Sissel v. United States Department of Health & Human Services

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED: AUGUST 7, 2015

No. 13-5202

MATT SISSEL,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01263)

On Petition for Rehearing En Banc

______

Before: GARLAND, Chief Judge; HENDERSON*, ROGERS,

TATEL, BROWN*, GRIFFITH*, KAVANAUGH*, SRINIVASAN,

MILLETT, PILLARD and WILKINS, Circuit Judges

ORDER

Appellant’s petition for rehearing en banc, the response

thereto, and the briefs of amici curiae in support of appellant

were circulated to the full court, and a vote was requested.

Thereafter a majority of the judges of the court in regular, active

2

service did not vote in favor of the petition. Upon consideration

of the foregoing, it is

ORDERED that the petition be denied.

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken Meadows

Deputy Clerk

* Circuit Judges Henderson, Brown, Griffith, and Kavanaugh

would grant the petition.

A statement by Circuit Judges Rogers, Pillard, and Wilkins,

concurring in the denial of rehearing en banc, is attached.

A statement by Circuit Judge Kavanaugh, with whom Circuit

Judges Henderson, Brown, and Griffith join, dissenting from the

denial of rehearing en banc, is attached.

ROGERS, PILLARD, AND WILKINS, Circuit Judges,

concurring in the denial of rehearing en banc: A majority of

the court has voted to deny the petition for en banc rehearing

of this case. A dissenting statement, however, charges the

original panel opinion with undermining individual liberty by

upsetting the balance of power between the two Houses of

Congress. See Dissent 32. Our opinion does no such thing.

Our examination of the Origination Clause’s text and

history, as well as congressional practice and Supreme Court

precedent related to the Clause, persuaded us that the clearest

and narrowest ground on which to resolve Sissel’s challenge

to the payment required under section 5000A of the

Affordable Care Act, 26 U.S.C. § 5000A, was to rely on the

Supreme Court’s established purposive approach. The Court

recognized in National Federation of Independent Business

(NFIB) v. Sebelius, 132 S. Ct. 2566, 2596 (2012), that,

“[a]lthough the [section 5000A] payment will raise

considerable revenue [if people do not ‘sign up’], it is plainly

designed to expand health insurance coverage,”

acknowledging that the purpose of the Affordable Care Act

(“ACA”) and its tax penalty was to spur conduct, not to raise

revenue for the general operations of government.

Doctrinal and prudential reasons counseled against

relying on the alternative ground that the dissent proposes the

en banc court adopt. Among other things, the panel’s narrow

course avoided more categorical and less historically rooted

holdings that the dissent’s approach would require: (1) that all

bills containing tax provisions that do not designate the funds

raised for use by a specified government program implicate

the Origination Clause, and (2) that the Senate may amend

House-originated revenue bills without limit. The former is

contrary to the best reading of governing law, which does not

support application of the Origination Clause to legislation

like the ACA. The latter may be contrary to congressional

practice or, relatedly, be perceived as judicial endorsement of

2

treating the Origination Clause as empty formalism. The

panel found no reason to tread on such infirm ground. The

dissent disagrees, and in doing so occasions this response.

The dissent misreads the Supreme Court’s Origination

Clause precedent. The novel approach proposed by the

dissent—exempting bills that levy taxes from the Origination

Clause where they designate the funds for exclusive use by a

particular government program—is also flawed for a number

of other reasons. Textually, the dissent asserts that the

Origination Clause “unmistakably embraces all bills that are

intended to raise revenue.” Dissent 13. The dissent provides

no satisfying explanation why bills that raise revenue

designated for expenditure only on specified programs—and

only such bills—are outside the Clause, nor how the Clause’s

text forecloses the panel’s interpretation. See Dissent 13, 17-

20. The dissent’s analysis of congressional practice suffers

from the same defect. The House of Representatives has at

times interpreted the Clause more broadly than does the

Supreme Court, the panel, or the dissent, and it retains the

prerogative to do so. The dissent’s discussion of the history

of the Constitution’s ratification as relevant to the Origination

Clause analysis omits essential context that undercuts the

dissent’s conclusions. See Dissent 13-16, 25-28. We take up

the dissent’s principal concerns below.

I.

The panel opinion rests, as it must, on binding Supreme

Court precedent. The Supreme Court has never found an

Origination Clause violation. And, in three separate cases

spanning more than a century, it held that the variable

controlling whether a statutory provision falls within the

ambit of the Origination Clause is whether raising revenue for

3

the general Treasury is that provision’s primary purpose. See

United States v. Munoz-Flores, 495 U.S. 385, 399 (1990); see

also Twin City Nat’l Bank v. Nebeker, 167 U.S. 196, 203

(1897); Millard v. Roberts, 202 U.S. 429, 436-37 (1906). The

panel opinion rests on the purposive reading adopted and

applied by the Supreme Court in these three cases.

A.

Munoz-Flores, the Supreme Court’s most recent

pronouncement on the Origination Clause, restated that “a

statute that creates a particular governmental program and that

raises revenue to support that program, as opposed to a statute

that raises revenue to support Government generally, is not a

Bill for raising Revenue within the meaning of the

Origination Clause.” 495 U.S. at 398 (internal quotation

marks and brackets omitted). The dissent quotes that

language, but then adds a new and different test by which a

statute could escape the requirements of the Origination

Clause only if it raises funds “designated for use in a specific

program,” and does not “raise revenues paid into the general

treasury and available for general governmental use[].”

Dissent 17-20. The Court in Munoz-Flores, however,

described and followed Nebeker’s holding that “a bill creating

a discrete governmental program and providing sources for its

financial support is not a revenue bill simply because it

creates revenue.” 495 U.S. at 400. The Court could have

been talking about the ACA.

The dissent nonetheless argues that this court should

convene en banc to announce that the holdings in Munoz-

Flores, Millard, and Nebeker are narrower than the purposive

test expressly employed by the Supreme Court. Those cases,

the dissent contends, establish only a very limited exception

4

to the Origination Clause for taxes designated exclusively for

use by a specific program or service. Dissent 17-20. That

argument relies on a faulty premise. The cases considered by

the Supreme Court involved revenue-generating measures that

supported identified government programs or services but that

were not designated by law for exclusive use by the particular

program or service, and in any event none of them was

resolved on the grounds proposed by the dissent.

Munoz-Flores concerned a challenge to a law imposing a

“special assessment” on any person convicted of a federal

misdemeanor, with the proceeds up to a threshold amount

deposited into a Crime Victims Fund, and any surplus beyond

the threshold deposited into the general fund. 495 U.S. at

398-99. The dissent observes that “[t]he Court first swept

[the general fund spillover] scenario aside as one that would

rarely occur in practice.” Dissent 20-21. The Munoz-Flores

Court did sweep that scenario aside, though it could do so

only because it was engaged in an interpretation of the law’s

“primary purpose” rather than because assessments paid

would never go into general revenue. 495 U.S. at 399; see

also Minor and Technical Criminal Law Amendments Act of

1988, Pub. L. No. 100-690 § 7121, 102 Stat. 4419, 4422

(1988) (codified at 42 U.S.C. 10601(c)(1)(A) (1988)) (stating

that if the Crime Victims Fund hits a specified ceiling in

deposits in any given year, the excess “shall be deposited in

the general fund of the Treasury.”). In fact, Munoz-Flores

expressly acknowledged that some of the law’s proceeds

already had gone to general revenue. 495 U.S. at 399. The

case cannot support the dissent’s bright-line test.1

1

Indeed, the Supreme Court in Munoz-Flores affirmatively rejected

the test that the Ninth Circuit had adopted, and that the dissent

5

Nebeker involved three bank taxes in Section 41 of the

National Bank Act of 1864, ch. 106, 13 Stat. 99, 111 (1864),

that allegedly originated in the Senate. Nebeker, 167 U.S. at

202-03. The taxes, due every six months, required that each

bank pay a half percent tax on the “average amount of its

notes in circulation,” a quarter percent tax on the “average

amount of its deposits,” and a quarter percent tax on the

“average amount of its capital stock beyond the amount

invested in United States bonds.” Id. at 199 (quoting 13 Stat.

at 111). The principal purpose of the National Bank Act was

“to provide a national currency based upon United States

bonds,” id. at 203, and the Act provided that the expenses of

the Office of the Comptroller of the Currency would be paid

from the taxes in the Act, see id. at 199-200. But it is not the

case, as the dissent asserts, that “all of the funds raised were

designated by law to be used to pay the costs of printing and

distributing currency.” Dissent 18.

today commends, under which any Senate-originated bill that in

fact raises funds for “general revenue” violates the Origination

Clause. See 863 F.2d 654 (9th Cir. 1988), rev’d, 495 U.S. 385

(1990). The Court of Appeals for the Ninth Circuit had held in

Munoz-Flores that the special assessment made its legislative

vehicle a revenue bill because “Congress contemplated that the

revenue might be used as general federal revenue” and “Congress

failed to restrict the use of the monies assessed . . . in any way, so

that they might be shifted to another purpose at any time.” 863

F.2d at 659. The Supreme Court disagreed, stating that “a bill

creating a discrete governmental program and providing sources for

its financial support is not a revenue bill simply because it creates

revenue.” 495 U.S. at 400.

6

The Act at issue in Nebeker placed no restriction on how

funds raised in excess of those needed for maintaining the

currency would be spent. The taxes at issue in Nebeker were

to be paid “to the treasurer of the United States” “in lieu of all

existing taxes.” 167 U.S. 198-99 (quoting 13 Stat. at 111).

The statute directed that the “expenses of the [currency]

bureau” were to be paid from the money raised. Id. But, other

than that requirement, the Act placed no limitation on the use

of any excess funds. Id. As things turned out, there was a

great deal of excess. The Secretary of the Treasury’s most

recent annual report at the time the Supreme Court decided

Nebeker reflected that $1.763 million had been collected in

the first half of that year through the tax on national banks.

Annual Report of the Secretary of the Treasury on the State of

the Finances for the Year 1896, at XIX (GPO 1897). The

Secretary recommended that the tax be cut in half. Id. at

XXXIII. The Comptroller of the Currency’s own

contemporaneous annual report explained that this was

because the tax collected funds “beyond any possible need of

the Government.” Annual Report of the Comptroller of the

Currency to the Second Session of the Fifty-Fourth Congress,

at 105 (GPO 1896). When the new Federal Reserve System

displaced national bank notes in 1914, and the Comptroller

ultimately accounted for the life of the circulation tax, he

reckoned that $126 million had been collected from the

circulation tax alone while the expenses of the Currency

Bureau had been only $15 million. 1 Annual Report of the

Comptroller of the Currency to the Third Session of the Sixty-

Third Congress, at 55 (GPO 1915). The circulation tax raised

billions in today’s dollars. One could say—borrowing words

used by today’s dissent—that the Bank Act “raise[d] revenue.

Lots of revenue.” Dissent 1.

7

The Supreme Court nonetheless held in Nebeker that the

taxes did not implicate the Origination Clause because they

were “in the furtherance of [the] object” of the Act:

“providing a national currency.” Nebeker, 167 U.S. at 202.

The Court said it was conclusive that:

[t]he main purpose that congress had in view [in

enacting the National Bank Act] was to provide a

national currency based upon United States bonds,

and to that end it was deemed wise to impose the tax

in question. The tax was a means for effectually

accomplishing the great object of giving to the people

a currency that would rest primarily upon the honor of

the United States, and be available in every part of the

country. There was no purpose by the act, or by any

of its provisions, to raise revenue to be applied in

meeting the expenses or obligations of the

government.

Id. at 203 (emphasis added). The taxes in Nebeker had the

effect of raising substantial general revenues, but that was not

the purpose—the “great object”—of the law, and so the

Origination Clause was not implicated. See, e.g., 1 Westel

Woodbury Willoughby, The Constitutional Law of the United

States § 251, p. 566 (1910) (“[I]n [Nebeker] the court, in

effect, held that a bill, the primary purpose of which is not the

raising of revenue, is not a measure that must originate in the

House, even though, incidentally, a revenue will be derived

by the United States from its execution.”).

Similarly, in Millard, the Supreme Court held that three

laws relating to railroad improvements and expansion in the

District of Columbia did not implicate the Origination Clause.

202 U.S. at 434-35. One of the laws at issue provided, in

8

relevant part, that the costs of making the improvements the

Act contemplated would be paid “[f]ifty per centum . . . by

the United States and the remaining fifty per centum . . . by

the District of Columbia, which last-mentioned fifty per

centum shall be levied and assessed upon the taxable property

and privileges in said District other than the property of the

United States and of the District of Columbia.” 31 Stat. 767,

771, 773-74 (1901). The other two statutes also provided that

“half” of the costs of various sorts of improvements would

“be paid out of the revenues of the District of Columbia,” 31

Stat. 774, 779 (1901), or “by the District of Columbia,” 32

Stat. 909, 918 (1903). The case is frequently described as

imposing “a tax on property in the District of Columbia.”

Dissent 19. As the statutory language appears to show,

however, the three laws challenged in Millard did not in

themselves specify or levy taxes.

The Millard court of appeals thought the appellant

charged the Senate with unconstitutionally originating an

appropriations bill. 25 App. D.C. 221, 223-24 (1905), aff’d,

202 U.S. 429 (1906). It disposed of the case on the ground

that sustaining a challenge to “a bill plainly for another

purpose, and which only incidentally carries an appropriation

with it in order to give it effect” would mean that “possibly

one half or three fourths of the legislation of Congress would

be null and void.” Id.

The Supreme Court in Millard took a different tack,

calling the bill a tax but summarily rejecting the appellant’s

claim. The Court held that whether the challenged bill

anticipated future taxes or somehow levied taxes did not

matter, because “[w]hatever taxes are imposed are but means

to the purposes provided by the act.” 202 U.S. at 437. The

taxes were instrumental to the accomplishment of the

9

statutory purpose—railroad improvements. The Court thus

thought the challenge easily dismissed: “In answer to the

[Origination Clause] contention the case of [Nebeker] need

only be cited.” Id.

Millard’s brevity offers an important clue in unpacking

the Supreme Court’s adherence to a purposive approach to the

Origination Clause. The Court thought the issue so clear-cut

in Millard that it dismissed the case on purpose grounds rather

than on the ground that the statute simply did not impose any

taxes (but at most described future taxes). Were designation

truly the test of the Origination Clause’s scope, Millard would

have been a far more difficult case. Millard might or might

not have involved designation; it might or might not have

reviewed a bill levying new taxes. The Court in Millard did

not dismiss the case because the bill under review imposed no

tax, nor because the taxes were in any way explicitly

designated, but because the taxes were “but means to the

purposes provided by the act.” 202 U.S. at 437. Under that

analysis, the ACA readily survives Sissel’s Origination

Clause challenge.

B.

The purpose of the ACA was to overhaul the national

healthcare system, not to raise revenue. It provided for a

“shared responsibility payment,” 26 U.S.C. § 5000A, to

support the law’s programmatic goals by encouraging people

to purchase insurance and by helping to fund the overall

program. See NFIB v. Sebelius, 132 S. Ct. at 2585 (describing

the mechanics of the shared responsibility payment as the

solution to cost-shifting problems in the national health

insurance market).

10

The ACA enacted that mandate as part of three key

reforms in the national health insurance market. The Act (1)

bars insurers from denying coverage to any person because of

a preexisting condition (a reform called “guaranteed issue”)

and prohibits charging people with preexisting conditions

higher premiums than those without (a reform called

“community rating”), (2) enacts market-expanding reforms to

ensure large enough risk pools through a “coverage mandate”

to prevent health insurance premiums from skyrocketing, and

(3) provides refundable tax credits to individuals in order to

make insurance more affordable. See King v. Burwell, No.

14-114, slip op. at 4-5 (U.S. June 25, 2015). The centerpiece

of the market-expanding reforms is a requirement that

individuals purchase insurance, supported in part by the tax

subsidies where needed. See id. A mandate that people

lacking insurance pay to the government a “shared

responsibility payment” is designed to encourage individuals

to buy coverage.

As the Supreme Court emphasized in its recent King v.

Burwell opinion interpreting a key provision of the ACA, that

law’s “three key reforms” are “closely intertwined.” Id. at 4.

The Court explained that “[a] fair reading of legislation

demands a fair understanding of the legislative plan” and

Congress’s legislative plan in passing the ACA was to

“improve health insurance markets” by making coverage

more accessible and affordable. Id. at 21. King reinforces the

Supreme Court’s holding in NFIB, and the panel’s conclusion

in this case, that the individual mandate is part of a package of

reforms Congress deemed essential to the ACA’s main

purposes of “expand[ing] coverage in the individual health

insurance market” and “ensur[ing] that anyone who wanted to

buy health insurance could do so.” Id. at 1, 2.

11

The dissent objects that the shared responsibility payment

will raise too much money for it to count as just a piece of a

larger, more comprehensive whole.2 The dissent forefronts

the size of the numbers involved, highlighting one early

Congressional Budget Office estimate of the billions of

dollars the ACA would raise over ten years. Dissent 1, 8-9. It

is unclear what those numbers could add to the claim that the

ACA raises revenue; they are gross figures, not net of the

costs of providing the health insurance coverage and health

care for which the ACA was enacted. Any time Congress

enacts an ambitious, nationwide reform that includes a

mechanism to pay for itself, the numbers will be large. But

program size does not establish a revenue-raising purpose or

effect. The purpose of the ACA is to give back what it

generates, in the form of broader, more effective, and fairer

health coverage, not to raise revenue for general

governmental obligations.

The dissent does not contend that the purpose of the ACA

or its shared responsibility payment was to raise revenue. Id.

The dissent nonetheless points out that there are taxes in the

ACA other than the shared responsibility payment. Id. But

only the shared responsibility payment was alleged as the

basis for the Origination Clause claim in this case.3 In any

2

The dissent suggests that it “makes little sense” for the panel to

conclude that the Origination Clause “magically” does not apply to

the ACA even though, had the ACA been two bills, a tax bill and a

spending bill, the Origination Clause would have applied to the tax

bill. Dissent 11. The same criticism could have been leveled

against the bills at issue in Munoz-Flores, Millard, and Nebeker.

3

Rehearing is not appropriate on an issue that no party raised,

briefed or argued to the panel, the panel did not consider, and that

12

event, the dissent’s examples of Senate-originated laws that

should implicate the Origination Clause all involve Senate

bills with tax provisions that are unrelated to the purposes of

the bill or have revenue-raising as the Senate’s sole purpose.

Id. at 10, 20. The dissent mentions, for example, that the

Senate might attempt to attach a gas tax to a major national

security bill, id. at 10, or raise income taxes to offset the costs

of fighting a war, id. at 20. The panel opinion does not, and

need not, opine on how the Origination Clause might apply to

a bill containing revenue-raising provisions unrelated to its

non-revenue objectives.

The dissent does not contend, nor are we aware of any

credible suggestion, that the purpose of the ACA, including

its revenue provisions, was other than to reform the nation’s

market for health care, including by encouraging individuals

to purchase health insurance and by supplying subsidies to

make those purchases affordable. Sissel has not identified

any provision in the ACA that he asserts is unrelated to its

overarching purpose. This is not a case in which the Senate

originated an omnibus bill packed with revenue provisions

bearing no apparent relationship to any other aspect of the

bill. Whatever novel questions such a bill would raise, they

are far afield from this case, which is easily decided under the

Supreme Court’s precedents.

The dissent skillfully strives to square its view of the

Origination Clause with the Supreme Court’s precedents. Its

basic position is that “any provision” of a law that raises

was not even advanced in the losing party’s petition for rehearing.

See King v. Palmer, 778 F.2d 878, 883 (D.C. Cir. 1985) (Bork, J.,

concurring in denial of rehearing en banc).

13

revenue for general governmental purposes comes within the

Origination Clause. Id. at 23 n.5. It quickly acknowledges

that rule is too broad. Acts to sell public lands, trade bills,

and laws that fix the price of stamps, among many others,

have always fallen outside the Clause. So have several types

of laws that actually levy taxes. To align its rule with

precedent, the dissent defines an exception to the general rule:

laws creating distinct governmental programs fall outside the

Clause, but only if they designate the money they raise for a

separate fund to pay their costs. Id. at 17-20. The dissent

sees that even that rule still sweeps too wide. The Supreme

Court has held at least twice that laws that paid into the

general Treasury fell outside the Clause. To make it work,

the dissent locates another exception: Laws that do not raise

“substantial” revenue for the Treasury are also not subject to

the Clause. Id. at 20-22.

Those rules and their exceptions do not reflect the law.

The dissent insists that it must matter to the Constitution

whether a bill expressly designates its revenues for use by a

particular government program. No case has ever said that it

must. The Court has instead cautioned that “[w]hat bills

belong to that class [of bills for raising revenue] is a question

of such magnitude and importance that it is the part of

wisdom not to attempt, by any general statement, to cover

every possible phase of the subject.” Nebeker, 167 U.S. at

202. The dissent yearns for just such a general statement.

But there is no need for one in this case.

It bears repeating that, in all of our history, the Supreme

Court has not once found a law in violation of the Origination

Clause. The Court has said Origination Clause challenges are

justiciable, and the panel’s opinion stayed in the lane in which

the Court has authorized judicial review.

14

II.

In deciding this case, the panel saw no need to go further

than application of the relevant Supreme Court precedent. Our

court exercises its en banc power sparingly; its exercise of

that power to change the reasoning in correctly decided cases

is rarer still. We think the dissent, in arguing for rehearing

now, seeks to revisit Origination Clause doctrine in ways

squarely foreclosed by that precedent and unsupported by the

Constitution’s history and text. Even setting aside that these

are not open issues, we see problems with the dissent’s

treatment of several of them, which we address in turn.

A.

First, the dissent would reach the same conclusion that the

Court did on a different basis. It reasons that H.R. 3590, the

legislative vehicle that became the Affordable Care Act, was a

revenue-raising bill that originated in the House. Dissent 3,

24-28 & n.6. To get there, it rests on Rainey v. United States

for the proposition that, as long as a Senate amendment is “an

amendment to a bill for raising revenue which originated in

the House[,] [t]hat is sufficient” for it to comply with the

Origination Clause. 232 U.S. 310, 317 (1914). Rainey, the

dissent tells us, “is squarely on point and has never been

overruled.” Dissent 28.

If there was no reason to doubt that approach, we agree

that it could be a ready, additional way to decide this case,

either in the first instance or as an alternative holding. But we

decided against relying on it, in large part because the holding

of Munoz-Flores—the Supreme Court’s most recent

examination of the issue—was based on a different analysis.

15

The Court chose its approach over an alternative developed in

Justice Scalia’s passionate concurrence in the judgment,

which would have decided that case as the dissent proposes to

approach this one. See 495 U.S. at 391-92 & n.4; id. at 408

(Scalia, J., concurring in the judgment). Quite simply, Munoz-

Flores insisted on basing the holding upon the purpose of the

bill rather than the chamber where the bill began, and because

the Court’s latest analysis of the Origination Clause is

instructive (if not binding), we believe the proper course is to

follow that example.

We ultimately decided not to address the scope of the

Senate’s power to amend House-originated Bills because

Munoz-Flores and the Supreme Court’s other cases

delineating the scope of the Origination Clause provided a

clear path to the proper resolution of Sissel’s contention.

B.

The dissent also contends that the text of the Origination

Clause forecloses the approach that the Supreme Court has

used for more than a century and that we applied in this case.

Instead, the dissent states: “If any provision of the law raises

revenue for general governmental purposes, then the

Origination Clause applies.” Dissent 23 n.5. It explains:

The text of the Clause does not exempt bills that also

accomplish other objectives or serve other

predominant purposes. As long as the bill raises

revenue, the text of the Clause requires that the bill

originate in the House.

Id. at 13.

16

To the contrary, the text of the Origination Clause

supports the Supreme Court’s purposive approach. The text

of the Clause provides that:

All Bills for raising Revenue shall originate in the

House of Representatives; but the Senate may

propose or concur with Amendments as on other

Bills.

U.S. Const. art. I, § 7, cl. 1. The Clause’s critical word for

this analysis is “for.” The word “for” in this context means

“with the purpose or object of.” See Webster’s Third New

International Dictionary of the English Language 886 (1981);

see also Samuel Johnson, A Dictionary of the English

Language 353 (10th ed. 1792) (defining the word “for” as

meaning, among other things, “with intention of”).

The text of the Origination Clause supports the purposive

reading reflected in the Supreme Court’s decisions. The

dissent’s textual analysis ignores that the word “for” applies

to the purpose of a “Bill,” not to any single provision of it.

The grammatical reading of the text of the Origination Clause

is that it only reaches bills that have raising revenue as their

purpose or object. If it were meant to apply to all bills that

raised revenue, the Origination Clause would read “All Bills

that raise Revenue” shall originate in the House. The

purposive reading of the Origination Clause’s text also aligns

the Clause’s textual meaning with the Supreme Court’s

precedents, which have consistently held that bills whose

primary purpose is to raise revenue must originate in the

House, while all other bills may originate anywhere.

In contrast, if the dissent is right about what the Clause’s

text means, the Supreme Court’s cases have to be wrong

17

about it. The dissent admits that. Dissent 21-22. As the

dissent explains: “[S]ome might say that the Nebeker-

Millard-Munoz-Flores line of cases” are “inconsistent with

the constitutional text because the laws in those cases did

raise money, even though the money was designated by law

for specific programs.” Id. The dissent says there is a

“straightforward” explanation for that seemingly fatal

incongruity: In Nebeker, Millard, and Munoz-Flores the

Court carved out “narrow” exceptions to the Clause’s text for

“compelling” reasons supported by “history.” Id. at 22. As

discussed above, the Supreme Court’s decisions are better

read as consistent with the Constitution’s text.

C.

The dissent points out that the House has “blue-slipp[ed]”

revenue-raising bills with regulatory purposes. Id. at 15. But

the House has interpreted the Origination Clause far more

broadly than even the dissent believes is appropriate. The

practice of the House supports neither the panel nor the

dissent—its method differs from both. The House of

Representatives has charted its own path. That is its

prerogative. It does little to clarify the question now before

us.

The House has cited the Origination Clause in returning

to the Senate bills that appropriate funds, see 3 Lewis

Deschler, Deschler’s Precedents of the United States House

of Representatives ch. 13, §§ 20.2, 20.4 (1994), ban certain

imports, see 138 Cong. Rec. 3377 (Feb. 25, 1992); 145 Cong.

Rec. H5677-80 (July 15, 1999), adjust import quotas, see

Deschler’s Precedents ch. 13, § 15.4, and that reduce revenue

by granting tax exemptions, see id., §§ 15.3, 18.5. Recently,

the House blue-slipped a Senate bill that would have repealed

18

a fee whose proceeds, like those in Munoz-Flores and

Nebeker, were designated to pay for a particular nuclear waste

disposal program and were deposited into the general fund of

the Treasury only after they exceeded the cost of the program.

See 144 Cong. Rec. H878-79 (Mar. 5, 1998).

The House thus has considered the Clause to apply well

beyond the lines drawn by the Supreme Court, the panel in

this case, and the dissent. The House may well continue to do

so, and it retains the means by which to enforce its own

interpretation of the Clause. But, as a result, its practice does

not provide support for the dissent’s designation approach.

D.

The dissent claims that the Origination Clause “reflects a

deliberate choice made by the Framers at Philadelphia.”

Dissent 13. It cites the views of two individual Framers and

declares they “might as well have been speaking about the

Affordable Care Act.” Id. The Constitution certainly reflects

deliberate choices, but it is not at all clear that the dissent has

correctly analyzed the choices reflected in the Origination

Clause. The historical evidence best supports the Supreme

Court’s purposive interpretation.

What began as a requirement that “all money bills of

every kind shall originate in the House of Delegates & shall

not be altered by the Senate” eventually evolved into the

relatively limited prohibition on Senate origination of bills for

raising revenue that we have today. See Thomas L. Jipping,

TEFRA and the Origination Clause: Taking the Oath

Seriously, 35 BUFF. L. REV. 633, 661-62 & n.146 (1986). The

scope of the Origination Clause “underwent a narrowing of

focus from concerning ‘all money bills’ to ‘bills for raising

19

revenue’ through the course of the [constitutional]

convention.” Id. at 662. The narrowing was consequential:

“Successive versions of the clause show that the specific

powers contained in its original version were given up only

when it was clear that success of the convention required it.”

Id. at 661.

There is weighty evidence the Clause’s use of the phrase

“for raising revenue” was meant to establish a purposive

standard. On two occasions near the end of the Constitutional

Convention, supporters of the Clause proposed language that

expressly limited its reach to bills enacted for the purposes of

raising revenue. See 2 The Records of the Federal

Convention of 1787, at 294-97, 266-80 (Max Farrand ed.,

1911) (hereinafter Farrand’s Records). Opponents of the

Clause expressed no opposition to its narrowing, but focused

their criticisms on the absence of a Senate amendment power

and the Clause’s prohibition on Senate appropriations. See,

e.g., id. at 224, 274-80. That history suggests that the

Origination Clause’s “All Bills for raising Revenue” language

was meant to condense the purposive language put forward by

the Clause’s proponents near the close of the Convention—

“for the purposes of revenue”—but not to change its meaning.

The Constitutional Convention’s critical compromises

concerning the language and scope of the Origination Clause

occurred in its closing weeks, between mid-August and early

September 1787. As of mid-August, proponents of the initial,

broader version of the Origination Clause were on the

defensive. On August 6, the Committee of Detail—of which

Edmund Randolph, a strong supporter of the Origination

Clause, was a prominent member—put forward its draft

proposal for the Constitution. That draft included the

language: “All bills for raising or appropriating money . . .

20

shall originate in the House of Representatives, and shall not

be altered or amended by the Senate.” Id. at 178 (Aug. 6,

1787); see also William Ewald, The Committee of Detail, 28

CONST. COMMENT. 197 (2012) (describing circumstances

surrounding the Committee of Detail’s draft).

Two days later, a coalition of delegates came together to

strike the Clause from the draft of the Constitution, and

succeeded in doing so by a vote of 7-4. 2 Farrand’s Records

at 210-11 (Aug. 7, 1787); id. at 214 (Aug. 8, 1787). The

Clause’s opponents saw it as a needless landmine, one that

could seriously weaken the new national government by

investing too much power in what they viewed as the less

independent, less expert, and less responsible of the two

chambers of Congress, while generating pointless gridlock

and mortally weakening the Senate. See, e.g., id. at 224 (Aug.

8, 1787) (summarizing objections of Pinkney, Mercer, and

Madison, the last of whom “was for striking it out:

considering it as of no advantage to the large States as

fettering the Govt. and as a source of injurious altercations

between the two Houses”); id. at 274-80 (Aug. 13, 1787)

(summarizing additional objections of Wilson, Morris,

Madison, Carrol, Rutledge, and McHenry to a similar version

of the Origination Clause five days later).

The Origination Clause’s proponents, in an effort to

resuscitate it, suggested circumscribed language that they

hoped would reinstate its core. On August 11, Edmund

Randolph successfully moved to have the Clause

reconsidered:

[Randolph] signified that he should propose instead of

the original Section, a clause specifying that the bills

in question should be for the purpose of Revenue, in

21

order to repel ye. objection agst. the extent of the

words “raising money,” which might happen

incidentally, and that the Senate should not so amend

or alter as to increase or diminish the sum; in order to

obviate the inconveniences urged agst. a restriction of

the Senate to a simple affirmative or negative.

Id. at 263 (Aug. 11, 1787). That motion for reconsideration

passed by a vote of 9-1. Id. Randolph’s amended Origination

Clause read:

[A]ll bills for raising money for the purposes of

revenue, or for appropriating the same, shall originate

in the House of representatives; and shall not be so

altered or amended by the Senate, as to encrease or

diminish the sum to be raised, or change the mode of

raising or the objects of [its] appropriation.

Id. at 266 (Aug. 13, 1787). Speaking in favor of the revised

Origination Clause, George Mason explained that “[b]y

specifying purposes of revenue, it obviated the objection that

the Section extended to all bills under which money might

incidentally arise.” Id. at 273 (Aug. 13, 1787) (emphasis in

original).

Elbridge Gerry, probably the most ardent supporter of a

stronger Origination Clause, expressed displeasure with

Randolph’s narrowing and indicated it conceded too much. In

the debate over the new, narrower Origination Clause, Gerry

cautioned: “[A]cceptance of the plan will inevitably fail, if the

Senate be not restrained from originating Money bills.” Id. at

275. After substantial debate, the Convention rejected

Randolph’s amended language by a vote of 7-4. Id. at 266

(recording votes taken Aug. 13, 1787).

22

James Madison also spoke in that exchange. Madison was

against the inclusion of an Origination Clause. He had said

only five days earlier, with respect to a prior, broader version

that he “was for striking it out.” Id. at 224 (Aug. 8, 1787).

Madison explained that he thought Randolph’s

amendments to the Clause did little to repair it. See id. at

276-77 (Aug. 13, 1787). Randolph’s suggested purposive

language, he argued, would not prevent “contention &

faction,” and it could create “difficulties and disputes between

the two houses.” Id. at 276 (Aug. 13, 1787). Even if limiting

purposive language were inserted, the House could still insist

that Senate-originated trade bills were actually disguised bills

for raising revenue. See id. Randolph’s purposive language

would not prevent the two Houses from clashing over which

bills were subject to the Clause. See id. In Madison’s view,

the purposive language was not enough of an improvement.

See id. at 276-77.

The dissent leans on Madison’s remarks, but concludes

they express views opposite to those Madison held. See

Dissent 13-15. The dissent sees in Madison’s words a ringing

rejection of a purposive Origination Clause, not just by

Madison, but the whole Convention. Two flaws in that

account are especially pertinent.

First, Madison opposed Randolph’s purposive language

not because he favored a broader Clause (as the dissent

implies) but because he opposed the Clause entirely, and

thought the purposive language did not meaningfully narrow

it. The dissent’s error is in thinking that Madison was against

the language when in fact he was against the Clause, and

thought the language too limited a fix to persuade him to

support it. See Dissent 13-15 & nn.3-4.

23

Second, the dissent overlooks that, whatever Madison

thought, supporters of the Clause—those that most wanted it

in the Constitution—thought that a purpose-based limitation

was a compromise on which all sides could agree. The

dissent pins its argument that the Convention rejected the

purposive Origination Clause on two sentences by Madison.

The dissent overlooks entirely that Madison thought a non-

purposive Clause would be equally unworkable, 2 Farrand’s

Records at 276-77 (Aug. 13, 1787); id. at 224 (Aug. 8, 1787),

that discussion of the Origination Clause did not begin or end

with Madison’s remarks, and that when its supporters

regrouped and reintroduced the Clause thereafter, they left the

purposive language intact.

Following the rejection of Randolph’s proposal on August

13, Caleb Strong moved on August 15 to introduce language

substantially similar to Randolph’s, except that it also

authorized the Senate to amend House-originated bills passed

“for the purposes of revenue.” Id. at 294, 297. The revised

language of the Origination Clause read:

Each House shall possess the right of originating all

Bills except Bills for raising money for the purposes

of revenue or for appropriating the same and for fixing

the salaries of the Officers of Government which shall

originate in the House of representatives; but the

Senate may propose or concur with amendments as in

other cases.

Id. at 294. The Convention postponed consideration of the

motion to amend the relevant Section by a vote of 6-5. Id.

On August 21 it again deferred consideration of the

Amendment. Id. at 357-58.

24

On August 31, those parts of the draft Constitution that

had been postponed were referred to a committee called the

Committee of Eleven, composed of a Convention member

from each state. See id. at 473, 481 (Aug. 31, 1787) (listing

Committee members and purpose of the Committee). On

September 5, the Committee reported out a version of the

Origination Clause almost identical to the modern Clause. It

included the important requirement that “all Bills for raising

Revenue” would originate in the House of Representatives,

along with language permitting the Senate to amend such

bills. Id. at 505 (Sept. 5, 1787). The convention finalized the

Clause three days later by slightly amending the language

governing the Senate’s amendment authority. Id. at 552

(Sept. 8, 1787). The Convention settled on that language by a

vote of 9-2, id., and signed the Constitution nine days later, on

September 17, 1787.

The final language of the Clause employs a word (“for”)

that is widely recognized as a synonym for the words “for the

purposes of”—the very language the proponents of the

narrowed substitute Clause had suggested. See id. at 263

(Aug. 11, 1787) (Randolph’s proposed language: “All bills for

raising money for the purposes of revenue”); id. at 294 (Aug.

15, 1787) (Strong’s proposed language: “Bills for raising

money for the purposes of revenue”). That evidence suggests

that the Supreme Court’s purposive reading of the Origination

Clause is the reading the Framers intended.

The dissent misses that substitution of the Constitution’s

“for raising revenue” language for its “for raising money for

the purposes of revenue” language occurred in a context

making clear that it was a stylistic change, not a substantive

one. The Committee of Eleven that proposed much of the

Constitution’s final text primarily regarded the question

25

before it as whether to include the Clause at all. See Charles

Warren, The Making of the Constitution 668-71 (1937).

Ultimately, the Committee chose to include the Origination

Clause in exchange for investing the Senate with the power to

choose the President when a majority of the electors were not

united for any candidate.4 Id. at 669 (explaining that “to

conciliate those who would be inclined to oppose such an

increase of power in the Senate” the Committee adopted “the

suggestion which Caleb Strong had made as to revenue

bills”). The slight change from Caleb Strong’s proposed

wording brooked no recorded comment whatsoever when

placed before the Convention, see 2 Farrand’s Records at

508-10 (Sept. 5, 1787), and the Convention specifically

adopted the Clause’s “for raising Revenue” language by a

vote of 9-2. Id. at 545, 552 (Sept. 8, 1787). One would

hardly expect such a united and amicable outcome if the

scope of the Clause remained an issue. The foregoing is

powerful evidence that the Committee of Eleven did not

quietly broaden the Origination Clause’s scope in early

September. The best reading of the history is that the

Convention finalized the scope of the Clause in mid-August

(when it debated the Clause’s purposive language) and

delegated to the Committee of Eleven the more limited

question whether or not to include it in the Constitution at all.

See Warren, supra at 668-71.

4

The Convention rejected the Senate-empowering half of the

Committee’s compromise and placed in the House of

Representatives the power to choose the President when a majority

of the electors were not united for any candidate. See U.S. Const.

art. II, § 1, cl. 3; 2 Farrand’s Records at 519, 527, 531 (Sept. 6,

1787); 1 George Ticknor Curtis, Constitutional History of the

United States 457 (1889).

26

What of the dissent’s reliance on statements by Elbridge

Gerry and James Madison praising a seemingly broader

Origination Clause? The version Gerry championed is not in

the Constitution. Gerry criticized the Constitution for

rejecting his vision of the Origination Clause, and he cited

that rejection as a reason why he refused to sign the

Constitution and advocated against its ratification. See Letter

of Elbridge Gerry to the Vice President of the Convention of

Massachusetts (Jan. 21, 1788), reprinted in 3 Farrand’s

Records at 265. Madison extolled the Origination Clause in

Federalist 58, not because it gave the House power over all

taxes, but because, in his opinion, it vested the House with

exclusive power to originate appropriations bills. See The

Federalist No. 58, at 359 (James Madison) (Clinton Rossiter

ed., 1961) (explaining that the House’s power would derive

from its “power over the purse”). Neither “revenue” nor

“tax” is mentioned in Federalist 58. Id. at 356-61. And at the

Convention itself, Madison appeared vocally to oppose the

Clause. See 2 Farrand’s Records at 224 (Aug. 8, 1787); id. at

276-77 (Aug. 13, 1787).

Because the Supreme Court has instructed us how to

decide Origination Clause questions, this case presents no

occasion for a comprehensive historical inquiry. But even the

modest look we take here demonstrates that the gloss given by

the dissent is wide of the mark.

E.

In addition to evidence from the framing and ratification,

early constitutional history confirms that the Origination

Clause’s expected application was through a purpose-based

test. St. George Tucker, writing in 1803 in the first major

treatise on American law, argued that the Origination Clause

27

should be read in light of English practice and therefore

sweepingly construed to prevent the Senate from raising

revenue through even “indirect modes of taxation” such as

“debasing the value of the coin.” St. George Tucker,

Blackstone’s Commentaries 261 (1803). Tucker, however,

was forced to acknowledge, in a lengthy footnote, that the

practice of the first Congresses had already shown that those

bodies thought the Origination Clause was quite narrow, and

that laws that raised revenue, even “to a very considerable

amount,” did not implicate the Origination Clause unless

“revenue was intended to be drawn to the government by

these laws.” Id. at 261 n.§ (1803).

Justice Joseph Story, writing in 1833 in his own

Commentaries on the Constitution, commented on Tucker’s

treatment of the Origination Clause, explaining that “[a]

learned commentator[, Tucker,] supposes, that every bill,

which indirectly or consequentially may raise revenue, is,

within the sense of the constitution, a revenue bill.” 2 Joseph

Story, Commentaries on the Constitution § 877, at 343

(1833). Justice Story went on to explain that “the practical

construction of the constitution has been against his opinion,”

id., and that “the history of the origin of the power, already

suggested, abundantly proves, that it has been confined to

bills to levy taxes in the strict sense of the words, and has not

been understood to extend to bills for other purposes, which

may incidentally create revenue,” id.

Justice Story’s views form the basis of controlling

precedent in this court and in the Supreme Court. In deciding

the first appeal of Nebeker, this court quoted extensively from

Justice Story’s Commentaries on the Constitution. The

opinion noted Story’s recognition that there were two views

of the Origination Clause: a view that “supposes that every

28

bill which indirectly or consequentially may raise revenue is,

within the sense of the Constitution, a revenue bill,” and the

superior view that “it has been confined to bills to levy taxes

in the strict sense of the words, and has not been understood

to extend to bills for other purposes, which may incidentally

create revenue.” 3 App. D.C. at 201 (quoting 1 Joseph Story,

Commentaries on the Constitution § 880); see also United

States v. Norton, 91 U.S. 566, 569 (1875) (citing Justice

Story’s views approvingly). The Supreme Court concluded,

as we did then and must again here, that the latter view was

correct. 167 U.S. 196, 202 (adopting Justice Story’s views);

see also Millard, 202 U.S. at 436 (treating Justice Story’s

views as having been adopted by the Supreme Court in

Nebeker). Justice Story’s comments on Tucker have been

quoted in Supreme Court opinions on the Origination Clause,

often as grounds for holding that the law at issue does not

come within the scope of the Clause. See Munoz-Flores, 495

U.S. at 397; Millard, 202 U.S. at 436.

Early congressional practice, recognized by two of

America’s most influential early constitutional scholars and

endorsed by one of them (Story), strongly suggests that the

original expected application of the Origination Clause was

purposive. Most importantly, in our view, that is the

approach that was adopted and has been reaffirmed by the

Supreme Court.

***

For these reasons, the dissent from the denial of rehearing

en banc presents no basis for the en banc court to revisit the

holding that Sissel’s challenge to the mandate in section

5000A of the Affordable Care Act does not come within the

scope of the Origination Clause. In adhering to Supreme

29

Court precedent adopting a purposive interpretation, the panel

opinion honors the balance of power between the two Houses

of Congress as envisioned by the Framers, thereby

safeguarding individual liberty. There is no basis for the

dissent’s accusation to the contrary. See Dissent 22-23. The

court has correctly voted to deny rehearing en banc.

KAVANAUGH, Circuit Judge, with whom Circuit Judges

HENDERSON, BROWN, and GRIFFITH join, dissenting from the

denial of rehearing en banc: This case raises a serious

constitutional question about the 2010 Affordable Care Act, one

of the most consequential laws ever enacted by Congress. Did

Congress’s enactment of the Act comport with the Origination

Clause of the Constitution? The Origination Clause provides:

“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.” U.S. Const. art. 1, § 7, cl. 1.

The Origination Clause therefore requires that bills for “raising

Revenue” originate in the House of Representatives. Revenue

bills may be amended in the Senate “as on other Bills,” but they

must originate in the House. If the Affordable Care Act did not

meet the requirements of the Origination Clause, then the Act –

or at least revenue-raising provisions such as the individual

mandate – must be invalidated.

In my view, the Affordable Care Act complied with the

Origination Clause, but not for the reason articulated by the

three-judge panel opinion. The panel opinion concluded that

the Affordable Care Act was not a revenue-raising bill for

purposes of the Origination Clause and therefore did not have to

originate in the House. In my respectful view, that conclusion

is untenable. The Affordable Care Act established new

subsidies for the purchase of health insurance and expanded the

Medicaid program for low-income Americans. Those new

subsidies and expanded entitlements cost an enormous amount

of money. So as not to increase the annual budget deficit and

the overall national debt, the Act imposed numerous taxes to

raise revenue. Lots of revenue. $473 billion in revenue over 10

years. It is difficult to say with a straight face that a bill raising

$473 billion in revenue is not a “Bill for raising Revenue.”

The Affordable Care Act therefore was a revenue-raising

bill subject to the Origination Clause. That said, the Act did

2

in fact originate in the House, as required by the Clause.

Although the original House bill was amended and its

language replaced in the Senate, such Senate amendments are

permissible under the Clause’s text and precedent.

So in concluding that the Affordable Care Act complied

with the Origination Clause, the panel opinion reached the

right bottom line, but relied on what I see as a faulty rationale.

Does such a case still warrant en banc review? Oftentimes

no, but here yes. The panel opinion sets a constitutional

precedent that is too important to let linger and metastasize.

Although no doubt viewed by some today as a trivial or

anachronistic annoyance, the Origination Clause was an

integral part of the Framers’ blueprint for protecting the

people from excessive federal taxation. It is true that the

Framers’ decision to grant the Senate a broad amendment

power gave the Origination Clause less bite than it otherwise

might have had. But the Clause nonetheless has been

important historically and remains vital in the modern

legislative process. By newly exempting a substantial swath

of tax legislation from the Origination Clause, the panel

opinion degrades the House’s origination authority in a way

contrary to the Constitution’s text and history, and contrary to

congressional practice. As a result, the panel opinion upsets

the longstanding balance of power between the House and the

Senate regarding the initiation of tax legislation. Therefore, I

would grant rehearing en banc. In my respectful view, the en

banc Court should vacate the panel opinion and rule for the

Government on the ground that the Affordable Care Act

originated in the House and thereby complied with the

Origination Clause.

At oral argument in the Supreme Court’s most recent

Origination Clause case some years ago, United States v.

Munoz-Flores, 495 U.S. 385 (1990), Justice O’Connor posed

3

a hypothetical about a national highway funding bill that

increased income taxes to be paid into the general treasury

“for that purpose” – that is, to “support the road building.”

That hypothetical almost precisely tracks the Origination

Clause issue we face in this case. The hypothetical was not

presented in Munoz-Flores, but Justice O’Connor asked about

it to test the limits of the Government’s theory. The

Government attorney dutifully claimed (then as now) that

such a hypothetical bill would not be subject to the

Origination Clause. Justice O’Connor responded: “Well,

that’s a pretty extreme position.” True then. And true now.

I

On October 8, 2009, the House of Representatives passed

H.R. 3590, the Service Members Home Ownership Tax Act

of 2009. That bill, among other things, modified the first-

time homebuyer tax credit for service members, increased

some corporate tax prepayment rates, and increased the tax

penalty for failing to file certain corporate tax returns. After

passing in the House, H.R. 3590 was sent to the Senate.

There, Senate Majority Leader Harry Reid offered an

“Amendment in the nature of a substitute” to H.R. 3590. The

amendment struck all of the language after the bill’s

introductory “enacting clause” and inserted in its place the

Senate’s version of what became the Affordable Care Act.

Instead of introducing a new Senate bill, Senator Reid

proceeded via amendment of a House bill. By proceeding in

that manner, the Senate recognized that the Origination

Clause of the Constitution requires revenue-raising bills to

originate in the House. The Senate passed the amended bill

on December 24, 2009, and the House in turn passed the

amended bill without further change on March 21, 2010.

President Obama then signed it into law on March 23, 2010.

4

Sissel argues that the Affordable Care Act is a bill “for

raising Revenue” that had to originate in the House under the

Origination Clause of the Constitution. He further contends

that the law did not originate in the House. Sissel is correct

about the first point but wrong about the second. The

Affordable Care Act was a bill for raising revenue. But it

originated in the House.

The Origination Clause appears in Article I, Section 7,

Clause 1 of the Constitution. It provides: “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.” Although obscure to many

observers today, the Clause was very important to the

Framers and remains vital to the modern legislative process.

The Origination Clause was one of the many finely tuned

mechanisms the Framers adopted to separate power within the

new national government, so as to avoid the dangers of

concentrated power and thereby protect individual liberty.

To explain the background: At the Constitutional

Convention, the structure and powers of the national

government were the subject of contentious deliberations.

Those deliberations included great debates about the

Legislative Branch. Many feared that a single legislative

body would become too powerful, swallow up the other

Branches, and threaten individual liberty. See generally THE

FEDERALIST NO. 48, at 309 (James Madison) (Clinton

Rossiter ed., 1961). In addition, the smaller states worried

that representation by population in the national legislature

would overwhelm their interests, while the larger states feared

that equal representation for each state would unfairly dilute

the larger states’ power and make them easy financial targets.

See 1 The Records of the Federal Convention of 1787, at 177-

80 (Max Farrand ed., 1911). To help address some of those

5

concerns, the Framers reached a Great Compromise. The

Convention established a bicameral legislature that would

divide the legislative power between two bodies, thereby

preventing concentration of power in a single legislative

assembly. To resolve the large state versus small state

dispute, the Great Compromise provided for equal

representation by state in the Senate and proportional

representation by population in the House.

With two bodies, however, also came the delicate task of

allocating legislative powers between the House and Senate.

The taxing power was perhaps the most critical. After all,

one great failing of the Articles of Confederation was the

inability of the national government to tax citizens and fund

national priorities such as the military. The delegates at

Philadelphia therefore granted Congress a broad power to tax.

At the same time, the Framers understood the dangers

inherent in the power to tax, namely, that “the power to tax

involves the power to destroy.” McCulloch v. Maryland, 17

U.S. 316, 431 (1819). They had just fought a war for

independence fueled by outrage at taxation without

representation.

So the delegates vigorously debated how to divide the

power to tax between the House and the Senate. The

Convention ultimately decided to grant the House of

Representatives the exclusive power to originate tax bills,

although the bills would then be open to Senate amendment.

As James Madison later explained, the “principal reason”

why the Constitution gave exclusive origination power to the

House was that members of the House are “chosen by the

People,” “best acquainted with their interests,” and subject to

“more frequent[]” elections. 1 Debates and Proceedings in

the Congress of the United States 361 (Joseph Gales ed.,

1834).

6

The Origination Clause was so central to the founding

blueprint that one delegate to the Constitutional Convention,

reflecting the prevailing sentiment, warned that the

“acceptance of the [Constitutional] plan will inevitably fail, if

the Senate be not restrained from originating Money bills.” 2

The Records of the Federal Convention of 1787, at 275

(statement of Elbridge Gerry) (Aug. 13, 1787) (Max Farrand

ed., 1911); id. at 5 (statement of Elbridge Gerry) (July 14,

1787) (calling the Origination Clause the “corner stone” of

the Great Compromise). Likewise, during the crucial

ratification debates in New York, Madison stressed the

importance of the House’s origination authority. See THE

FEDERALIST NO. 58 (James Madison).

The House’s origination power, like other aspects of the

constitutionally established separation of powers, was “not

simply an abstract generalization in the minds of the

Framers,” but was expressly “woven into the document that

they drafted in Philadelphia in the summer of 1787.”

Immigration & Naturalization Service v. Chadha, 462 U.S.

919, 946 (1983) (quoting Buckley v. Valeo, 424 U.S. 1, 124

(1976)) (internal quotation marks omitted).

Those structural details, the Supreme Court has stated

many times, are not simply matters of etiquette or

architecture. They also help protect individual liberty – in

this instance, by ensuring that only those representatives

closest to the people can initiate legislation to wrest money

from the people. See generally Free Enterprise Fund v.

Public Company Accounting Oversight Board, 561 U.S. 477,

501 (2010) (the “Framers recognized that, in the long term,

structural protections against abuse of power were critical to

preserving liberty”) (internal quotation marks omitted);

Clinton v. City of New York, 524 U.S. 417, 450 (1998)

(Kennedy, J., concurring) (“Liberty is always at stake when

7

one or more of the branches seek to transgress the separation

of powers.”); Metropolitan Washington Airports Authority v.

Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S.

252, 272 (1991) (“The ultimate purpose of this separation of

powers is to protect the liberty and security of the

governed.”); Free Enterprise Fund v. Public Company

Accounting Oversight Board, 537 F.3d 667, 714 (D.C. Cir.

2008) (Kavanaugh, J., dissenting) (“the separation of powers

protects not simply the office and the officeholders, but also

individual rights”).

Moreover, what “the Court has said of the allocation of

powers among branches is no less true of such allocations

within the Legislative Branch.” United States v. Munoz-

Flores, 495 U.S. 385, 394 (1990). “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.” Id. at 395.

Because the constitutional structure helps safeguard

individual liberty, the Judiciary has long played a critical role

in preserving the structural compromises and choices

embedded in the constitutional text. The Supreme Court has

often explained that, in cases where a plaintiff has standing,

the “courts possess power to review either legislative or

executive action that transgresses identifiable textual limits.”

Nixon v. United States, 506 U.S. 224, 238 (1993); Powell v.

McCormack, 395 U.S. 486, 506 (1969); Marbury v. Madison,

5 U.S. 137, 176 (1803) (“The powers of the legislature are

defined, and limited,” and “those limits may not be mistaken,

or forgotten.”). Consistent with those general principles, the

Supreme Court has held that the Judiciary possesses the

authority and the responsibility to address and remedy

violations of the Origination Clause. See Munoz-Flores, 495

8

U.S. at 387. As the Court stated in Munoz-Flores: “Surely a

judicial system capable of determining when punishment is

‘cruel and unusual,’ when bail is ‘[e]xcessive,’ when searches

are ‘unreasonable,’ and when congressional action is

‘necessary and proper’ for executing an enumerated power is

capable of making the more prosaic judgments demanded by

adjudication of Origination Clause challenges.” Id. at 396. 1

It is therefore our duty here to assess whether the

Affordable Care Act complied with the Origination Clause.

II

The Affordable Care Act is, among other things, a

massive tax bill. The Congressional Budget Office forecasted

that the Act would raise $473 billion in revenue over 10

years. See Letter from Douglas W. Elmendorf, Director,

Congressional Budget Office, to Nancy Pelosi, Speaker of the

United States House of Representatives (March 20, 2010), in

Congressional Budget Office, Selected CBO Publications

Related to Health Care Legislation, 2009-2010, at 21-22

(2010). 2 Those new revenues were indispensable to the law

1

To be sure, a potentially challenging remedial or severability

question arises if a law is found to violate the Origination Clause:

Should a court invalidate the whole law or strike only those

revenue-raising provisions that originated in the Senate? We need

not address that question in this case because the Act did originate

in the House, as explained below.

2

That revenue number represents the CBO’s revenue

projection for only the Affordable Care Act, H.R. 3590, not for that

Act in combination with the Health Care and Education

Reconciliation Act of 2010, H.R. 4872. The Reconciliation Act

was passed shortly after the Affordable Care Act and made certain

corrections to it. Considered together, the two bills were projected

9

because proponents did not want the law’s new health

insurance subsidies and expanded Medicaid entitlements to

substantially increase the annual budget deficit and add to the

Nation’s overall debt. The new revenues would largely offset

the Act’s significant new expenditures on the overall federal

balance sheet, or at least that was the hope. The revenue

provisions were essential to counter fears and accusations that

the new law would bust the budget. See generally Steven

Brill, America’s Bitter Pill 164 (2015) (“The main concern at

the White House was revenue.”).

The Act contains a wide variety of revenue-raising

provisions ranging from the tax penalty on individuals who

do not have insurance (commonly known as the individual

mandate), to the tax penalty on employers who do not provide

insurance, to additional payroll taxes, to new taxes on

“Cadillac” health plans, pharmaceutical manufacturers,

medical device companies, health insurers, and cosmetic

surgery. See Pub. L. No. 111-148, §§ 1501, 1513, 9015,

9001, 9008, 9009, 9010, 9017, 124 Stat. 119 (2010). The Act

refers to the Internal Revenue Code about 200 times. It also

uses the word “tax” about 200 times. It dedicates an entire

title to “Revenue Provisions.” See id. tit. IX. And the

Congressional Budget Office repeatedly scored the Act’s

effects on revenue enhancement and deficit reduction. See

Selected CBO Publications Related to Health Care

Legislation, 2009-2010.

There may be close calls in determining whether a bill

raises revenue for purposes of the Origination Clause. In my

view, this case is not a close call. Under the text, history, and

to raise $525 billion in revenue over 10 years. See Selected CBO

Publications Related to Health Care Legislation, 2009-2010, at 21.

10

precedent of the Origination Clause, a bill such as the

Affordable Care Act that raises substantial revenue that is

used for general governmental purposes easily qualifies as a

bill “for raising Revenue.” As the Supreme Court has

explained, the Origination Clause applies to a “statute that

raises revenue to support Government generally.” United

States v. Munoz-Flores, 495 U.S. 385, 398 (1990). That

description readily covers the Affordable Care Act.

The Government nevertheless argues (and the panel

opinion surprisingly agreed) that the Affordable Care Act is

not a revenue-raising bill subject to the Origination Clause. I

respectfully but strongly disagree.

To begin with, the Government points out that the

Affordable Care Act has purposes other than raising revenue.

That is of course true. That is true of most legislation. But

that is also irrelevant under the Origination Clause. No case

or precedent of which I am aware has said that a law that

raises revenues for general governmental use is exempt from

the Origination Clause merely because the law has other,

weightier non-revenue purposes. Imagine a simple gas tax

bill introduced in the Senate. Suppose that the bill is

combined with a major national security bill also introduced

in the Senate. Does that render the combined Senate bill

exempt from the Origination Clause because the national

security purposes predominate? Of course not. If it were

otherwise, the Senate could systematically evade the

Origination Clause by tacking Senate-originated revenue

provisions onto other Senate-originated bills. But that is

neither the law nor the congressional practice.

Likewise, no case or precedent of which I am aware has

said that a regulatory tax – that is, a tax that seeks in some

way to influence conduct – is exempt from the Origination

11

Clause merely because such a tax also has a purpose of

encouraging or discouraging certain behavior. It does not

matter whether that regulatory purpose might be said to

predominate. Imagine the same gas tax bill introduced in the

Senate. Suppose that its sponsors say that the bill is designed

to discourage excessive driving, encourage the use of public

transportation, and help the environment. Does that render it

exempt from the Origination Clause? Of course not.

Otherwise, most taxes would escape the Origination Clause.

After all, virtually every tax has the dual purposes of raising

revenue and influencing behavior. To borrow the words of

the Supreme Court: “[E]very tax is in some measure

regulatory.” National Federation of Independent Business v.

Sebelius, 132 S. Ct. 2566, 2596, slip op. at 37 (2012) (quoting

Sonzinsky v. United States, 300 U.S. 506, 513 (1937))

(internal quotation marks omitted); see also id. at 2596, slip

op. at 36 (“taxes that seek to influence conduct are nothing

new”). That is because a tax “interposes an economic

impediment to the activity taxed as compared with others not

taxed.” Id. at 2596, slip op. at 37 (internal quotation marks

omitted). It is neither the law nor the practice to exempt

regulatory taxes from the Origination Clause.

And consider this. Suppose the Affordable Care Act had

been split into two bills. One bill had all the subsidies,

entitlements, and new regulatory prohibitions. The other bill

had all the new taxes and revenue-raising provisions. Even

the Government and the panel opinion would presumably

concede that the Origination Clause applies to the latter bill.

But when the two bills are combined into one bill, the

requirements of the Origination Clause magically disappear,

they say. That makes little sense, at least to me.

As a practical matter, moreover, while courts can

sometimes identify the various purposes of a law, it is

12

extremely difficult for a Court to identify one predominant

purpose. Courts cannot realistically determine the

predominant purpose of a regulatory tax, or of a large piece of

legislation with numerous provisions and multiple objectives.

Indeed, the Supreme Court has cautioned against trying to

divine a legislature’s “primary” purpose. The “search for

legislative purpose is often elusive enough, without a

requirement that primacy be ascertained.” McGinnis v.

Royster, 410 U.S. 263, 276 (1973) (citation omitted).

Complicating the task still further, each legislator could have

a different “primary” purpose for passing a revenue bill. And

judicial inquiries into those purposes “would allow courts to

peruse legislative proceedings for subtle emphases supporting

subjective impressions and preferences.” Id. at 277; see also

Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863,

870 (1930) (“The chances that of several hundred men each

will have exactly the same determinate situations in mind . . .

are infinitesimally small.”); cf. In re Kellogg Brown & Root,

Inc., 756 F.3d 754, 759 (D.C. Cir. 2014) (“[T]rying to find the

one primary purpose for a communication motivated by two

sometimes overlapping purposes . . . can be an inherently

impossible task.”).

The panel concurrence in the denial of rehearing en banc

confidently says: “The purpose of the ACA was to overhaul

the national healthcare system, not to raise revenue.” Panel

Concurrence at 9. But the purpose of the Act was to overhaul

the national healthcare system and to raise revenue. You

couldn’t do the former without also doing the latter.

But put aside the basic theoretical and practical problems

with the Government’s argument. The Government’s theory

suffers from more fundamental flaws, namely that it

contradicts the Origination Clause’s text, history, and

precedent.

13

Consider the text. The text of the Origination Clause

unmistakably embraces all bills that are intended to raise

revenue. The Clause says that it applies to “All Bills for

raising Revenue.” Period. The text of the Clause does not

exempt bills that also accomplish other objectives or serve

other predominant purposes. As long as the bill raises

revenue, the text of the Clause requires that the bill originate

in the House.

Importantly, moreover, that text reflects a deliberate

choice made by the Framers at Philadelphia. During the

Constitutional Convention, Virginia delegate Edmund

Randolph proposed that the protections of the Origination

Clause apply only to bills that were solely for raising revenue.

He suggested in particular that the Clause apply only to “Bills

for raising money for the purpose of revenue.” 2 The Records

of the Federal Convention of 1787, at 273 (Aug. 13, 1787)

(Max Farrand ed., 1911).

James Madison objected to Randolph’s formulation. “In

many acts,” Madison presciently said, “the object would be

twofold.” Id. at 276 (statement of James Madison) (Aug. 13,

1787). Although the “raising of revenue would be one of

them,” how “could it be determined which was the primary or

predominant one”? Id. (Aug. 13, 1787). Madison might as

well have been speaking about the Affordable Care Act. 3

3

Madison was not a supporter of the Origination Clause, as

the panel concurrence notes. But that is in part because he wanted

proportional representation in the Senate. The Great Compromise

eliminated proportional representation in the Senate, with the

Origination Clause being some recompense to the large States for

agreeing to the Compromise. Madison saw the Origination Clause

as weak compensation for losing proportional representation in the

14

In his statement opposing Randolph’s approach, Madison

cited historical experience. He noted that when tensions “first

opened” with Great Britain, “their power to regulate trade was

admitted. Their power to raise revenue rejected.” Id. (Aug.

13, 1787). Yet it proved impossible to distinguish between

the two powers because trade regulations raised revenue in

addition to serving other purposes. As Madison summarized:

“An accurate investigation of the subject afterward proved

that no line could be drawn between the two cases.” Id. (Aug.

13, 1787).

Madison’s view about Randolph’s “for the purpose of

revenue” language prevailed, and the Convention defeated

Randolph’s proposal by a vote of 7 to 4. See id. at 280 (Aug.

13, 1787). 4 Over the ensuing weeks, the delegates engaged in

further back and forth about the Clause, but the “for the

purpose of revenue” language never made it into the final

version of the Clause.

The panel concurrence says that the Convention’s formal

rejection of the words “for the purpose of revenue” was

Senate. Madison also pointed out several flaws in various proposed

versions of the Clause, including the problem of trying to identify a

primary purpose of legislation. The Convention agreed with him

on that point. Contrary to the suggestion in the panel concurrence,

Madison’s prescient and successful objection to the “purpose of

revenue” language cannot be deemed irrelevant simply because he

also had other concerns about the Clause.

4

The panel concurrence says that delegates to the Convention

“expressed no opposition” to the “narrowing” proposed by

Randolph. Panel Concurrence at 19. That is incorrect. Madison’s

statement objected to the precise words that the concurrence now

contends were incorporated sub silentio into the final version of the

Clause. And the vote was 7 to 4 in Madison’s favor.

15

largely meaningless, a mere stylistic change. In the panel

concurrence’s view, the final version of the Clause still

applies only to bills for raising revenue “for the purpose of

revenue,” even though the Convention deleted the words “for

the purpose of revenue.” See Panel Concurrence at 19-20, 24-

25. James Madison thought otherwise. He believed that

deletion of that language mattered substantively. I will go

with James Madison on this one.

Consistent with the text and drafting history of the

Origination Clause, the House of Representatives has long

asserted its Origination Clause prerogative. The House does

so by a practice known as “blue-slipping” a Senate bill. Most

importantly for this case, the House has regularly asserted its

Origination Clause authority against Senate-originated bills

that have the “twofold” revenue-raising and regulatory

purposes identified by Madison. For example, asserting the

Origination Clause, the House has frequently declined to

consider Senate-originated bills that would impose regulatory

taxes and deter or encourage certain activities. See 3 Lewis

Deschler, Deschler’s Precedents of the United States House

of Representatives ch. 13, § 15.5 (1977) (bill using tax

penalties to deter overfishing); id. § 15.3 (bill using tax

exemptions to support the Olympic Games); id. § 15.7 (bill

amending the National Firearms Act); see also H.R. 249,

106th Cong. (1999) (bill that relates to a gun tax).

That history of Congressional practice is relevant here

because, as the Supreme Court has explained, “[l]ong settled

and established practice is a consideration of great weight” in

separation of powers cases. National Labor Relations Board

v. Noel Canning, 134 S. Ct. 2550, 2559, slip op. at 7 (2014)

(quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929))

(alteration in original).

16

It is true that the House may go beyond the Origination

Clause and, as a matter of its own internal rules, require even

non-revenue bills to originate in the House. But that’s not

what was happening in those historical examples. In those

historical examples (and many others), the House expressly

cited and relied on its longstanding interpretation of the

Origination Clause. Under Supreme Court precedent,

Congress’s longstanding constitutional interpretation and

practice does not bind us, but it informs our interpretation.

See Zivotofsky v. Kerry, No. 13-628, slip op. at 20-21 (U.S.

June 8, 2015); Noel Canning, 134 S. Ct. at 2559, slip op at 7.

All of the above seems rather straightforward and a

matter of common sense in demonstrating that the Origination

Clause applies to revenue-raising bills such as the Affordable

Care Act. Indeed, back in 2009, the Senate itself understood

that the Act was a revenue-raising bill and that the

Origination Clause therefore applied to the Act. That is one

reason why Majority Leader Reid introduced the Affordable

Care Act as an amendment to a House revenue bill rather than

as a stand-alone Senate bill.

So how do the Government and the panel opinion reach

the contrary conclusion? The answer, in my respectful view,

is that they incorrectly read the Supreme Court precedents on

the Origination Clause. Those cases have carved out a

narrow exception to the Origination Clause for certain

relatively unusual statutory schemes. The panel opinion

blows that narrow exception up into a giant new exemption

from the Origination Clause, even for obviously revenue-

raising bills such as the Affordable Care Act, which raises

$473 billion in revenue.

The Supreme Court has stated that “revenue bills are

those that levy taxes in the strict sense of the word.” Twin

17

City Bank v. Nebeker, 167 U.S. 196, 202 (1897); Munoz-

Flores, 495 U.S. at 397. The Affordable Care Act levies

numerous such taxes. To be sure, the Supreme Court has

stated that “bills for other purposes which may incidentally

create revenue” are not “Bills for raising Revenue” within the

meaning of the Clause. Id. But those cases did not exempt

from the Origination Clause all laws that have additional or

predominant purposes other than raising revenue. Those

cases did not exempt regulatory taxes from the Origination

Clause. The Supreme Court has been very careful to exclude

from the Origination Clause only those bills that have “no

purpose by the act or by any of its provisions to raise revenue

to be applied in meeting the expenses or obligations of the

Government.” Nebeker, 167 U.S. at 203 (emphasis added)

(tax on banks used to pay for the printing of currency has “no

purpose” to raise general revenue); see also Millard v.

Roberts, 202 U.S. 429, 436-37 (1906) (property tax used to

construct railroad infrastructure has “no purpose” to raise

general revenue) (internal quotation marks omitted); Munoz-

Flores, 495 U.S. at 398-99 (special assessment on convicted

criminals to fund the Crime Victims Fund has “no purpose” to

raise general revenue) (internal quotation marks omitted).

What has the Supreme Court meant in carving out this

exception or limitation? As the Court’s cases reveal, the

critical distinction drawn by the Supreme Court in its

Origination Clause cases is between (i) laws that raise

revenues paid into the general treasury and available for

general governmental uses and (ii) laws that raise revenues

designated for use in a specific program. Laws in the former

category – which encompasses the vast majority of laws that

raise money – are subject to the Origination Clause. Laws in

the latter category are not subject to the Origination Clause.

18

Indeed, the Supreme Court said this explicitly in Munoz-

Flores, its most recent Origination Clause case. The Court

quoted the “bills for other purposes which may incidentally

create revenue” language from Nebeker. Then the Munoz-

Flores Court immediately stated: “The Court has interpreted

this general rule to mean that a statute that creates a particular

governmental program and that raises revenue to support that

program, as opposed to a statute that raises revenue to support

Government generally, is not a ‘Bil[l] for raising Revenue’

within the meaning of the Origination Clause.” Munoz-

Flores, 495 U.S. at 397-98. Munoz-Flores thus tells us

exactly how to interpret the Nebeker “other purposes”

language and what it means. Id. Munoz-Flores

unambiguously understood Nebeker’s exception for “bills for

other purposes which may incidentally create revenue” to

apply to a carefully circumscribed set of cases.

A review of the Court’s older Origination Clause cases

further illustrates the point. In Nebeker, for example, the law

imposed a tax on banks. But the tax was not imposed to raise

revenue for general governmental purposes; rather, the law

imposed the tax “to meet the expenses attending the execution

of the act” – that is, to fund the printing and distribution of

America’s first treasury-backed currency. Nebeker, 167 U.S.

at 202. The Supreme Court concluded that the law therefore

fell outside the scope of the Origination Clause. The statute,

the Court explained, had “no purpose” to raise funds “to be

applied in meeting the expenses or obligations of the

Government.” Nebeker, 167 U.S. at 203. Rather, all of the

funds raised were designated by law to be used to pay the

costs of printing and distributing currency.

In Millard, the Court considered a tax on property in the

District of Columbia. The tax was designated by law solely

to fund railroad infrastructure improvements in the District of

19

Columbia. The Court held that the law imposing the tax was

not subject to the Origination Clause. The Court found that

the arrangement was “‘practically that of a contract’” between

the Government and the railroad companies, in which the

revenues were “but means to the purposes provided by the

act.” Millard, 202 U.S. at 437.

Finally, in Munoz-Flores, the Court relied on Nebeker

and Millard and again reached a similar conclusion. The

Court concluded that a bill that fined convicted criminals and

redistributed those funds to a Crime Victims Fund had “no

purpose” to raise general revenues to be used for general

governmental purposes. Munoz-Flores, 495 U.S. at 398

(internal quotation marks omitted).

For the Court in Munoz-Flores, the essential point, as “in

Nebeker and Millard,” was that the provision at issue raised

money only “as part of a particular program to provide

money for that program.” Id. at 399 (emphases added). To

reiterate, the Munoz-Flores Court summarized the critical

Origination Clause principle as follows: A “statute that

creates a particular governmental program and that raises

revenue to support that program, as opposed to a statute that

raises revenue to support Government generally, is not a

‘Bil[l] for raising Revenue’ within the meaning of the

Origination Clause.” Id. at 398. In other words, under

Munoz-Flores, the Origination Clause does apply to “a statute

that raises revenue to support Government generally.” Id.

The Nebeker-Millard-Munoz-Flores principle applies

only if the law in question designates that the revenues be

used for a specific program. Importantly, the fact that a law

raises revenue to be paid into the treasury to help generally

offset the costs of a new program on the overall federal

balance sheet has never been held to exempt the law from the

20

Origination Clause. Otherwise, to take one example, a

massive income tax increase imposed for the avowed purpose

of offsetting the costs of new wartime efforts against al Qaeda

and ISIS would be exempt from the Origination Clause.

Under the panel opinion, such a tax law would not be subject

to the Origination Clause. What the panel opinion misses is

that many laws that create government programs also raise

revenues, especially given strict congressional “paygo” rules.

But those laws remain subject to the Origination Clause. As

noted above, that was the precise hypothetical Justice

O’Connor raised in Munoz-Flores. She accurately called the

Government’s contention that the Origination Clause would

not apply in such a situation “pretty extreme.”

One scholar has summarized the Court’s case law this

way: If “a statute funds the general treasury instead of a

specific program or service, it has a primary purpose of

raising revenue. Alternatively, if the statute funds a specific

activity or segment, it falls outside the scope of the Clause.”

Rebecca M. Kysar, The ‘Shell Bill’ Game: Avoidance and the

Origination Clause, 91 Wash. U. L. Rev. 659, 674 (2014).

The Origination Clause case law, therefore, “fails to support

judicial inquiry into Congress’s purpose in enacting a statute.

Rather, the Court takes as a proxy that such purpose is non-

revenue-raising when the structure of the statute earmarks

revenues to fund a program it creates.” Id. at 676.

That said, Munoz-Flores had one wrinkle that is

important to understand. The statutory scheme in Munoz-

Flores provided that any contributions to the Crime Victims

Fund in excess of $100 million a year would be transferred to

the general treasury (and thus available for general

governmental purposes), rather than redistributed to crime

victims. The Court responded in two ways. The Court first

swept that scenario aside as one that would rarely occur in

21

practice. See Munoz-Flores, 495 U.S. at 398-99. And the

Court said that, in any event, any such leftover amount would

not be “substantial” and thus was not an Origination Clause

concern:

As in Nebeker and Millard, then, the special assessment

provision was passed as part of a particular program to

provide money for that program – the Crime Victims

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 an excess

in fact materialize. Any revenue for the general Treasury

that § 3013 creates is thus “incidenta[l]” to that

provision’s primary purpose.

Id. at 399. Munoz-Flores therefore reinforced that the

Origination Clause does apply to a bill that raises

“substantial” revenue to be “paid into the General Treasury.”

Id.

The narrow exception identified in Nebeker, Millard, and

Munoz-Flores does not encompass the Affordable Care Act.

The Affordable Care Act imposes a vast array of taxes and

raises significant amounts of revenue that are paid into the

general treasury and available for general governmental uses.

The amount of revenue the Act raises is enormous – $473

billion over 10 years. The Affordable Care Act does not

designate its tax revenues to be used only in particular

programs. Under the relevant Supreme Court precedent,

therefore, as well as the text and history of the Clause, the

Affordable Care Act is a revenue-raising bill subject to the

Origination Clause.

To be sure, some might say that the Nebeker-Millard-

Munoz-Flores line of cases is itself inconsistent with the

22

constitutional text because the laws in those cases did raise

money, even though the money was designated by law for

specific programs. The explanation for those cases seems

straightforward: Here, as in other areas of constitutional law,

the Supreme Court over time has carved out a narrow

exception to (or limitation on) the general constitutional rule.

The Court often does that in constitutional adjudication,

sometimes when there is a compelling governmental interest

in doing so, sometimes when history supports doing so, and

sometimes when the exception is minimal, to take three

common examples. See, e.g., Williams-Yulee v. Florida Bar,

No. 13-1499 (U.S. Apr. 29, 2015).

The fundamental flaw in the panel opinion is that it

transforms that heretofore narrow and rare exception to the

Origination Clause into a broad new exemption. The broad

new exemption created by the panel opinion presumably

covers bills imposing regulatory taxes and many other bills

that raise significant revenue – commonplace bills that all of

the relevant players have previously understood to be subject

to the Origination Clause. After all, if the panel opinion’s

new exemption applies to a law that raises $473 billion in

revenue, it surely will cover lots of other bills that previously

would have been thought to come within the Origination

Clause.

Put simply, using the narrow Munoz-Flores exception to

exempt the $473 billion Affordable Care Act from the

Origination Clause is a textbook example of missing the

forest for the trees.

To sum up so far: The Government and the panel opinion

have gone astray in concluding that the Affordable Care Act

is not a revenue-raising bill under the Origination Clause.

The panel opinion is wrong on that point, and wrong in a way

23

that, if followed, would degrade the House of

Representative’s constitutional prerogative to originate

revenue-raising bills. Sissel’s en banc petition says it well:

“The panel’s ‘purposive approach’ all but guts the Origination

Clause by effectively enabling the Senate to originate tax bills

that might have some broader social purpose.” Petition for

Rehearing En Banc at 2. In light of the importance of this

issue to our constitutional structure and to the individual

liberty protected by that structure, I would grant rehearing en

banc to vacate the panel opinion’s flawed and consequential

Origination Clause holding. 5

III

Although the Affordable Care Act is a law for raising

revenue and therefore was subject to the Origination Clause,

the Act did in fact originate in the House, as required by that

Clause. For that reason, I would reject Sissel’s Origination

Clause claim.

To recap: On October 8, 2009, the House passed H.R.

3590, originally called the Service Members Home

Ownership Tax Act of 2009. The Senate then amended that

5

As explained above, the Origination Clause inquiry focuses

on the entire law. If any provision of the law raises revenue for

general governmental purposes, then the Origination Clause

applies. But even if the relevant Origination Clause inquiry

focused only on a particular provision of the law, rather than on the

law as a whole, the tax on individuals who do not have insurance

(known as the individual mandate) alone was forecast to raise

massive amounts of revenue, approximately $4 billion a year by

2017. National Federation of Independent Business, 132 S. Ct. at

2594, slip op. at 33. Therefore, the individual mandate itself is a

revenue-raising provision.

24

bill, substituting the text of what became the Affordable Care

Act for the text that had been passed in the House.

Sissel contends that the Senate’s amendment substituting

the Affordable Care Act for the text of the Service Members

Home Ownership Tax Act “was not a lawful ‘amendment’ of

H.R. 3590 as required by the Origination Clause” because it

was not “‘germane to the subject matter of the [House] bill.’”

Appellant’s Br. 21 (quoting Flint v. Stone Tracy Co., 220 U.S.

107, 143 (1911)).

Sissel’s claim is unavailing. The Origination Clause

imposes no germaneness requirement on the Senate when it

amends revenue-raising bills that originated in the House.

That is apparent from the text, history, and precedent of the

Origination Clause. 6

6

H.R. 3590 modified the first-time homebuyer tax credit for

service members, increased the pre-payment amount for corporate

taxes, and increased the tax penalty for failing to file certain

corporate tax returns. H.R. 3590 (as passed by the House on

October 8, 2009). The Joint Committee on Taxation estimated that

several provisions of H.R. 3590 would raise significant revenue.

See Joint Committee on Taxation, Estimated Revenue Effects of

H.R. 3590, the “Service Members Home Ownership Tax Act of

2009” (Oct. 6, 2009). As noted above, see pages 19-20, if a bill

raises revenue, the Origination Clause applies, even if the overall

bill is deficit neutral. So it was in the original H.R. 3590. But what

happens when the original House-passed bill does not contain any

revenue-raising provisions at all? Can the Senate amend such a bill

to add revenue-raising provisions? Under the prevailing view, the

original House-passed bill must itself contain revenue-raising

provisions in order for the Senate to permissibly add revenue-

raising provisions through its amendment process. See James V.

Saturno, Congressional Research Service, The Origination Clause

25

To begin with, the germaneness requirement that Sissel

urges is inconsistent with the text of the Origination Clause.

The Origination Clause permits the Senate to “propose or

concur with Amendments as on other Bills.” U.S. Const. art.

I, § 7, cl. 1 (emphasis added). The text of the Origination

Clause therefore grants the Senate as much authority to

amend revenue bills as it grants the Senate to amend other

bills. There is no general germaneness requirement when the

Senate amends other House bills. It follows that there is no

germaneness requirement when the Senate amends revenue

bills. “As on other Bills” means “As on other Bills.”

The language permitting Senate amendment of revenue

bills was critical, moreover, to the Constitutional Convention.

In early English practice, revenue bills had to originate in the

House of Commons, and the House of Lords could not amend

those revenue bills. By contrast, after Independence in 1776,

several of the new American States departed from English

practice by allowing the upper houses of their states’

legislatures to amend revenue bills. The Constitutional

Convention followed the latter model and allowed Senate

amendments to House-originated revenue bills. See 1 David

K. Watson, The Constitution of the United States: Its History

Application and Construction 342-43 (1910); S. Rep. No. 42-

146, at 3 (1872) (contrasting the “strict[]” amendment

of the U.S. Constitution: Interpretation and Enforcement, at 6

(March 15, 2011). But this case does not require a definitive

judicial answer to that question because the original House bill here

in fact contained revenue-raising provisions. One related note: In

practice, Congress seems to broadly apply the Origination Clause to

all revenue-affecting bills because of the potential difficulty of

determining whether a tax bill raises or reduces revenues. Id. at 4.

But the House bill here was clearly revenue-raising, so we need not

explore that issue further.

26

limitations on the House of Lords with the expansive

amendment power “our fathers provided” to the Senate).

The language permitting broad Senate amendments was

not an accident but instead was a deliberate and considered

decision at Philadelphia. The delegates initially considered

language that would not have allowed Senate amendment of

revenue bills. 1 The Records of the Federal Convention of

1787, at 524-25 (July 5, 1787) (Max Farrand ed., 1911). But

after debate, the delegates provided for a broad Senate

amendment power. One delegate, Elbridge Gerry, later

lamented that the broad Senate amendment power weakened

the force of the Clause. 3 id. at 265. During the Virginia

ratification debates, William Grayson similarly complained

that the Senate’s amendment power constituted a de facto

power to originate revenue bills because it would allow the

Senate to delete all the language of a House bill and substitute

entirely new language. 3 The Debates in the Several State

Conventions on the Adoption of the Federal Constitution 377

(Jonathan Elliot ed., 1881). No doubt Gerry and Grayson

were right to perceive that the Senate’s broad amendment

power would weaken the force of the Clause. But courts must

respect the Constitution’s text. And the relevant text gives

the Senate a broad amendment power.

Consistent with the Constitution’s text, moreover,

Congress’s longstanding practice has been to permit Senate

amendments of exactly the kind at issue here, in which the

Senate essentially guts the House bill and replaces the House

language with Senate language. See Thomas Jefferson, A

Manual of Parliamentary Practice, For the Use of the Senate

of the United States § 35, at 107 (Davis & Force 1820) (1801)

(“Amendments may be made so as totally to alter the nature

of the proposition,” and entirely new propositions can be

“ingrafted by way of amendment on the words ‘Be it

27

enacted.’”); S. Rep. No. 42-146, at 3 (When “a bill for raising

revenue has originated in the House, no limitation is placed

by the Constitution upon the power of the Senate to amend it .

. . . The exclusive prerogative of the House of

Representatives in relation to such bills is simply to originate

them.”).

That historical practice has continued to the present day.

There are many modern examples of so-called “gut and

replace” legislation. See, e.g., American Taxpayer Relief Act

of 2012, Pub. L. No. 112-240, 126 Stat. 2313 (2013);

Emergency Economic Stabilization Act of 2008, Pub. L. No.

110-343, 122 Stat. 3765 (2008); Tax Reform Act of 1986,

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

That historical practice matters. See National Labor

Relations Board v. Noel Canning, 134 S. Ct. 2550, 2559, slip

op. at 7 (2014) (historical practice “‘is entitled to great regard

in determining the true construction of a constitutional

provision the phraseology of which is in any respect of

doubtful meaning’”) (quoting The Pocket Veto Case, 279 U.S.

655, 689 (1929)).

Most importantly for us as a lower court, the relevant

Supreme Court case law forecloses the germaneness

requirement advanced by Sissel. In Rainey v. United States,

232 U.S. 310 (1914), the Supreme Court concluded that there

was no germaneness requirement on Senate amendments to

revenue bills. In that case, the Senate had amended a House-

originated tariff bill to include a new tax on foreign-made

yachts. Id. at 315-17. The Court stated: “Having become an

enrolled and duly authenticated Act of Congress, it is not for

28

this Court to determine whether the amendment was or was

not outside the purposes of the original bill.” Id. at 317. 7

Rainey is squarely on point and has never been overruled.

That decision resolves the germaneness issue in this case in

favor of the Government.

To overcome Rainey, Sissel cites a pre-Rainey case, Flint

v. Stone Tracy Co., 220 U.S. 107, 143 (1911). In upholding

the law there against an Origination Clause challenge, Flint

noted that the amendment enacted in the Senate “was

germane to the subject-matter of the bill and not beyond the

power of the Senate to propose.” Id. But the Flint Court did

not draw any legal conclusions from that description of the

bill. Therefore, Flint may not properly be read to impose a

judicially enforceable germaneness requirement, especially in

light of Rainey’s later rejection of just such a requirement.

In short, notwithstanding the Senate’s amendment, the

Affordable Care Act originated in the House.

IV

Before closing, a few final comments:

Some understandably say that allowing the Senate to

exercise such a broad amendment power over revenue-raising

7

If Senate rules imposed a germaneness requirement for all

amendments to legislation, would such a germaneness requirement

then be enforceable under the Origination Clause, notwithstanding

Rainey, given that the Clause says that the Senate may amend

revenue bills “as on other Bills”? We need not confront that

question here because there is no such Senate rule imposing a

general germaneness requirement for amendments.

29

bills greatly diminishes the force of the Clause and makes the

Origination Clause unimportant. There are two responses to

that observation. First, as judges, we have no choice but to

respect the text, history, and precedent of the Clause, which

plainly grant the Senate a broad amendment power. Courts

do not have authority to redesign the constitutional structure

as we might like it. To make such structural changes, there is

a constitutional amendment process – one that has been

utilized to make major changes to the original design. Cf.

U.S. Const. amends. 12, 14, 17, 20, 22, 25; see generally

Arizona State Legislature v. Arizona Independent

Redistricting Commission, No. 13-1314 (U.S. June 29, 2015)

(Roberts, C.J., dissenting); Akhil Reed Amar, America’s

Constitution: A Biography 285-99, 313-463 (2005). Second,

although the Senate’s amendment power no doubt

significantly weakens the potential force of the House’s

origination power, the House’s first-mover authority still

gives it substantial control over tax legislation, as Madison

explained and as history has borne out. In the real world, the

House’s exclusive origination power matters. See generally

Adrian Vermeule, The Constitutional Law of Congressional

Procedure, 71 U. Chi. L. Rev. 361, 424-25 (2004). To say

that the House’s origination power is less than it could have

been is not to say that the House’s origination power is

meaningless.

Some might respond, however, that even accepting the

general importance of the Origination Clause, the panel

opinion is no big deal because the House of Representatives

has the power to protect itself from the consequences. It is

true that the House may go beyond the text of the Origination

Clause and, as a matter of its own rulemaking powers, require

even non-revenue bills to originate in the House – or else not

pass the bills. Article I, Section 5, Clause 2 of the

Constitution guarantees that “Each House may determine the

30

Rules of its Proceedings.” The House and Senate of course

may not disregard the Origination Clause or subtract from its

requirements. But as part of their own rules or practices, they

may insist on further requirements beyond what the

Origination Clause demands.

But there are at least three problems with relying on the

House’s self-help power as a basis for downplaying the

consequences of the panel opinion.

First, that suggestion is almost akin to saying that the

Origination Clause is a political question that Congress can

sort out without judicial intrusion. But the Supreme Court

concluded otherwise in Munoz-Flores. See United States v.

Munoz-Flores, 495 U.S. 385, 396 (1990). There, as the Court

noted, the Government argued “that the House has the power

to protect its institutional interests by refusing to pass a bill if

it believes that the Origination Clause has been violated.” Id.

at 392. The Court rejected the Government’s political

question argument. The Court explained that judicial policing

of the Origination Clause furthers individual liberty by

safeguarding the people from excessive taxation. See id. at

394. In separation of powers cases, the Court does not just

defer to the political branches. See generally Zivotofsky v.

Kerry, No. 13-628 (U.S. June 8, 2015); Marbury v. Madison,

5 U.S. 137 (1803). It is not acceptable for courts to outsource

preservation of the constitutional structure to the political

branches.

Second, getting it right as a court is important because

the House (now or in the future) could just roll over and

acquiesce to the flawed panel opinion. But wouldn’t such

House acquiescence be acceptable from a separation of

powers perspective? Not to the Supreme Court. The Court

has made clear that even acquiescence by a political branch in

31

its own unconstitutionally diminished power still does not

justify judicial tolerance of a separation of powers violation.

Landmark cases such as Clinton v. City of New York, 524

U.S. 417 (1998), and Free Enterprise Fund v. Public

Company Accounting Oversight Board, 561 U.S. 477 (2010),

illustrate the point. As those cases explain, the constitutional

structure is not merely a matter of etiquette but protects

individual liberty. In justiciable cases, courts must enforce

the Constitution’s structural protections even when the

affected Branch does not. Cf. Free Enterprise Fund, 561 U.S.

at 497 (“Perhaps an individual President might find

advantages in tying his own hands. But the separation of

powers does not depend on the views of individual Presidents,

nor on whether the encroached-upon branch approves the

encroachment.”) (citation and internal quotation marks

omitted).

Third, judicial decisions – such as the panel opinion in

this case – commonly establish a baseline that affects

congressional rules, negotiations, and ultimately legislative

results, as those who have labored on the Hill can readily

attest. So a flawed judicial decision will often influence the

give-and-take of congressional practice. To say that the

House can work around the flawed panel opinion is to ignore

the reality of how a flawed judicial decision can affect the

negotiations by which that corrective process occurs.

* * *

To read my opinion so far, you might wonder whether I

think the world will end not in fire, or in ice, or in a

bankruptcy court, but in an Origination Clause violation. 8 I

8

See Wellness International Network, Ltd. v. Sharif, No. 13-

935, slip op. at 17 (U.S. May 26, 2015) (“To hear the principal

32

of course realize there are more important constitutional

issues. This case is not Marbury v. Madison redux. But the

case is still quite important.

Although the panel opinion reached the correct bottom-

line result, the panel opinion’s interpretation of the

Origination Clause is incorrect, in my respectful view. The

panel opinion alters the longstanding balance of power

between the House and Senate, and ultimately affects

individual liberty. We should correct the panel opinion’s

error now rather than let it linger and metastasize. I would

grant rehearing en banc, vacate the panel opinion, and rule for

the Government on the ground that the Affordable Care Act

originated in the House and thereby complied with the

Origination Clause.

dissent tell it, the world will end not in fire, or ice, but in a

bankruptcy court.”).