The Origination Clause

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.

—Andy Grewal

Introduction

In the bicameral British Parliament, bills to raise revenue could originate only in the House of Commons and not in the House of Lords.¹ After the United States achieved independence, several state constitutions followed this model and permitted only the more populous house to originate tax measures. Under the Articles of Confederation, the unicameral federal legislature had no power to impose taxes on people; the legislature could only submit requests, or requisitions, to the states. The Constitution follows the English model: Revenue bills must originate in the House of Representatives, although the Senate can adopt amendments to those bills. The Origination Clause has been enforced principally through the legislature rather than through the courts.

History Before 1787

Pre-ratification practices among the states were influenced by the practice of the British Parliament, in which tax legislation could be introduced only by the House of Commons.² Delaware’s constitution mandated that “[a]ll money-bills for the support of government shall originate in the House of Assembly [Delaware’s lower house], and may be altered, amended or rejected by the Legislative Council [Delaware’s upper house].”³ Other states had similar origination requirements for tax legislation, and in some cases did not even allow the upper house to amend that legislation.⁴ In Virginia, for example, the upper house could only accept or reject “money-bills” in their entirety.⁵

The Articles of Confederation established a unicameral legislature with authority to seek revenue from the states.⁶ Without a division in the structure of Congress, there was no need to consider where revenue bills could originate.

The Constitutional Convention

During the Constitutional Convention, the Origination Clause took a winding path to approval, with only a minority of delegates expressing initial support.⁷ The initial draft was introduced by Elbridge Gerry of Massachusetts on July 5.⁸ This version gave the House substantial authority over financial matters. Under Gerry’s proposal, all “bills for raising or appropriating money” would originate in the House.⁹ The Senate would not even have the power to amend those money-related bills.

Gerry’s draft drew from his concerns that Senators would be disconnected from the people. Under the Constitution, Representatives would be elected by the people for two-year terms, but Senators enjoyed six-year terms and appointment through legislatures.¹⁰ “It was a maxim,” Gerry said, “that the people ought to hold the purse-strings.”¹¹

Skeptics like Thomas Pinckney of South Carolina expressed concerns about Gerry’s proposal. Pinckney feared there would be “pernicious disputes” between the Senate and the House over taxation.¹² On August 13, Edmund Randolph of Virginia moved that the Origination Clause “be altered so as to read: ‘Bills for raising money for the purpose of revenue, or for appropriating the same, shall originate in the House of Representatives.’”¹³ James Madison of Virginia objected to the ambiguity over what counted as a bill for raising revenue. He noted that bills may have multiple purposes and that often “no line could be drawn” between revenue bills and non-revenue bills, especially in the case of economic trade legislation.¹⁴

The Convention ultimately reached a compromise on September 8.¹⁵ Edmund Randolph of Virginia introduced what would become the final version of the Origination Clause.¹⁶ This provision gave the House the sole power to originate bills for “raising Revenue,”¹⁷ but all other money-related bills could originate in either house. Additionally, the Senate would enjoy the power to “propose or concur with Amendments” to bills raising revenue.¹⁸

Some delegates doubted whether the Origination Clause would serve any meaningful purpose.¹⁹ James Wilson of Pennsylvania observed that “[i]f both branches were to say yes or no, it was of little consequence which should say yes or no first.”²⁰ However, by giving authority over revenue to the House, where the large states had greater influence than they did in the Senate, the clause helped the Convention to reach a critical compromise between large and small states.²¹

The Ratification Debates

During the Convention, James Madison did not support the Origination Clause. Later, though, he would embrace its breadth. In Federalist No. 58, Madison remarked that the House “alone can propose the supplies requisite for the support of government.” He contended that this “power over the purse” could be “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

Gerry, by contrast, voiced his concerns about the clause. He observed that his Convention committee proposed a strict origination rule. That strict rule would not allow the Senate to alter or amend revenue measures.²² Without alterations or amendments in the Senate, the small states could not “take money from the pockets of [large states].”²³ The committee would have “never . . . agreed,” said Gerry, to equal representation in the Senate without a strict origination rule.²⁴ Gerry maintained that he “never consented” to the final version of equal state representation in the Senate, which allowed amendments to revenue bills.²⁵

Other Anti-Federalists expressed similar concerns about the Senate’s power to amend revenue bills. George Mason of Virginia criticized the amendment power. Mason lamented that the Senate would have “the power of altering all money bills” even though Senators were not “the representatives of the people or amenable to them.”²⁶ The Constitution also did not define the term “revenue bill.” Luther Martin of Maryland argued that the Origination Clause would lead to “dispute and controversy between the two branches” over “what are or are not revenue bills.”²⁷

Early Practice

In 1807, the Senate passed amendments that would have expanded a revenue bill.²⁸ Subsequently, the House rejected those amendments. Representative John Randolph of Virginia stated that the Senate had tried to amend the bill “so as to affect the quantum of tax, or the object of taxation.”²⁹ To Randolph, the Senate’s amendment power under the Origination Clause was limited to the “details of the bill,” and the Senate could not change its “leading principles.”³⁰

Since the House’s rejection of the 1807 amendments, the Senate has respected the House’s authority to originate revenue legislation. In 1830, Senator Thomas Hart Benton of Missouri introduced a bill that would have abolished some taxes, but he later withdrew the bill after questions arose about whether such a measure could properly originate in the Senate.³¹ In 1831, Senator Benton was denied leave to introduce a bill that would have reduced taxes on salt. The debates revealed concerns about the Senate’s authority to originate revenue legislation.³²

Judicial Precedent

The Supreme Court has never determined that legislation violated the Origination Clause, but it has preserved its authority to make that determination. United States v. Munoz-Flores (1990) held that a challenge under the Origination Clause presented a justiciable question, rather than a political one beyond the Court’s jurisdiction.³³

The Court has understood the substance of the Origination Clause somewhat narrowly. United States v. Norton (1875) held that the term “bills for raising revenue” was “confined to bills to levy taxes in the strict sense of the words” and did not “extend to bills for other purposes which incidentally create revenue.”³⁴ Thus, a bill can have revenue effects but nonetheless originate in the Senate.

Open Question

The House has occasionally claimed that the Origination Clause applies not only to revenue measures, but also to appropriations (spending) measures.³⁵ In 1856, Senator William Seward observed that “the Senate has never originated an appropriations bill, but . . . it has always conceded to the House of Representatives the origination of appropriations bills.”³⁶ Whether the Origination Clause applies to appropriations measures has generated considerable debate and study within Congress.³⁷

1. Robert G. Natelson, The Founders’ Origination Clause and the Implications for the Affordable Care Act, 38 Harv. J.L. & Pub. Pol’y 629, 649 (2015). ↩︎
2. Natelson, supra at 649. ↩︎
3. Del. Const. of 1776, art. VI. ↩︎
4. Md. Const. of 1776, art X; N.H. Constitution of 1776; S.C. Const. of 1776, art. VII. ↩︎
5. Va. Const. of 1776. ↩︎
6. Articles of Confederation, art. II & VIII. ↩︎
7. Rebecca M. Kysar, On the Constitutionality of Tax Treaties, 38 Yale J. Int’l L. 1, 8 (2013). ↩︎
8. 1 Farrand’s 524. ↩︎
9. Id. ↩︎
10. 2 Farrand’s 274. ↩︎
11. 1 Farrand’s 233. ↩︎
12. 5 Elliot’s 189. ↩︎
13. Id. at 414. ↩︎
14. Id. at 417. ↩︎
15. 2 Farrand’s 545. ↩︎
16. Id. at 273. ↩︎
17. Id. at 654. ↩︎
18. Id. at 654. ↩︎
19. 1 Farrand’s 543–45. ↩︎
20. Id. at 544. ↩︎
21. 3 Farrand’s 265; Chris Land, The Origination Clause’s Missing Piece, 87 Tenn. L. Rev. 933, 943–45 (2020). ↩︎
22. 3 Farrand’s 265. ↩︎
23. Id. ↩︎
24. Id. ↩︎
25. Id. at 267. ↩︎
26. George Mason’s “Objections to This Constitution of Government” September 1787, National Archives, https://perma.cc/Q6U8-2DQX. ↩︎
27. 3 Farrand’s 202. ↩︎
28. 2 Hinds’ Precedents § 1481 (1907). ↩︎
29. 16 Annals of Cong. 630. ↩︎
30. Id. ↩︎
31. 2 Hinds’ Precedents § 1482. ↩︎
32. Id. at § 1483. ↩︎
33. 495 U.S. 385 (1990). ↩︎
34. 91 U.S. 566, 569 (1875). ↩︎
35. James V. Saturno, Cong. Rsrch. Serv., R46558, The Origination Clause of the U.S. Constitution: Interpretation and Enforcement 12 (2011). ↩︎
36. Cong. Globe, 34th Cong., 1st Sess. 376 (1856). ↩︎
37. Saturno, at 13–14. ↩︎