The Founders’ Origination Clause (and Implications for the Affordable Care Act)

Abstract

This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on founding-era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power.

For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated “tax.” The Article concludes that this “tax” was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added PPACA’s regulatory provisions and appropriations were outside the Senate’s amendment power.

Keywords: Constitution, Origination Clause, original meaning, original understanding, original intent, Senate amendment, Affordable Care Act, Patient Protection and Affordable Care Act, ACA, PPACA, Obamacare, bill for raising revenue

JEL Classification: K1, K10, K30