-revenue purpose is not a 
bill for raising revenue within the origination clause's 
meaning even if the bill raises revenue so long as the revenue 
supports the government programs. So the Supreme Court 
precedent both for primarily non-revenue purpose--giving people 
healthcare and saving them from the final destination for some 
period of time--is not a bill just simply to raise revenue.
    Here the Supreme Court concluded in 2012 in National 
Federation of Independent Business v. Sebelius--the late 
Sebelius--the Affordable Care Act had the primary purpose of, 
among other things, expanding health insurance coverage. And 
the individual mandate and shared responsibility payment was 
the key to meeting this goal. I should note for context 
purposes that it is a little over a week away from the U.S. 
Court of Appeals, the D.C. circuit, hearing of oral arguments 
in Sissel v. HHS, where the plaintiff, Sissel, challenges the 
constitutionality of the Affordable Care Act on origination 
clause grounds. And I question whether the best use of our 
resources right now--of course I am the Ranking Member so all I 
can do is question that--is to have a hearing on a matter that 
is not yet heard by the D.C. Circuit court. But we are here, 
and I look forward to the discussion.
    It is interesting. I read a Juan Williams op-ed, and I 
cannot remember the man's name, but it was germane and central 
to the Romneycare proposal. And he said that the Affordable 
Care Act and Romneycare were really basically the same thing, 
and it is just all about messaging. And that it has been 
messaged that the Affordable Care Act has not been successful. 
The message was that Romneycare was successful.
    And so, people kind of think Romneycare was successful and 
the Affordable Care Act maybe was not, but that if it was not 
for the messaging, everyone would have embraced it and liked 
it, and realized it was the same thing that the Republicans 
brought forward as an alternative to Hillarycare, and it was 
Romneycare. But the followers of Romney have vilified and 
attacked the Affordable Care Act. Interesting that the same 
subject matter could be viewed and messaged in different 
things, and this is a perpetuation, continuation, of that same 
messaging program.
    With that, I yield back the rest of my time.
    Mr. Franks. And I thank the gentleman. And without 
objection, the other Members' opening statements will be made 
part of the record.
    So let me now introduce our witnesses. Our first witness is 
Nicholas Schmitz. Mr. Schmitz is a graduate of the United 
States Naval Academy and has a graduate degree in political 
theory and philosophy from Oxford University, where he studied 
as a Rhodes Scholar. Mr. Schmitz is currently pursuing his 
second graduate degree at Stanford University.
    After graduating from Oxford, Mr. Schmitz served as an 
infantry officer in the United States Marines in Helmand 
Province in Afghanistan, before spending the last several years 
on the teaching faculty in the political science department at 
the Naval Academy. Mr. Schmitz is the author of the Law Review 
article ``The Origination Clause: Meaning, Precedent, and 
Theory, from the 12th to the 21st century.'' We are glad you 
are here, sir.
    The second witness is Paul Kamenar. Mr. Kamenar is an 
attorney with over 35 years' experience litigating cases in the 
U.S. Supreme Court and lower Federal courts raising important 
constitutional, statutory, and public interest issues. He is 
also a senior fellow of the Administrative Conference of the 
United States.
    Mr. Kamenar was formerly a clinical professor of law at 
George Mason University School of Law, an adjunct professor at 
Georgetown University Law Center, and senior executive counsel 
at the Washington Legal Foundation where he represented over 
250 Members of Congress in original amicus curiae litigation in 
dozens of cases, and testified before Congress on numerous 
occasions. Welcome, sir.
    Our third witness is Joe Onek. Mr. Onek is a principal at 
the Raben Group. He has experience working in all three 
branches of government, including most recently as senior 
counsel to Speaker Nancy Pelosi. Additionally, Mr. Onek served 
as an associate director on the White House Domestic Policy 
Staff and later as the deputy counsel during the Carter 
Administration, and during the Clinton Administration as the 
senior coordinator for rule of law at the State Department, and 
principal deputy associate attorney general at the Department 
of Justice. After graduating from law school, he clerked for 
Justice William Brennan on the United States Supreme Court. 
Thank you, sir, for being here.
    Our final witness is Todd Gaziano. Mr. Gaziano is executive 
director of the D.C. Center and senior fellow in constitutional 
law at the Pacific Legal Foundation. Prior to joining to 
Pacific Legal Foundation, he served in the Justice Department's 
Office of Legal Counsel where he provided advice to the White 
House and four attorneys general on constitutional matters. He 
was a Chief Subcommittee Counsel in the U.S. House of 
Representatives, and was the founding director of Heritage 
Foundation's Center for Legal and Judicial Studies. From early 
2008 to December 2013, he served as an appointee of the House 
of Representatives on the U.S. Commission on Civil Rights. And 
thank you again for being here, Tom.
    Now, each of the witnesses' written statements will be 
entered into the record in its entirety, and I would ask each 
witness to summarize his testimony in 5 minutes or less. And to 
help you stay within that time, there is a timing light in 
front of you. The light will switch from green to yellow 
indicating that you have 1 minute to conclude your testimony. 
When the light turns red, it indicates that the witnesses' 5 
minutes have expired.
    And before I recognize the witnesses, it is the tradition 
of the Subcommittee that they be sworn. So if you would please 
stand.
    [Witnesses sworn.]
    Mr. Franks. Please be seated. Let the record reflect that 
the witnesses answered in the affirmative.
    I would now recognize our first witness, Mr. Schmitz. 
Please turn your microphone on, Nicholas--Mr. Schmitz--before 
you speak there.

               TESTIMONY OF NICHOLAS M. SCHMITZ, 
               STANFORD UNIVERSITY, STANFORD, CA

    Mr. Schmitz. Thank you. Mr. Chairman, Mr. Ranking Member, 
and Members of the Subcommittee. Thank you for the opportunity 
to testify today. I have submitted my written statement for the 
record and included a copy of my recently-published scholarly 
article in the British Journal of American Legal Studies titled 
``The Origination Clause: Meaning, Precedent, and Theory from 
the 12th to the 21st Century.'' * My research partner and co-
author, Professor Priscilla Zotti, is the chairman of the 
political science department at the U.S. Naval Academy.
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    *The material referred to is not reprinted in this hearing record 
but is available at: http://www.bcu.ac.uk/Download/Asset/acecfa6b-59c9-
4f7b-a2cd-6a09a1bc281b.
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    The origination clause requires that all bills for raising 
revenue shall originate in the House of Representatives, but 
the Senate may propose or concur with amendments as on other 
bills. As explained in more detail in our journal article, its 
history reveals a deliberate procedural restraint on the taxing 
power that no branch of the government, except the direct 
representatives of the people, the House of Representatives, 
who are elected every 2 years, and who are most familiar with 
the circumstances of the people, can constitutionally propose 
new taxation.
    The 1215 A.D. Magna Carta forced upon King John at 
Runnymede by his barons following their open insurrection 
contained among its 63 clauses no scutage or aid will be levied 
in our realm except by the common counsel of our realm. By 
1678, the House of Commons required that all bills for the 
purpose of taxation or containing clauses imposing a tax must 
originate in the House of Commons and not in the House of 
Lords. Under American colonial charters during the time, new 
taxes typically required the ``advice, assent, and approbation 
of the free men of the said province.''
    In 1764, the Virginia House of Burgesses sent its famous 
petition to the House of Commons explaining colonial opposition 
to the Sugar Act. ``The Council of Burgesses conceive it 
essential to British liberty that laws imposing taxes on the 
people ought not to be made without the consent of the 
representatives chosen by themselves, who at the same time that 
they are acquainted with the circumstances of their 
constituents, sustain a proportion of the burden laid upon 
them.''
    The principle is echoed in the fundamental objection of the 
first act of the coordinated American government in the Stamp 
Act Congress. It was reiterated again by the First Continental 
Congress in October 1774. Following independence, the new 
States formed their own constitutions. Of the nine available 
State constitutions with bicameral legislatures in 1790, seven 
had lower house origination clauses. Of the seven with 
origination clauses, six allowed upper house amendment to 
revenue raising bills.
    When the Constitutional Convention opened on May 25th, 
1787, the fundamental topic of disagreement between the 
delegates was over the nature of representation in the 
legislation branch. The small States insisted on retaining the 
equal representation they enjoyed under the Articles of 
Confederation, while the larger States wanted to shift the 
national legislation to be proportionately representative.
    What it took for the Great Compromise was Benjamin 
Franklin's recognition that the fundamental disagreement was 
over property and taxation, and Elbridge Gerry's subsequent 
proceeding to ``restrain the senatorial branch from originating 
money bills. The other branch was more immediately the 
representatives of the people, and it was a maxim that the 
people ought to hold the purse strings.'' The origination 
clause was ``the cornerstone of that accommodation.''
    The debate on the wisdom of the clause continued; however, 
the imperative for adding the Senate amending power was 
primarily to prevent the House from abusing the absence of an 
amending power by disingenuously tacking foreign matters onto 
money bills, and then claiming that the Senate could not amend 
out these non-germane clauses. The primary impetus for the 
clause was not to expand the Senate's influence over tax law, 
and certainly not to allow the Senate to effectively originate 
taxes.
    Ultimately, the argument that seemed to prevail in the 
Constitution was purely pragmatic. ``Taxation and 
representation are strongly associated in the minds of the 
people, and they will not agree that any but their immediate 
representatives shall meddle with their purses. In short, the 
acceptance of this plan will inevitably fail if the Senate be 
not restrained from originating money bills.''
    I offer two notes on the meaning of the actual words of the 
clause that are very commonly misconstrued by contemporary 
legal analysis. First, the phrase ``bill for raising revenue'' 
did not connote only bills whose primary purpose or sole 
purpose was raising revenue. The vast weight of historical 
evidence from the phrases used in the Revolution, the 
Convention, the State constitutions from which the exact phrase 
was adopted, and the ratifying debates belie this common 
argument. The `purposive'' interpretation is not supported by 
the majority of historical evidence.
    Second, the concept of incidental taxation is specified 
nowhere in the Constitution, and it was both discussed and 
rejected in the 1787 Convention. Such a distinction between 
``incidental revenue'' and ``revenue proper'' does not appear 
to be historically justified, especially if the revenue comes 
from taxes rather than other revenue sources, such as user fees 
or sales of government assets. Ironically, Judge Joseph Story's 
often misconstrued passage on incidentally created revenue 
listed illustrate examples of the concept, none of which 
included actual taxes.
    I thank you for your time, and I would be happy to 
elaborate further on all of these issues.
    [The prepared statement of Mr. Schmitz follows:]



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    Mr. Franks. Thank you, sir.
    And I will now recognize Mr. Kamenar for 5 minutes.

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

    Mr. Kamenar. Thank you, Mr. Chairman, Mr. Ranking Member, 
and Members of the Subcommittee. Thank you for inviting me this 
morning to testify on the origination clause. I want to 
particularly thank you, Mr. Chairman and Congressman Gohmert, 
for the leadership you have shown on this issue and your 
fidelity to your oath of office to support and defend the 
Constitution by, one, introducing House Resolution 153 with 50 
of your colleagues expressing the sense of the House that the 
Affordable Care Act violated the origination clause because it 
was a bill for raising revenue that originated in the Senate; 
two, by filing a friend of the court brief with your colleagues 
in the U.S. Court of Appeals in the Sissel case.
    And I am honored to represent you and your colleagues as 
your counsel in your case, along with my co-counsel, Joseph 
Schmitz and Jackie Pick. And I have submitted a copy of the 
brief for the record;** and three, finally by holding these 
timely and, I believe, historic hearings to inform the American 
public and the House of the importance of the origination 
clause to the founding of this country, and the jeopardy that 
clause is in.
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    **The material referred to is not reprinted in this hearing record 
but is available at: http://www.pacificlegal.org/document.doc?id=1322.
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    I am struck by canard constantly repeated that the 
Affordable Care Act was upheld by the law of the land, by the 
Supreme Court, so get over it. Well, first of all, the Court in 
NFIB struck down the Medicaid portion of the bill by a vote of 
7 to 2 as a violation of the 10th Amendment's powers reserved 
to the States. Second, even though Justice Roberts upheld the 
mandate penalty as a tax and a novel ruling, at least he 
inserted this important caveat in his opinion: ``Even if the 
taxing power enables Congress to impose a tax on not obtaining 
health insurance, any tax must still comply with other 
requirements in the Constitution.'' In short, the Supreme Court 
did not consider the origination clause, but left it open.
    I would like to briefly address the two parts of that 
clause. The first part, of course, is ``All bills raising 
revenue shall originate in the House.'' The constitutional 
history, as you heard, is very broad on what raising revenue 
is. It is broad money bills. In the first case in 1875, the 
Federal Court said ``Certain legislative measures are 
unmistakably bills for raising revenue. These impose taxes on 
the people either directly or indirectly.'' With respect to 
such bills, it was reasonable that the immediate 
representatives of the taxpayers should alone have the power to 
originate them. So any notion that the Affordable Care Act, 
which raises $500 billion in taxes, is not a revenue raising 
bill because its primary purpose is to promote healthcare is 
simply a false argument. There is simply no historical basis 
for this purpose test.
    Turning to the jurisprudence of this case, the most recent 
being United States v. Munoz, as a preliminary matter, 
arguments are being made that the origination clause is such 
that it should not even be adjudicated in the courts, that the 
courts should defer to the legislative branch as to both the 
scope of the House's revenue raising power and the scope of the 
Senate's amending power. I think Justice Thurgood Marshall had 
it exactly right when he cited James Madison's Federalist 58, 
solemnly rejecting that argument and Munoz-Flores when he said, 
``Provisions for the separation of powers within the 
legislative branch are thus not different in kind from 
provisions concerning relations between the branches. Both sets 
of provisions safeguard liberty. A law passed in violation of 
the origination clause would thus be no more immune from 
judicial scrutiny because it was passed by both Houses and 
signed by the President than would be a law passed in violation 
of the First Amendment.''
    Now, in reaching the merits, the Munoz court did conclude 
that the $25 assessment provision imposed on a criminal was not 
a bill for raising revenue for the general treasury, but 
stated, ``The special assessment provision was passed as a part 
of a particular program to provide money for that program, the 
client victim's fund.'' Although any excess was to go to the 
treasury, there is no evidence that Congress contemplated the 
possibility of a substantial excess, nor did such excess in 
fact materialize. Any revenue for the general treasury that the 
provision created was thus ``incidental'' to the provision's 
primary purpose.
    While we may disagree with this narrow ruling that these 
little user fees are not revenue raising, it is absurd to argue 
that that decision in any way is a precedent for upholding the 
Affordable Care Act in scope and content. One, $500 billion in 
taxes under the Affordable Care Act are not nominal special 
assessments or user fees. And two, more importantly, the 
billions of taxes in that Act go directly into the general 
treasury just like other taxes, and they are not placed in a 
separate fund for an account like they were in Munoz.
    Finally, as to the second part of the origination clause 
governing the Senate's limited amending power, the concern 
during the constitutional debates was that if the Senate could 
not have any amendment power at all, the House would abuse its 
revenue raising power by attacking non-revenue raising measures 
and lock the Senate into either voting up or down on it. And, 
therefore, they wanted a limited provision to have some 
amendments on that.
    Now, in Stone v. Tracy, the Supreme Court upheld this 
limited amendment of a major House tax bill when the Senate 
substituted a corporate tax provision for a House inheritance 
tax provision, but the Court noted that this one small 
amendment was germane to the House bill and did not raise any 
new revenue. So the notion that this limited amending power 
could include the unheard of and never before accepted attempt 
to gut a small House bill providing tax credits, which does not 
even raise taxes, as a shell bill and replaced it entirely with 
a non-germane 2,000-page bill raising $500 billion in tax, and 
then claim with a straight face that the bill originated in the 
House simply because the Senate pasted the House bill number 
atop the Senate healthcare bill is simply a shell game. If the 
courts allow this legislative sleight of hand, the limited 
amending power will swallow up the whole House's power to 
originate revenue bills contrary to the original meaning.
    In conclusion, I note Professor Randy Barnett of Georgetown 
when he concluded in a recent Washington Post article, 
``Revenue bills shall originate in the House of 
Representatives, but the Affordable Care Act did not. As 
constitutional questions go, this is about as easy as it 
gets.''
    Thank you, and I would be glad to answer any questions.
    [The prepared statement of Mr. Kamenar follows:]



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                               __________
    Mr. Franks. Thank you, Mr. Kamenar.
    And, Mr. Onek, you are now recognized for 5 minutes, sir.

             TESTIMONY OF JOSEPH ONEK, PRINCIPAL, 
                THE RABEN GROUP, WASHINGTON, DC

    Mr. Onek. Thank you. Mr. Chairman, Mr. Ranking Member, 
Members of the Subcommittee, the reports of the death of the 
Origination Clause are greatly exaggerated. At this very 
moment, the Senate is refraining from sending its immigration 
bill to the House because the bill contains revenue provisions, 
and the Senate fears the House will decide that the bill 
violates the Origination Clause and will reject it with a blue 
slip resolution. The Origination Clause lives.
    The call here to give courts a greater role in enforcing 
the Origination Clause strikes me as both ironic and misguided. 
The purpose of the Origination Clause, as Mr. Schmitz has so 
eloquently pointed out, is to bring decisions on tax and 
revenue policy closer to the people. But more extensive 
judicial intervention would have precisely the opposite effect. 
It would transfer power on tax and revenue issues from the most 
democratic branches of government to the least democratic 
branch, the courts. This is not what the framers of the 
Origination Clause had in mind.
    The Sissel case in particular asks the courts to use the 
Origination Clause to strike down a central provision of the 
Affordable Care Act, the individual mandate. It claims that the 
individual mandate violates the clause because the mandate is a 
tax and did not originate in the House. The District Court 
correctly decided, based on Supreme Court precedent, that the 
clause does not apply here because the primary purpose of the 
individual mandate is not to raise revenue. Indeed, the 
government would be happiest if the mandate raised no money at 
all because everybody would get insurance.
    The purpose of the individual mandate, as everyone here 
knows perfectly well, is to induce more people, and especially 
healthier people, to purchase health insurance. Now, it is 
still too early to tell whether the individual mandate is 
working as intended, but initial results are encouraging. Eight 
million Americans have enrolled in health insurance plans 
through the Affordable Care Act's exchanges. Five million more 
have enrolled directly in insurance plans that comply with the 
Act without going through the exchanges. Crucially, a 
substantial proportion of these enrollees are younger and 
presumably healthier individuals.
    The District Court also concluded correctly that the 
individual mandate originated in the House within the meaning 
of the Origination Clause. The individual mandate was part of 
an amendment that the Senate made to a House bill that gave 
certain tax benefits to military personnel and imposed a small 
increase in corporate taxes. Now, the Origination Clause 
expressly provides that the Senate may propose amendments to 
House revenue bills as on other bills.
    Sissel argues, however, that the Senate amendment was not 
germane to the House bill. But the Senate and the House 
themselves do not require that Senate amendments to a House 
revenue bill be germane to that bill. And there is nothing in 
the Constitution that requires such germaneness. It would, 
therefore, be inconsistent with separation of power principles 
and with the specific directive of Article 1, Section 5 of the 
Constitution that each House may determine the rules of its 
proceedings for the courts to interfere with the policy of the 
House and the Senate to accept non-germane amendments.
    Now, this position means that some Origination Clause 
issues are not reviewable by the courts. But that has always 
been the case. Whenever, for example, the House rejects and 
blue slips a Senate bill as violating the Origination Clause, 
that is not reviewable by the courts. And I do not think House 
Members would want it any other way.
    Sissel also contends that the original House bill was 
itself not a bill for raising revenue, and that, therefore, the 
Senate was prohibited from adding a revenue amendment to it. 
But the tax imposed by the House bill clearly did raise revenue 
and, unlike the individual mandate, was not incidental to some 
other governmental purpose.
    In conclusion, it is noteworthy that despite the 
contentiousness of the Affordable Care Act, the objections 
being raised by Sissel were not raised in either the House or 
the Senate. There was no blue slip resolution or Senate point 
of order. Instead, Sissel is pursuing this issue in the courts. 
But as I have noted earlier, transferring power on tax and 
revenue issues to the least democratic branch is not what the 
framers of the Origination Clause intended. Thank you.
    [The prepared statement of Mr. Onek follows:]



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

 TESTIMONY OF TODD F. GAZIANO, EXECUTIVE DIRECTOR OF THE D.C. 
        CENTER, PACIFIC LEGAL FOUNDATION, WASHINGTON, DC

    Mr. Gaziano. Good morning, Mr. Chairman and other 
distinguished Members of the Subcommittee. I am privileged to 
be part of the Pacific Legal Foundation that represents Matt 
Sissel in his constitutional challenge to Obamacare's 
individual mandate. And I am struck by the fact that Mr. Onek 
suggests that the courts should not be involved in that 
challenge. Yet the Ranking Member in his opening statement 
suggests that this House should not be involved in inquiring 
about this matter. If asked, I would be delighted to explain 
more in questioning why both the House and the courts need to 
be involved. And I will use the Chadha case as an important 
proof that our individual liberty requires that all branches of 
the Federal Government enforce our fundamental rights.
    But let me begin this morning with the following 
hypothetical: A future House impeaches the Attorney General, 
let us say, for perjury before this body. The Senate then takes 
up that impeachment article, and through a very creative 
substitute tries and convicts a future justice, Richard 
Epstein, of multiple counts of bribery and other high crimes.
    My question is, could this House ratify that conviction and 
remove Justice Epstein by passing a conforming article of 
impeachment after the Senate trial? Well, of course not. The 
impeachment of a particular officer must originate in this 
House, and the subsequent Senate trial must be limited to those 
counts and articles that originated in the House.
    But why is that so? Did the 17th Amendment not change the 
nature of the Senate? Why should the world's most deliberative 
body over there in the Senate be confined to only hearing or 
trying impeachment on those people that this House first 
impeached and on those counts that this House originated? Is 
Justice Epstein's trial not germane to the articles of 
impeachment on the Attorney General? Both are officers. Both 
committed high crimes. What could be more germane than that? 
And did the need of the Senate to remove that loudmouth justice 
not justify this little legislative jujitsu?
    Let us suppose that the House backdates the articles of 
impeachment after the Senate trial. Would that not take care of 
all the formalities involved? Surely no one outside Congress 
could complain. Well, if we think that the future Justice 
Richard Epstein, and hopefully he will not mind me using his 
name, would have a strong constitutional--a winning 
constitutional--claim to keep his seat, my question then is, 
why do ``modern'' thinkers treat the Origination Clause 
requirements differently? There could be several reasons for 
that, but I suspect one of them is a lack of reverence for the 
fundamental liberty protected by the Origination Clause.
    This hearing and the Sissel case will help resolve whether 
that important check on our individual liberty can endure. 
Boiled down to one sentence, the only part of the Senate 
healthcare bill and its 17 or so historically large taxes in a 
2,074-page bill that originated in the House was the bill 
number. Putting other grounds for striking that down aside, one 
fact should convince us that that was invalid: the use of such 
House bill designations did not exist at the time of the 
Framing or for 30 years thereafter. Thus, the argument that it 
could be a constitutional amendment to strip everything out of 
a bill and just leave that number that did not exist at the 
time of the Framing and could not possibly have had any 
consequence to the Framers who ratified it, must be wrong.
    An amendment may improve or augment the original, but it 
must retain some substantial portion of the original. And as my 
fellow panelist has already testified, the Framers discussed 
that and agreed. But ordinary English speakers in the 18th 
century or now would not think that a complete destruction of a 
house and the erection of a skyscraper on the same street 
address was an amendment to the house. They would not think 
that a novel with a particular card catalog number was an 
amendment to an earlier math workbook that used to have that 
card catalog number. Complete and unrelated substitutes are not 
``amendments'' in any reasonable sense of the word.
    The Chairman's point in his opening is absolutely critical 
and dispositive. If the Senate only had to wait for a House 
bill--let us even call it a revenue bill; it was not in the 
case that we are talking about in the D.C. Circuit--and if they 
could then constitutionally put any tax or 17 historic taxes in 
a 2,074-page bill, then there is nothing left of the 
Origination Clause. And constructions of constitutional clauses 
that render empty any particular clause that was debated at the 
time of the Framing are an insult to the Framing generation and 
any rationale legal system.
    I am going to summarize here since I think I am over. But 
if questions permit, I would like to go to the ultimate 
question of how we also understand the term ``originate'' in 
the context of the Origination Clause. In the Sissel case, 
though, the Senate healthcare bill with all its historic taxes 
had nothing to do with the House bill for service members that 
lowered their taxes. As such, it was unconstitutional. Thank 
you.
    [The prepared statement of Mr. Gaziano follows:]



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                               __________
    Mr. Franks. Well, thank you, sir. And I will now proceed 
under the 5-minute rule with questions. And we will begin with 
recognizing myself for 5 minutes.
    Mr. Schmitz, I will begin with you. First, I have to say in 
Mr. Onek's testimony in two places, he suggests that if the 
Supreme Court gets involved here somehow, I mean, they have to 
do one of two things. They have to let the bill stand or they 
have to strike it down. If they let it stand, it is the status 
quo. If they strike it down, his suggestion is that somehow 
that would take it farther away from the people, and I find 
that argument fundamentally preposterous because the effect of 
a decision striking this down would be to return to the people 
a greater say over their own taxation. And sometimes I do not 
know how these arguments are made in these impeccable auspices 
that are completely preposterous.
    Mr. Kamenar, according to the Congressional Budget Office, 
the Affordable Care Act represents one of the largest tax 
increases in American history. However, in Mr. Onek's 
testimony, he argued that the Origination Clause did not apply 
to the Affordable Care Act. Could you please explain to the 
Committee as best you can why the Affordable Care Act's 
enactment was both required to satisfy the requires of the 
Origination Clause and, if so, why it did not satisfy those 
requires. I am sorry, this is to Mr. Kamenar. Let me ask that 
question to you.
    Mr. Kamenar. No, it is clear, as I said in my testimony, 
that the Affordable Care Act, which raises over $500 billion, 
is a revenue raising measure. It originated in the Senate. 
Senator Harry Reid even called it the Senate healthcare bill. 
It is on his website. It came over here. And all they did was 
take this tax credit provision, tore off the House bill number, 
and pasted it on the 2,000-page bill. It is clear that it 
originated in the Senate.
    And with respect to Mr. Onek's provision that, well, the 
other half of the clause says it can amend as on any other 
bill. You have to look at that provision in terms of when that 
clause was written. Yes, the House and Senate have the power to 
make its rules, but they cannot make a rule that violates the 
Constitution.
    As we said in our brief, the House of Representatives has 
always recognized the principle that the Senate may not design 
new tax bills. Indeed, when the Framers wrote the Origination 
Clause, it was clear that the scope of permissible amendments, 
as on other bills regardless of whether the bill was or not a 
bill for raising revenue, did not include amendments that were 
not germane to the subject matter of the bill. Therefore, the 
established practice by the founders during the Constitutional 
Convention who penned the words ``the Senate may propose or 
concur with amendments as on other bills''--in short, no non-
germane substitute amendments were permitted in 1787 by the 
unicameral Constitutional Convention. That is what they were 
familiar with.
    And the only reason they allowed that was to take care of 
the British practice where if the Senate could not do anything, 
then they would be locked into a House revenue raising bill 
that might put in something about foreign affairs or other 
commerce, and the Senate could not amend it. So it is basically 
turning the clause upside down on its head the way it is being 
interpreted by the Senate.
    Mr. Franks. Thank you, sir. Mr. Gaziano, it is your 
testimony that if the Senate can do as they did in the 
Affordable Care Act, that the Origination Clause is essentially 
vapor. So my question to you, is the House's concurrence in a 
Senate revenue amendment alone sufficient to satisfy the 
Origination Clause? In other words, is the Origination Clause 
intended to protect the House or is it intended to protect the 
individual liberty of Americans?
    Mr. Gaziano. That is really another central question, Mr. 
Chairman, and I appreciate the chance to elaborate. It is 
ultimately the individual right that the Framers had in mind 
when they required that the people's House originate any tax 
bills. But you also have an interest because you will feel the 
voters' wrath. And as the amicus brief that you and many of 
your fellow Members showed, that was the exact result in 2010 
when this House violated the Origination Clause.
    So ultimately the courts must enforce the individual right 
at issue because it is an individual right. The Chadha case is 
a great example. In the 1970's, Congress passed 160 one-house 
or Committee vetoes because it thought that it needed to check 
the imperial presidency of Nixon and Ford, and the strict 
constitutional requirements of bicameralism and presentment 
were interfering with their desires.
    And their argument, of course, was that the Court should 
not interfere with accommodations between the President and 
Congress over these new innovations. Well, of course the 
Supreme Court struck down those 160 laws, 160 provisions, in 
the Chadha decision in 1983, pointing out that it was not just 
a matter between the political branches. The House or the 
Senate, they could have stopped that, too. They should have.
    As you noted in your opening statement, every Member of 
Congress, every officer of the Federal Government takes an oath 
to defend the Constitution. And again, you all will suffer the 
voters' wrath. That was the plan, so you all have an interest 
in protecting our individual rights. But ultimately, you cannot 
concur in a violation of the Constitution in that way. You can 
change your own rules about Committee structure in Committee 
hearings like this, but you cannot change the constitutional 
rules. And it is ultimately up to the courts, like in the 
Chadha case, to enforce our individual liberties.
    Mr. Franks. Thank you. And I would now recognize Mr. Cohen, 
the Ranking Member, for 5 minutes.
    Mr. Cohen. Thank you. Mr. Onek, are you familiar with the 
Sissel case?
    Mr. Onek. I am indeed. Yes, I am.
    Mr. Cohen. Tell me about the arguments that the folks 
opposing will make.
    Mr. Onek. Well, Mr. Sissel challenges the individual 
mandate. There are other taxes in the bill, of course, but he 
did not have standing to challenge those. So the case is about 
the individual mandate, although as a backdrop you have the 
other taxes. And he said, well, this is a tax, and it did not 
originate in the House. And the District court rejected both 
arguments.
    On the issue of whether it is a tax, the language----
    Mr. Cohen. The District Court rejected both the arguments?
    Mr. Onek. That Mr. Sissel made.
    Mr. Cohen. That Mr. Sissel made. Okay. I am just kind of 
working because Mr. Kamenar, I think, said this is as easy as 
it gets, and they lost in the District Court.
    Mr. Onek. That is correct.
    Mr. Cohen. It is a high burden that he is placing on 
himself, but go ahead. Yes, brief the case.
    Mr. Kamenar. The judge was wrong.
    Mr. Onek. And what the Court said is, and what everybody 
knows, the individual mandate is not for the purpose of raising 
revenue. In fact, the government would be delighted if it did 
not raise a dime, if every person bought insurance, in which 
case nobody would have to pay the mandate. Nobody.
    Everybody knows that the purpose of the mandate is to 
induce people, and particularly healthier people, to purchase 
healthcare insurance. The government would have been very happy 
if it did not get a dime. I think the government would have 
been perfectly happy if it could have taken all the money and 
given it to charity. The government does not care about the 
revenue. What it wants is for people, and particularly healthy 
people, to purchase health insurance.
    The second aspect is the aspect I think we could perhaps 
talk more about. What kind of amendments can the Senate make? 
And as I said earlier, the bill says the Senate can propose 
amendments as on all other bills. There is nothing in the 
Constitution which talks about germaneness or says that the 
Senate has to have a germane bill. And indeed on many occasions 
the Senate and the House have agreed to amendments which were 
not germane on many, many occasions throughout history for at 
least 150 years.
    So if the Constitution says there can be amendments, if 
there is no requirement that there be germane amendments, how 
can the courts intervene? The separation of powers principles 
says the courts cannot intervene unless they have some standard 
to intervene on. And, in addition, we have a specific clause of 
the Constitution, which people here I am sure care a great deal 
about. Article 1, Section 5 says ``Each house shall determine 
the rules of its proceedings,'' and, in my view, that includes 
rules and practices with respect to whether the Senate's bill 
has to be germane or not germane, or whether the House has or 
does not have the obligation to accept a germane amendment. 
That is up to the House. It is up to the Senate.
    Now, the House has a blue slip procedure. The House, for 
those in the audience, the House attaches a blue slip of paper, 
which is why it is called a blue slip, on a resolution and says 
to the Senate what you have done violates the Origination 
Clause. We reject it. We return it. Goodbye. The House can 
always do that. It did not do it here, but it can always do it. 
So it is not as if the Court----
    And by the way, once the House does it, there is no review 
by the courts. Nobody can go to the courts and say, oh, my 
gosh, the House rejected this immigration bill, this bill that 
I happen to approve of, by the way. It rejects this immigration 
bill that would improve the lives of millions of Americans. Let 
us challenge it. The Court would say you have no standing, get 
out of here.
    What the House does is unreviewable. And what I am saying 
is what the Senate does, the amendments it makes as on all 
other bills, should not and is not reviewable by the Federal 
courts.
    Mr. Cohen. Mr. Onek, let me ask you this, too. If a bill is 
not primarily for revenue purposes, it is not for raising 
revenue, then the courts have said it is okay. What was the 
primary purpose of the Affordable Care Act?
    Mr. Onek. Well, the primary purpose of the Affordable Care 
Act is to provide health insurance, security, and better 
healthcare to all Americans.
    Mr. Cohen. Save people's lives.
    Mr. Onek. That certainly is a purpose.
    Mr. Cohen. Lives are in the balance.
    Mr. Onek. That is correct. And the individual mandate has a 
sort of narrow primary purpose, which is to induce Americans to 
purchase the insurance, and everybody knows that purpose. There 
is nobody here who has not at one time or another given a 
speech against or for the mandate. They all know what the 
purpose is, but somehow we are expecting the courts to ignore 
that. Well, the District Court did not ignore it, correctly.
    Mr. Cohen. Thank you, sir.
    Mr. Onek. Thank you.
    Mr. Franks. I am going to go ahead and propose a new rule 
of the House of Representatives since we have total latitude in 
that regard that we make this Committee the absolute lawmaking 
body of the world, and it is unreviewable at any time. And with 
that, I am going to recognize Mr. Gohmert, who is someone who 
recognized this situation very early on, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman, and I appreciate the 
witnesses being here. And we had filed a bill last Congress. 
But I am curious, if we passed a bill in the House that says it 
is the sense of Congress that the Affordable Care Act, and it 
is really hard for me to use those words ``affordable care 
act'' because it has put constituents of mine out of work. It 
has taken some from full time to part time. It has taken away 
the insurance they liked. It has taken away their doctors they 
like. So it is anything but affordable. Nonetheless, we will 
use the misnomer that was used to name the bill.
    If we say in our resolution and it passed that it is the 
sense of the House of Representatives that the Affordable Care 
Act did not originate in the House, is that not something that 
could be taken up and considered with judicial notice at any 
level of the proceedings?
    Mr. Onek. No. The answer is flatly no because the courts 
never look at post-hoc legislative history.
    Mr. Gohmert. All right. But----
    Mr. Kamenar. I disagree----
    Mr. Gohmert. All right. Let us hear your----
    Mr. Kamenar [continuing]. Because I argued one case that 
did.
    Mr. Gaziano. It would not be part of the legislative 
history of the act, so it would not be. But I do not think that 
it would be valuable for that purpose. It would be valuable for 
a very different purpose, and they ought to certainly pay 
attention to it. And that is because it would discourage the 
Court from punting its responsibility and saying this is a 
political question.
    Now, the Supreme Court in Munoz-Flores said they cannot do 
that anyway. And so, that is the more important reason why I 
think Mr. Onek's wish that the courts not examine this horrible 
act will fail.
    Mr. Gohmert. Okay. But let me hear from----
    Mr. Gaziano. The reason that they would care, in 
administrative law, if two agencies disagree on a matter, they 
do not defer to one or the other.
    Mr. Gohmert. Right.
    Mr. Gaziano. And so, it would be some proof that your 
reading of the rules is different than what happened in the 
last Congress.
    Mr. Gohmert. That there is a question of fact in this. So I 
was really surprised as a former judge and chief justice, I am 
just shocked that anybody that claims to have knowledge of the 
law would have such a quick answer of no. But, Mr. Kamenar----
    Mr. Kamenar. Yes. The Court would certainly look at a 
resolution passed by the House on this for this important 
purpose. Whether or not the members of the House could bring 
the case themselves and have standing, that might, in fact, 
give them additional what is called legislative standing. But 
now that we have a plantiff that is always with standing. By 
having this resolution passed, it gives the Court more impetus 
to look at this because now it is an institutional interest by 
the House that the Court cannot just simply just say, oh, this 
is just some plaintiff. Why should that plaintiff worry about 
the House's bill? They basically relented, et cetera.
    So the blue slip procedure is an important procedure for 
the House to use. And Mr. Onek asked, well, why was it not 
used? Well, he was the counsel to Speaker Pelosi at the time, 
and he knows very well. The bill came over from the Senate. 
Speaker Pelosi said we have to pass the bill----
    Mr. Gohmert. Well, let me give you a little help there. 
Actually what had happened, the House had originated a bill----
    Mr. Kamenar. That is correct, a different bill.
    Mr. Gohmert [continuing]. An Obamacare bill, and it passed 
the House under Speaker Pelosi's leadership. And I have 
senators tell me that actually they were told that, look, we 
are passing the Senate bill, but everybody knows this is not 
going to be the final bill, so we know you have some 
objections. Do not worry about it. Just vote for it, and we 
will clean it up later. And then, Scott Brown got elected so 
there was not going to be a chance for the Senate to vote for 
the House bill that originated in the House. So the only way 
they could do it was to conspire to subvert the Constitution.
    But my time is running out, and I have one more question to 
ask. Here is the original H.R. 3590, ``Be it enacted by the 
Senate and House of Representatives of the United States of 
America and Congress assembled.'' That is the enactment clause. 
And then it talks about the Service Members Ownership Tax Act 
of 2009. This is the bill. These are the topics that, this 
three-page bill. And then this starts by saying strike out all 
after the enacting clause. Tell me where in this bill any of 
these topics in this bill were ever found. Any witness that 
cares to tackle that, point me out anything in the new bill 
that was in the old bill. Mr. Schmitz?
    Mr. Schmitz. I cannot speak necessarily to some of this, 
but I can say on the history of the clause, that sort of 
amending procedure was never contemplated by the public when 
they signed as on other bills when they ratified it. I can find 
the entire documentary history of the ratification of the 
Constitution where a member in the Virginia legislature, an 
Anti-Federalist, or in the debates contemplated the fact that 
the Senate might abuse the amending power by trying to turn it 
into an origination power.
    And luckily, during that debate Madison just so happened to 
be there. And he responded to the criticism that the Senate 
might abuse this amending power and turn it into an origination 
power. And he said to the criticizing member, there is an 
ambiguity in the clause, and he said somewhat dismissively, he 
said, ``the first half of the clause is sufficiently expressed 
as to exclude all doubt,'' i.e., all revenue raising bills will 
originate in the House of Representatives. That was the one 
time this was brought up among 34 different instances in the 
debates.
    I researched it, and when it was brought up, Madison 
himself, who called this power the most complete and effectual 
power with which any Constitution can arm the immediate 
representatives of the people for obtaining a redress of 
grievances, he dismissed it and said the first half of the 
clause is sufficiently expressed to exclude all doubt. The 
ratifying public had no idea. They would never have expected 
that that amending procedure would have occurred and that they 
were consenting to that. And furthermore, it was illegal under 
the Continental Congress since 1781.
    Mr. Franks. Thank you, Mr. Gohmert. Thank you, Mr. Schmitz.
    Mr. Gohmert. Mr. Chairman, I take it by the lack of the 
witnesses to be able to point out any topic in here that 
amended anything in our little 3590 bill, there is no such 
amending topic. And I yield back.
    Mr. Franks. Thank you, sir. And I now recognize Mr. Nadler 
for 5 minutes. Sorry, I did not know which of you came in 
first.
    Mr. Cohen. Well, he is the Ranking Member emeritus.
    Mr. Franks. The Ranking Member emeritus.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, this 
frivolous hearing is just another misguided attempt by the 
majority to undermine and discredit the Affordable Care Act. 
Despite the best efforts to sabotage it by the majority across 
this country, implementation of the law carries on. And my 
friends on the other side of the aisle can no longer ignore the 
great good that the Affordable Care Act is doing for the 
American people.
    The uninsured rate has now dropped to 15.6 percent. 8 
million Americans have enrolled in comprehensive and affordable 
private health insurance coverage through the Federal exchange. 
5 million more Americans have enrolled in private ACA compliant 
insurance plans. 3 million young adults gained coverage by 
being able to stay on their parents' plans. 3 million more 
people enrolled in Medicare and CHIP as of February compared to 
before the marketplaces opened. 129 million Americans with pre-
existing health conditions, including up to 17 million 
children, no longer have to worry about being denied coverage 
or charged higher premiums due to their health status. 108 
million Americans have received free preventive services, and 
7.9 million seniors in the donut hole have already saved $9.9 
billion in their prescription drugs, an average savings of 
$1,265 per person.
    So while I certainly appreciate as an academic exercise 
this abstruse lesson in the history of the Origination Clause, 
I speak for the millions of Americans benefitting from the law 
today in urging my colleagues to move on and address the real 
issues facing this country.
    Constitutionally, this is a frivolous hearing. The three 
witnesses for the majority have cited no court cases. We hear 
very interesting testimony, and I am going to read more about 
the Origination Clause in the Constitutional Convention and the 
debates in the Federalist. I find it fascinating. But 
essentially, and let me ask Mr. Onek if I am right in saying 
that the three witnesses of the majority are asking us to 
ignore two centuries of Supreme Court rulings and precedents on 
these questions, all of which point to the fact that there is 
simply no real constitutional question here. Mr. Kamenar said 
that the judge was wrong. But the judge was ruling pursuant to 
every single case that has been decided that I am aware of in 
the last two centuries. Am I correct, Mr. Onek?
    Mr. Onek. That is correct. And Mr. Schmitz said, well, the 
Framers wanted to cover the raising of revenues. There was no 
primary purpose, nothing about incidental revenues. But of 
course, the three leading Supreme Court cases on that 
particular point have gone precisely the other way. They have 
said that certain taxes, which are taxes under the taxing 
power, are nevertheless not taxes for purposes of raising 
revenue within the meaning of the Origination Clause.
    Mr. Nadler. And that is well established. It is also well 
established that the Senate can amend to its heart content, and 
that there is no germaneness requirement, correct, Mr. Onek?
    Mr. Onek. I believe that is absolutely correct.
    Mr. Nadler. And despite the histrionics by Mr. Gohmert, is 
it not correct that the precise manner of amending a House bill 
used by the Senate has been used many times before and upheld 
by the courts?
    Mr. Onek. It has been used many times before----
    Mr. Gohmert. Nothing like this.
    Mr. Onek. It has been approved in other cases. There is no 
Supreme Court that specifically has looked at a situation like 
this. But I do think it is very, very clear when a 
constitutional provision says that the Senate can make 
amendments as on all other bills, then that is the answer.
    Mr. Gohmert lifts up the big bill, but, in fact, if this 
was not a revenue bill, if this was some other kind of bill, 
the Senate could do it and does do it. And that is what the 
Constitution says, ``as on other bills.'' There is nothing 
wrong with substituting and amending.
    Mr. Nadler. Thank you. Let me ask either Mr. Schmitz, Mr. 
Kamenar, or Gaziano, have the Supreme Court and the Congress 
been simply misinterpreting the Origination Clause for the last 
200 years? Should courts and Congress simply ignore more than a 
century of precedent based on your interpretations of 
constitutional history?
    Mr. Gaziano. The Supreme Court's precedents are very clear 
that this is unconstitutional. The Supreme Court and no court 
has ever upheld the ``gut-and-substitute'' provision, nor could 
they ever. And the Supreme Court----
    Mr. Nadler. Excuse me. Wait a minute. You said the Supreme 
Court had made clear this is unconstitutional. When has it done 
so?
    Mr. Gaziano. This type of amendment is unconstitutional. 
And in all of its decisions, it has explained that this type of 
non-germane amendment. And by the way, all of our testimony is 
full of all the cases that, Supreme Court and otherwise, that 
say that an amendment must be germane.
    Mr. Nadler. Basically germane.
    Mr. Gaziano. But a non-germane amendment is 
unconstitutional.
    Mr. Nadler. Mr. Onek, would you comment on the germaneness? 
In other words, Mr. Gaziano is saying that the Supreme Court 
has required germaneness for amendments.
    Voice. They did require germaneness in----
    Mr. Nadler. Mr. Onek, is that correct?
    Mr. Onek. No. There is one case that mentioned it in 
passing.
    Mr. Gaziano. The most recent one in----
    Mr. Nadler. Excuse me. I asked Mr. Onek. Go ahead.
    Mr. Onek. No, they have not required germaneness, and how 
could they constitutionally?
    Mr. Nadler. Because?
    Mr. Onek. Article 1, Section 5 says the House and Senate 
make their own rules. The Supreme Court cannot or the courts 
cannot tell the Senate whether it has to have germane rules or 
not. They cannot tell the House of Representatives whether they 
have to have germane----
    Mr. Nadler. Thank you. Let me before my time expires say 
one sentence. I think that this is frivolous. I think the 
arguments are frivolous, but the Court will decide. Mr. Sissel 
is in court. Mr. Kamenar, I think, is representing him. That is 
the proper way to do it. The courts will decide. And we should 
in Congress be seeking to do the business of the American 
people instead of holding frivolous hearings and commenting on 
court decisions that are not going anywhere. I yield back.
    Mr. Franks. Thank you. You know, I guess that my conclusion 
here is if the Senate can do what they did, then we can tear 
the Origination Clause out of the Constitution. And if it is 
frivolous for the Constitution Committee of the House of 
Representatives tries to prevent that, then count me frivolous. 
And with that, I would recognize Mr. King for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I appreciate you holding 
this hearing, and the frivolous remark is troubling to me as 
well. I was thinking about the language that comes out of the 
other side of the aisle from us and how they tend to shape 
themselves in defense of our President no matter what kind of a 
thing he might assert.
    And I remember the statement he made to the public and 
reiterated in his last State of the Union Address when he said 
I have a pen and I have a cell phone, and if Congress does not 
act, I will. It is not so much what he said. It was all the 
Democrats stood up and applauded the constitutional authority 
that is granted to them in Article 1 being usurped by the 
President of the United States right in the very front of them 
in a State of the Union Address. So I am not very moved by the 
constitutional arguments that I hear from my colleagues these 
days having seen that demonstration of them leading the 
standing ovations.
    However, I would turn to Mr. Onek, and I note some of the 
things in your testimony. The primary purpose of the individual 
mandate is not to raise revenue. I was also listening to the 
President in the passage debate period of time of Obamacare, 
and I, like, Mr. Gohmert have a lot of trouble saying 
``affordable care act.'' I think that is a misnomer, and I have 
said that George Washington could not have uttered those words.
    But the primary purpose of it, as you said, was so that 
individuals will buy insurance. The President said I will not 
sign a bill that increases the deficit by one dime. So this 
needed to match the CBO score. It needed to match the actuarial 
figures. If it raised one dime, the fine, the penalty, the tax 
for the individual mandate, then that was a qualifier for the 
President to sign the bill. And do you have an estimate of how 
much revenue was raised or is projected to be raised, Mr. Onek?
    Mr. Onek. You mean by the mandate?
    Mr. King. Yes, by the individual mandate.
    Mr. Onek. Well, in fact, although I do not think it is 
relevant, it does not raise revenue. It loses money. Last 
March----
    Mr. King. Wait a minute. We are talking about revenue. We 
are not talking about a balance sheet here. And so, if you are 
going to force people to pay an IRS tax bill, that is raising 
revenue. I think we have to agree with that here.
    Mr. Onek. I believe----
    Mr. King. And so, can we agree that it raises more than 
dime?
    Mr. Onek. It does indeed, but, in fact----
    Mr. King. And so, we would agree that that helped fill the 
score sheet up so that the President could keep his word this 
time.
    Mr. Onek. No.
    Mr. King. Well, okay. I probably got in dangerous territory 
when I said the President would keep his word.
    Let me move on. Each House shall determine the rules of its 
proceedings. And your statement is that the blue slip is not 
reviewable by the courts because each House determines the 
rules of its proceedings. Now, what is your resolution of this 
when the House and the Senate get into an impasse? Who then 
resolves that?
    Mr. Onek. It does not. If the House issues a blue slip, 
then the bill does not pass, and the people ultimately judge 
that decision.
    Mr. King. If the House determines by the rules of its 
proceedings that we simply, let us say, suspend the actions of 
the Senate and operate on our own. There are a number of 
hypotheticals. They are all in Mr. Gaziano's head. I heard them 
all stream out here.
    I will turn to you, Mr. Gaziano. Can you imagine a scenario 
by which there would be a deadlock between the House and the 
Senate because the rules of the proceedings were in conflict 
with each other? How then would that be resolved if the courts 
cannot hear the case? And your testimony was that the Congress 
and the courts should be involved.
    Mr. Gaziano. Absolutely. And my bigger concern is what if 
the House is just in a particular mood and goes along with it? 
What if the House passes a rule that deems a majority to be 
two-thirds for overriding of a presidential veto? The House 
wants to override that veto. We all agree the courts would have 
to resolve that.
    What if the House passed 160 one-house vetoes, and they 
were just loving it? Well, actually they did do that. And the 
Supreme Court said, your rules that we cannot review are your 
internal ones, but not the constitutional rules. The two-
thirds-vote requirements, the Origination Clause, the 
Bicameralism and Presentment Clause, those are constitutional. 
The courts have to enforce those.
    Mr. King. So your testimony is both the courts and the 
Congress would be engaged in----
    Mr. Gaziano. Well, the Congress, if it does its job--I 
think Mr. Onek is right about one thing. If the House does its 
job, it will never ever create a case of a bill passed 
unconstitutionally. But the courts are around for bills that 
are unconstitutional. So the Obamacare act, for example, this 
body's desire to pass the law before you read it, that was just 
an illegal procedure. And the House cannot acquiesce in a 
violation of the Constitution of that nature.
    Mr. King. Thank you, Mr. Gaziano. Mr. Chairman, I 
appreciate it and yield back the balance of my time.
    Mr. Franks. I thank the gentleman, and I will recognize Mr. 
Johnson for 5 minutes.
    Mr. Johnson. Thank you. Mr. Onek is a graduate of the 
Harvard University, the Yale Law School. When he came out of 
law school, he clerked for a United States Supreme Court 
justice. He has served in high positions including the counsel 
to the President, I believe. And he has served in the 
legislative branch as a senior counsel to the Speaker of the 
House. Those are all high-level positions. Would you agree, Mr. 
Schmitz, that it would be in error to characterize the legal 
position of Mr. Onek's on this particular matter as 
preposterous? Would you disagree with that?
    Mr. Schmitz. No, not based on what you said, Congressman.
    Mr. Johnson. So in other words, his position is not 
preposterous, correct?
    Mr. Schmitz. Not based off his past occupation.
    Mr. Johnson. And would you agree with that, Mr. Kamenar? 
Would you agree that his position is not preposterous, yes or 
no?
    Mr. Kamenar. It is preposterous under the Constitution.
    Mr. Johnson. All right. Okay.
    Mr. Kamenar. We are doing a reverse ad hominem.
    Mr. Johnson. How about you, Mr. Gaziano?
    Mr. Gaziano. Much of what he says is very interesting, but 
the important parts are very preposterous.
    Mr. Johnson. Preposterous, okay. All right. So we have got 
some guys who probably could not carry Mr. Onek's briefcase to 
the U.S. Supreme Court who say that his position is 
preposterous. And I think that is preposterous, and I salute 
you, Mr. Schmitz
    Mr. Gaziano. If I could clarify----
    Mr. Johnson. I have got the floor, sir. Thank you. Now, 
listen, Mr. Kamenar, you said that Justice Roberts issued a 
novel opinion on the constitutionality of the Affordable Care 
Act because he found that it was a constitutional use of 
legislative authority under the taxing authority.
    Mr. Kamenar. Correct.
    Mr. Johnson. Not the----
    Mr. Kamenar [continuing]. Commerce clause.
    Mr. Johnson [continuing]. Commerce clause. But now you are 
arguing that this is a revenue raising bill, which is a part of 
the taxing authority.
    Mr. Kamenar. That is correct.
    Mr. Johnson. Okay. Was there any issue raised during the 
legislative debate, which was at least a year--which was longer 
than a year--on the Affordable Care Act before it passed. Were 
there any senators on your side of the aisle who argued that 
the Affordable Care Act under the way that it was presented 
back to the House was a non-germane amendment?
    Mr. Kamenar. Was what kind of an amendment?
    Mr. Johnson. Was the amendment of the House bill sent to 
the Senate and then sent back to the House as the Affordable 
Care Act----
    Mr. Kamenar. Right. Right.
    Mr. Johnson [continuing]. Were there any objections raised 
by Republicans senators about germaneness?
    Mr. Kamenar. Well, they raised objections by not voting for 
it.
    Mr. Johnson. Well, did they actually raise the objection?
    Mr. Kamenar. I am not aware of it, but----
    Mr. Johnson. All right. Now, let me ask this question. Did 
anyone in the House of Representatives raise the germaneness 
issue?
    Mr. Gaziano. It was not thought to be a tax. The Senate 
said it was a penalty. The President said it was a penalty. Why 
would the House blue slip something that everyone thought was a 
penalty? I submit the Supreme Court still got it wrong. Chief 
Justice Roberts still got it wrong, but we are faced with the 
fact that now that is the opinion of the Supreme Court.
    Mr. Johnson. Let me ask you this. Let me ask you this then. 
How would that wrongness be any more preposterous than failing 
to find that Congress had the power under its ability to 
regulate interstate commerce to legislate the Affordable Care 
Act? How is it any more preposterous than that?
    Mr. Gaziano. Well, the fact is it is either 
unconstitutional for one reason or it is unconstitutional for 
another. And given that the Supreme Court said it is only 
constitutional if it is a tax, we now have to do determine 
whether it is the type of tax that is constitutional or not, 
and it just is not.
    Mr. Johnson. Last but not least, should the Court be the 
arbiter or whether or not an amendment to a House bill is 
germane or not, or should not that be the power of the 
legislative branch to do? Mr. Onek?
    Mr. Onek. I believe that clearly under the separation of 
powers doctrine and, more specifically, under Article 1, 
Section 5, the Senate and the House should make that decision. 
The House could have blue slipped this bill. Mr. Gaziano says, 
oh, they did not know the mandate was a tax. But, of course, in 
their briefs they say there were a hundred taxes in the bill or 
whatever number. So there were plenty of other provisions they 
could have said were taxes. But they did not blue slip the 
bill.
    Mr. Kamenar. How can a minority blue slip?
    Mr. Johnson. For me it is just simply another opportunity 
that the Republicans are taking to try to do away with the 
Affordable Care Act. And I will relinquish the balance of my 
time. Thank you, Mr. Chairman.
    Mr. Franks. Thank you, sir. Just for the record, the 
Origination Clause that has been talked about here today was 
originally to make sure that the taxing power was closest to 
the people. That was its purpose. And if the Supreme Court 
enforces it and upholds that, it will return that taxing power 
closer to the people. My comments were that Mr. Onek's 
testimony was that if the Court got involved and did that, that 
it would take it away from the people. That is what I found 
preposterous, and I do not have the vocabulary to think of a 
word that more accurately reflects my conviction. So I stand by 
that.
    And with that, I would now recognize Mr. DeSantis for 5 
minutes.
    Mr. DeSantis. Thank you, Mr. Chairman. Thanks for the 
witnesses. Mr. Onek, when you started your testimony, you had 
made reference to the reason why the Senate had not sent over 
the Gang of Eight immigration bill. So do you acknowledge that 
the Gang of Eight immigration bill, because it has revenue 
raising measures, violates the Origination Clause of the 
Constitution?
    Mr. Onek. I am not an expert on the bill, so I do not know 
that. But at least it is my understanding that there is a 
concern in the Senate, and, therefore, that is why they have 
not sent it over. And based on that, it demonstrates that the 
Origination Clause lives. It lives.
    Mr. King has left, but he is an expert on immigration. I am 
sure that if the bill came over, he would be leading the fight 
for the blue slip, and it shows the Origination Clause is not a 
dead letter. It lives. That is my point.
    Mr. DeSantis. All right. So bottom line is if there are 
taxes in there, you would acknowledge that that is an 
Origination Clause problem.
    Mr. Onek. I obviously would have to look at the particular 
taxes and so on, but in general if the Senate passes a bill 
with tax provisions----
    Mr. DeSantis. I think there are, like, tens of billions of 
dollars of different revenue.
    Mr. Onek [continuing]. That creates a----
    Mr. DeSantis. All right. Well, I just wanted to see that 
because, you know, obviously you were invited by the minority, 
but I think when those witnesses are able to acknowledge maybe 
some problems with some of the political platforms of those who 
brought them, I think it gives them a little more credibility.
    Now, if the House were to pass a similar bill to what 
happened in 2009, say, a tax credit for veterans bill, could 
the Senate strip that entirely and substitute a 20 percent 
national vet tax, and would that be constitutional or would 
that violate the Origination Clause? And I will let you go, Mr. 
Onek, but any witness. I mean, if you could kind of give me 
your take on that.
    Mr. Kamenar. I do not think it would, of course, but Mr. 
Onek said it would because they can amend as on any other 
bills. So your example, he would agree that you could take any 
House bill that raises a dime and throw in a $500 billion tax 
bill, a corporate tax, inheritance tax, Obamacare tax, 
whatever. That is the logic of their argument.
    Mr. Onek. And the logic is that the courts cannot 
intervene. Nothing, of course, would stop the House from simply 
not passing the Senate bill. It does not even need a blue slip. 
It can just not pass it. The House does not pass lots of Senate 
bills and vice versa. Or, more specifically, it could use the 
blue slip----
    Mr. DeSantis. But if it is controlled by the same party----
    Mr. Gaziano. But in every one of Mr. Onek's examples is as 
if the House did its job. The courts could not act, and I agree 
with that. But the question we have here is what if the House 
is controlled by a party that is interested in violating the 
Constitution--let us just take that as a hypothetical--and 
accepts a 2,074-page bill that was supposedly a complete ``gut-
and-strip'' of its six-page unrelated bill, what happens then? 
Then of course the Supreme Court has said that the courts are 
obligated to take that case.
    In Munoz-Flores in 1990--I should say earlier in Flint v. 
Stone--of course the Supreme Court said there is a germaneness 
requirement because the Origination Clause would be empty if 
there was no Origination Clause. It would be a dead letter if 
there was no germaneness test.
    And so, in Munoz-Flores, the Supreme Court said we conclude 
initially that this case does not present a political question, 
and, therefore, reject the government's argument that the case 
is not justiciable. Then if they took your hypothetical, sir, 
they would have to strike it down because there was nothing in 
the original bill that was remotely germane to a 20 percent 
back tax.
    Mr. DeSantis. And I think part of the problem is that a lot 
of folks in this body I have found, and I was not here for the 
Obamacare debate, you know, when it comes to the Constitution 
they basically say, well, look, you know, we do what we want in 
Congress until the courts stop us. So they are kind of having 
it both ways in some of this, that they do not have an 
independent duty. I think we have an independent duty to follow 
the Constitution. If we have a bill that violates the 
Constitution, we are obligated to vote no on that.
    Now, I think what happened here, and my response to Mr. 
Onek would be, the House did not have to pass Obamacare. I 
mean, after all there was the Senate bill. But the political 
context is very different. I mean, it originated a different 
bill in the House--and I was not in Congress then, but I was 
following this--that did not have the votes in the Senate. So 
then the Senate did their own bill, 60 votes, Christmas Eve, 
got something through. And they were going to try to merge them 
somehow and come up with something.
    But Scott Brown got elected in Massachusetts. Wow. I mean, 
one of the most liberal States in the country, they elect a 
Republican to the U.S. Senate to fill Ted Kennedy's seat 
because they did not like what they were seeing with what was 
going on with what would soon be Obamacare. So the House, and 
people like Nancy Pelosi----
    I mean, look, this is a progressive thing that they wanted 
for decades. And so they are left with you either take the 
Senate bill or you lose. And the Origination Clause, I do not 
think that was even something they were worried about in the 
slightest. I think it was we have this here. We are going to 
pass it. Of course, they used budget reconciliation in the 
Senate to get the amendments through.
    So the Origination Clause was just given shrift by the 
folks in the House. They chose doing this based on the politics 
of the moment. I think it was the wrong decision, but I do not 
think we had the lively debate that we should have. And I yield 
back.
    Mr. Franks. Well, this has been certainly a very 
interesting discussion, to say the least. And I want to thank 
all of the Committee Members for attending, and I want to thank 
all of the panelists. Mr. Onek, regardless of my disagreement 
with you, sir, I genuinely respect and appreciate your presence 
here today.
    Mr. Onek. Thank you very much.
    Mr. Franks. And with that, it does conclude today's 
hearing. And again, I thank you all for attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    And I do thank the witnesses again and thank the Members 
and the audience. And the hearing is adjourned.
    Voice. Thank you.
    [Whereupon, at 11:31 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
Congress from the State of Tennessee, and Ranking Member, Subcommittee 
                 on the Constitution and Civil Justice
    This is my first hearing as Ranking Member of the Subcommittee on 
the Constitution and Civil Justice. I am honored to serve as Ranking 
Member and look forward to working with Chairman Trent Franks, who I 
had the pleasure of working with back in the 111th Congress when I was 
chairman of the Subcommittee on Commercial and Administrative Law and 
he was the Ranking Member.
    Today's hearing is titled ``The Original Meaning of the Origination 
Clause.'' We can all agree that the Origination Clause plays an 
important role in ensuring that the House of Representatives--the 
``People's House''--has the first say when it comes to bills related to 
revenue. As the chamber that most directly represents the people, this 
is as it should be.
    But, we must also remember that the Constitution reflects a series 
of political compromises made by the Framers to ensure that the 
competing interests of various states and regions were addressed.
    Foremost among these is the makeup of Congress itself. The 
structure of the House, with its proportional representation and two-
year terms, favors states with large populations. Small-state 
interests, meanwhile, are protected by the structure of the Senate, 
where all states have equal representation regardless of size.
    The Origination Clause, as currently drafted, reflects this 
balancing of interests. While giving the House exclusive authority to 
originate ``Bills for raising Revenue,'' the clause also gives the 
Senate broad leeway to ``propose or concur in amendments as on other 
Bills.''
    This balance has largely worked. Through more than a century of 
judicial and congressional interpretation and enforcement, the House's 
prerogative to originate not only revenue-raising bills, but all bills 
relating to revenue, is clearly established. At the same time, the 
Senate's broad authority to amend any revenue bill is also clearly 
established.
    Some observers, however, believe that the Origination Clause is in 
peril. In particular, these observers, including some of our witnesses 
today, allege that Congress did an end-run around the Origination 
Clause when it passed the Patient Protection and Affordable Care Act 
and, in particular, its ``individual mandate'' and the related ``shared 
responsibility payment.''
    As will be made more evident during our discussion today, neither 
the facts nor the law support that assertion. Supreme Court precedent 
and congressional practice make clear that a bill with a primarily non-
revenue purpose is not a bill ``for raising Revenue'' within the 
Origination Clause's meaning, even if the bill raises revenue, so long 
as the revenue supports a government program.
    Here, as the Supreme Court concluded in 2012 in National Federation 
of Independent Business v. Sebelius, the Affordable Care Act had the 
primary purpose of, among other things, expanding health insurance 
coverage.
    And the individual mandate and shared responsibility payment was 
the key to meeting this goal.
    I note that today's hearing is taking place a little over a week 
before the U.S. Court of Appeals for the District of Columbia Circuit 
hears oral arguments in Sissel v. HHS, where the plaintiff challenges 
the constitutionality of the Affordable Care Act on Origination Clause 
grounds. I question whether it is the best use of resources for this 
Subcommittee to be holding this hearing on a matter that is still 
pending before the federal courts.
    Nonetheless, I look forward to our discussion and I thank the 
witnesses for their appearance today.





                                

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    Although the official title of today's hearing is ``The Original 
Meaning of the Origination Clause,'' the real objective of this hearing 
is to provide yet another opportunity for opponents of the Patient 
Protection and Affordable Care Act to attack this duly enacted law.
    In fact, there already have been 54 attempts in the House to repeal 
the Act. This is in addition to the numerous hearings that various 
committees in this body have held on the same subject matter.
    Today's hearing, which attacks the Act's individual mandate and 
related ``shared responsibility payment'' provisions on the basis that 
they violate the Constitution's Origination Clause, is a particularly 
fruitless undertaking for several reasons.
    For example, let's begin with the fact that the Constitution's 
Origination Clause does not even apply to the Act.
    The Clause requires that ``Bills for raising Revenue shall be 
originated in the House of Representatives; but the Senate may propose 
or concur with amendments as on other Bills.''
    But based on more than a century of judicial and Congressional 
precedents, it is absolutely clear that the Act's individual mandate 
requirement presents no Origination Clause problem.
    This is because measures with primarily non-revenue purposes--even 
if they contain provisions that would raise revenue--simply are not 
``Bills for raising Revenue'' within the meaning of the Clause, as the 
Supreme Court has made abundantly clear.
    As recently as its 2012 decision upholding the constitutionality of 
the Act in National Federation of Independent Business v. Sebelius, the 
Court specifically held that the Act's individual mandate was not a 
``Bill[] for raising Revenue'' under the Origination Clause.
    It reasoned that Congress' taxing power ``is often, very often, 
applied for other purposes, than revenue.'' The Court found that that 
the primary purpose of the Act's individual mandate and of the Act 
generally was, among other things, to expand health insurance coverage.
    And, even if we were to assume that the Origination Clause somehow 
applies to the Affordable Care Act, the measure does not violate the 
Clause's requirements.
    Even a cursory review of the legislative history of the Act 
establishes this fact.
    The House measure that the Senate amended to add the text of its 
version of the Affordable Care Act was a revenue bill. As explicitly 
authorized by the Origination Clause, the Senate then had broad 
authority to replace the underlying House-originated revenue bill with 
its measure.
    Not surprisingly, the District Court rejected an attack on the Act 
for purportedly violating the Origination Clause for these very same 
reasons.
    Finally, rather than wasting time on yet futile another attack 
against the Affordable Care Act, this Committee should be focusing on 
the real, not imagined, problems that Americans desperately want 
addressed.
    These include:

          fixing our Nation's broken immigration system;

          solving the problem of crushing student loan that 
        results in virtual debt peonage for our young people; and

          creating more job opportunities by strengthening the 
        competitiveness of our Nation's businesses.

    Instead, we will spend this morning addressing phantom issues 
created by the Act's opponents in an effort to derail the law, this 
time under the guise of constitutional analysis.
    I again urge my colleagues on the other side of the aisle to spend 
the remaining time left in this Congress to focus on real issues.

                                 [all]