What We Want – Part IX

By: Richard A. Correa Sr. SGT RIARNG, Retired

The current debate on Obamacare has led to the public, in the form of the TEA Parties, 9/12 ers and other interested citizens, to raise questions about how our legislative process works, and how it is supposed to work. We have seen the House of Representatives ‘create’ (notice I didn’t say ‘write’, which will be the topic of another offering) three bills which we assume morphed into the one passed by the house and the US Senate ‘create’ two bills that ‘merged’ into what the senate passed. The two bills are now undergoing the ‘reconciliation’ process, another process that is coming under intense scrutiny.

There are many problems with each of these bills, including the increase in existing taxes and the addition of new taxes that are contained in them. As many of these new taxes and tax increases are in the senate bill and not the house bill, the question ‘is this constitutional’ is being asked by many people.

Article I, Section 7 of the US Constitution states:

“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.”

Some may conclude that this provision of the US Constitution has indeed been violated by the process followed by the senate. Others will point out that the senate has been doing this for as long as the constitution has been in existence.

The senate even has a name for the product of this process; it is called a ‘Vapor’ or ‘Ghost’ bill.

The supporting argument for following this process is that this allows the senate to create its’ own version of legislation on an important issue and it speeds up the legislative process so that needed laws can be passed ‘faster’. They further point out that he US Supreme Court has made a decision (Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897)) that says doing this is constitutional.

But does this meet the intention of the founders on how raising taxes should be done?

James Madison said in Federalist Number 58:

“This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any Constitution can arm the immediate representatives of the people.”¹

It is obvious from this statement that James Madison, the father of the constitution, felt very strongly that keeping the power to raise taxes in the US House of Representatives was essential for the people to be able to control the taxation placed upon them and to control the spending the federal government does in their name. It can also be construed from this that this clause of the US Constitution clearly places responsibility for increases in taxation and spending on the heads of the members of the House of Representatives, the elected body with the shortest term in office, so the people can remove from office those that abuse this power as quickly as the law allows, and replace them with people that will be more responsible with the peoples money.

From the language of Article I, Section 7 of the US Constitution and the above one can draw the conclusion that the founders intent was that any bill that raises taxes should start in the House of Representatives and the US Senate must wait for the bill to be forwarded from the house to the senate before they can take any action on it, and those actions are limited to amending the bill from the house and they could not write their own bill on the issue. As there appears to be no further discussion of the topic in the Federalist papers, or the other writings of the founders’, one can say the topic was understood by all, and there was no disagreement on the subject.

As recently as 1990 it seems the US Supreme Court is also in agreement with the strict interpretation of this clause in the US Constitution. In the US Supreme Court decision in United States v. Munoz-Flores the court stated:

“In the case of Bills for raising Revenue, § 7 [of the U.S. Constitution] requires that they originate in the House before they can be properly passed by the two Houses and presented to the President.  . . . The principle that the courts will strike down a law when Congress has passed it in violation of such a command has been well settled for almost two centuries.”²

However, if you look back a little over 100 years before the United States v. Munoz-Flores the US Supreme Court appears to be schizophrenic on the subject. In the US Supreme Court decision in Twin City Bank v. Nebeker:

“Revenue Bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue.”³

And this interpretation of the process is in fact the problem. From this interpretation the senate can come up with its’ own bills that raise taxes on the people with out restriction by making those tax increases ‘incidental’ to the purpose of the legislation. The fact that the senate has the longest term for elected officials under our federalist system exacerbates the problem. This is clearly a deliberate circumvention of the intended process when it comes to raising revenue and taxes and, though it does not violate the ‘letter’ of the law, it clearly violates the ‘spirit’ of the law.

Many will say the senate has always worked this way or it’s OK, or why would we want to change this now? We should force them to follow the process correctly because every successful attempt to circumvent the intended process in the constitution is how people usurp power from where it belongs and transfers that power to where it was never intended to be. It sets precedents that make it alright to not follow the supreme law of the land and validates the attitude that congress can do whatever it wants and it does not have to abide by the constitutionally set boundaries on the power they are allowed to exercise. In essence, allowing this to continue institutionalizes disobeying the law.

Some will say that to enforce this will inhibit the senates’ ability to; legislate that is completely false. The senate would still be able to add amendments to any legislation that originated in the house, adding or removing taxes as they see fit. But, enforcing this would make the process more ‘transparent’ and it would make it harder to hide the added taxes, which is always to the publics’ advantage.

So how would changing this benefit you? Whenever any legislation is being considered that raises revenue for the federal government, increases the rate of an existing tax or adding a new tax it will have to originate in the US House of Representatives and no ‘parallel’ bill on the same issue could be generated in the US Senate. As we TEA Partiers/9/12 ers are political animals, and are now in the habit of watching the shenanigans of the congress, we could all focus on what is happening in the house without having to be concerned with watching the senates’ activities at the same time. Support for or against the new revenue measures will be directed at our representatives, without having to direct any effort toward the senate, yet. This will increase the effectiveness of the pressure we place on the members of the house because they won’t be able to misdirect our attention to the senate.

Once the bill reaches the senate it will be easier to see who is trying to pick out pockets as the senate will be limited to amending the bill from the house, not creating their own bill. As amendments to a bill by their nature are smaller it will be harder to ‘hide’ new taxes and tax increases, as well as who made the amendment and who voted for these new taxes making senators more vulnerable for their actions.

So what do we want? We want the Congress of these United States to adhere to the spirit, as well as the letter, of Article I, section 7 of the US Constitution.

¹ The Federalist No. 58, p. 359 (C. Rossiter ed. 1961)

² Munoz-Flores, 495 U.S. at 398 (1990)

³ Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897)