At Forbes, Trevor Burrus: No Taxation Without Representation: How A Fundamental American Principle Is A Technicality To The New York Times (responding to this editorial in the New York Times).  From the introduction:

The Origination Clause was included in the Constitution to ensure that the body that taxed the people, the House of Representatives, was also the most accountable to the people. It was so important to the Convention that its exclusion would have “unhinged the compromise,” in the words of George Mason of Virginia. It was also included because the Founders firmly believed that taxation was illegitimate unless it came from the people’s direct representatives.

Plus this:

During the Constitutional Convention, all or part of seven days, or 8 percent of the 89 total session days, were devoted to the Origination Clause. In James Madison’s notes on the Convention, which are famously incomplete, he devoted nearly 8000 words to debates over the Origination Clause.

Via Randy Barnett at Volokh Conspiracy, where there’s an interesting exchange in the comments:

[comment by Bernard11]:  Neither here nor on the other recent thread has anyone offered an explanation as to why the House could not stop the Senate from imposing onerous taxes if there were no Origination Clause.    The House can always vote down a bill it doesn’t like, no matter where it originated.     Burrus’ article may have some interesting history, but his logic is nonsense. … Origination Clause or not, no tax can be imposed without the approval of the House, where the people are presumably represented. And of course this was true even when Senators were chosen by state legislatures.

[response by commenter Tenth Justice]: The Origination Clause is less about giving the House the power to stop revenue bills (which they already have), and more about giving them an advantage in negotiations. The House decides when the Senate will be able to take up the question, and what the bill they’ll debate initially looks like. That’s not a huge advantage, but isn’t small either. Basically, the Framers always saw the House as the one that should drive revenue debates, and that’s still true today to a large extent.  …

The response seems correct to me, and it connects with political science theory on the significance of agenda setting.  Suppose, for example, that the country faces a deficit crisis; the Senate thinks an immediate massive tax increase coupled with spending cuts in the future is the right solution.  The House is opposed to all tax increases.  Is the House in a stronger position if the tax increase must originate in the House?  I think so, although as “Bernard11” says, that’s not obvious.  With an origination clause, the House can refuse to initiate a tax bill; without an origination clause, the House can vote down a tax bill approved by the Senate.  The result is the same.

But practically it may be much easier to refuse to initiate a tax bill than it is to vote down one that has already taken full form and passed the Senate (and, let’s suppose, has the President’s support as well).  In the latter case, the Senate has set the agenda with a proposal that “solves” the crisis.  The House will appear obstructionist and “extremist” in refusing to go along; further deterioration in the nation’s financial situation will be blamed on House members who prevented the proffered solution.  In contrast, if the Senate cannot pass a tax bill to begin with, the debate over using taxes to solve the crisis will remain abstract.  No one will know what the Senate might approve, if anything.  There will not be a specific proposal around which momentum might build, and the House’s obstructionist role will be less apparent.

“Bernard11” responds to “Tenth Justice”:

That’s the closest thing to an exp[lana]tion I’ve heard, but it’s pretty unconvincing. Bills don’t just spring from the foreheads of legislators. The ideas are usually much discussed beforehand and there is nothing barring Senators or Presidents from participating. Indeed, they often propose legislation which will be first formally introduced in the House, without having, in any substantive way, “originated” there.     Indeed, many revenue bills have both Senate and House sponsors. Bradley-Gephardt anyone? And common usage supports this. We often refer to changes in the tax laws by the name of the President who proposed them, and rightly so, since whatever the formalities they reflect the policy of the President, not the House. Reagan tax cuts, Bush (1)  tax increase, etc.     So in fact the House does not set the terms of the debate. The Origination Clause really is just a formality. …

I agree it’s a formality when there’s broad agreement, but when there’s not broad agreement is when it matters.  To be sure, it is a relatively modest enhancement of the House’s power, but in my deficit crisis hypothetical I’m confident the House would be happy to have it

Here’s another way to think about it.  Suppose the Constitution provided instead that tax bills were the sole responsibility of the House, and the Senate had no role in them at all.  Of course this would make it easier for the House to pass a tax bill — but would it also make it easier for the House to prevent a tax bill from being passed (as compared to a situation in which it could vote down a tax bill passed by the Senate)?  I think clearly yes, because the power to set the agenda regarding taxes is now so strongly controlled by the House.  The origination power can be seen as just a milder version of the sole-control structure.

And if origination power would give the House some meaningful leverage in tax matters, one should not read the Senate’s power to “concur with Amendments” to wholly undo it (as is argued in the current litigation).   The origination clause really would be a technicality if its only effect is to sometimes require the Senate, when originating a tax bill, to embed it in the shell of a non-tax bill that previously passed the House.  If there’s a way to read a constitutiounal clause that gives it some (albeit limited) practical force and a way that gives it no practical force at all, the former should be preferred.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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