Wednesday, December 01, 2010

"Bill for Raising Revenue" bleg

Mark Tushnet

Someone originated the idea that the Senate's version of the food safety bill might be unconstitutional (presumably if adopted without change by the House) because it contains some revenue-raising provisions. That, it's been said, violates the Origination Clause, which provides that all bills for raising revenue must originate in the House. The case law gives an extremely narrow reading of the term "bill for raising revenue," and the Constitution also allows the Senate to "propose amendments as on other bills." (A revenue-raising provision that's incidental to a regulatory program, for example, is not a "bill for raising revenue" under precedents dating from 1887 to 1990. And, it's apparently the accepted wisdom that if a bill for raising revenue originates in the House, the Senate can amend the bill by striking everything after the "Be it hereby enacted" and substituting its own revenue-raising provisions.)

So, here's the bleg: What is it about what the Senate did that falls outside these rules? Did it insert a provision raising revenue for general governmental purposes rather than for the special purpose of the food safety statute? Was the food safety bill first adopted by the Senate with a revenue-raising provision and then amended by the House so that it had to be adopted again in Senate? (That seems implausible from the reporting about the bill.) I'm genuinely in the dark on this, don't have the time to plow through the legislation, and haven't found any news stories adequately describing the problem in terms that are useful in trying to figure out the argument against the Senate's action.

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