The Origination Clause of the U.S. Constitution: Interpretation and Enforcement
The Origination Clause of the U.S. Constitution:
Interpretation and Enforcement
Updated June 17, 2008
James V. Saturno
Specialist on the Congress and Legislative Process
Government and Finance Division
The Origination Clause of the U.S. Constitution:
Interpretation and Enforcement
Article I, Section 7, clause 1 of the U.S. Constitution is known as the
Origination Clause because it provides that “All Bills for raising Revenue shall
originate in the House of Representatives.” The meaning and application of this
clause has evolved through practice and precedent since the Constitution was drafted.
The Constitution does not provide specific guidelines as to what constitutes a
“bill for raising revenue.” This report analyzes congressional and court precedents
regarding what constitutes such a bill. The precedents and practices of the House
apply a broad standard and construe the House’s prerogatives broadly to include any
“meaningful revenue proposal.” This standard is based on whether the measure in
question has revenue-affecting potential, and not simply whether it would raise or
lower revenues directly. As a result, the House includes within the definition of
revenue legislation not only direct changes in the tax code, but also any fees paid to
the government that are not payments for a specific service, and any change in import
restrictions, because of the potential impact on tariff revenues. The precedents of the
Senate reflect a similar understanding. The Supreme Court has occasionally ruled
on Origination Clause matters, adopting a definition of revenue bills that is based on
two central principles that tend to narrow its application to fewer classes of
legislation than the House: (1) raising money must be the primary purpose of the
measure, rather than an incidental effect; and (2) the resulting funds must be for the
expenses or obligations of the government generally, rather than a single, specific
Second, this report describes the various ways in which the Origination Clause
has been enforced. Given the fact that originating revenue measures is the House’s
prerogative, it falls to the House to enforce this provision of the Constitution most
frequently. The House’s primary method for enforcement is through a process
known as “blue-slipping.” Blue-slipping is the term applied to the act of returning
to the Senate a measure that the House has determined violates its prerogatives. This
is done by voting on a privileged resolution. Less typically, the House may choose
to enforce its prerogative by taking no action on the disputed Senate measure, or
referring it to committee. The Senate may also address whether a measure
contravenes the Origination Clause. As with any question of constitutionality, it may
be submitted directly to the Senate for its determination. Such a question would be
debatable and decided by majority vote. The Supreme Court has a role in enforcing
the Origination Clause as well, as it would in any question of constitutionality.
Finally, this report looks at the application of the Origination Clause to other
types of legislation. It examines precedents concerning public debt legislation, as
well as the unanswered question of whether the Origination Clause grants the House
the exclusive prerogative to originate bills to appropriate money, as well as to raise
This report will be updated to reflect any changes in practice.
In troduction ......................................................1
The Constitutional Convention and the
Interpreting the Origination Clause....................................3
The Supreme Court............................................8
Enforcing the Origination Clause....................................10
The Supreme Court...........................................12
Other Legislation and the Origination Clause...........................14
Debt Limit Legislation.........................................17
The Origination Clause of the U.S.
Constitution: Interpretation and
Article I, Section 7, clause 1 of the U.S. Constitution, is known generally as the
“Origination Clause” because it requires 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.
As generally understood in both the House and Senate, this clause carries two
kinds of prohibitions. First, the Senate may not originate any measure that includes
a provision for raising revenue, and second, the Senate may not propose any
amendment that would raise revenue to a non-revenue measure. The Senate,
however, may generally amend a House-originated revenue measure as it sees fit.
These prohibitions can be enforced in either the House or the Senate, and there are
ample precedents for both.
As with many provisions of the Constitution, the precise meaning and
application of these few words has been refined through practice and precedent since
it was first ratified. This report examines the historical record with regard to the
origins of the clause, and analyzes its evolution, describing congressional and court
precedents, to provide a summary of how the clause is currently understood. This
report also examines the various procedures by which disputes concerning the
Origination Clause have been resolved.
The Constitutional Convention and the
Among the most significant issues debated at the constitutional convention in
Philadelphia were those relating to the respective roles for the proposed House of
Representatives and Senate. Vesting the authority to originate revenue measures in
the House exclusively was one aspect of the compromise whereby delegates from
small and large States agreed in principle to a bicameral Congress. What role each
chamber would play, and what authority each would exercise, was not easily arrived
at. In particular, how authority would be assigned with regard to legislation
concerning money was one of the more salient aspects of that debate.
The idea that some or all money bills should originate in the popularly elected
chamber of the legislature was a product of British and colonial experience, an
experience that had been rekindled when the newly independent states adopted new
constitutions in 1776 or shortly thereafter.1 A number of delegates to the
Philadelphia Convention felt strongly that, for the federal government, the power to
originate money bills should also reside solely in the House of Representatives,
because it, unlike the Senate, would be directly elected by people.2 In the words of
Elbridge Gerry, a delegate to the convention from Massachusetts:
Taxation and representation are strongly associated in the minds of the people,
and they will not agree that any but their immediate representatives shall meddle3
with their purses.
As first proposed by Gerry on June 13, 1787, the convention rejected, 3-8, a
proposal to add language providing that “money bills ... shall originate in the first
branch of the national legislature.”4 The issue was addressed again by the
Compromise Committee on Representation, chaired by Gerry, on July 3. The
committee’s report recommended that:
[A]ll Bills for raising or appropriating money and for fixing the
salaries of the Officers of the Government of the United States, shall
originate in the first Branch of the Legislature, and shall not be
altered or amended by the second Branch — and that no money shall
be drawn from the public Treasury but in pursuance of appropriations5
to be originated by the first Branch.
This proposal was paired by the committee with one providing that “in the second
Branch of the Legislature each State shall have an equal Vote.”6 This time the7
convention voted, 5-3, to retain the restriction. On August 8, the question was raised
again on the grounds that the provision unnecessarily restricted the legislative role
of the Senate. Although George Mason of Virginia feared that striking the provision
1 J. Michael Medina, “The Origination Clause in the American Constitution: A Comparative
Survey,” Tulsa Law Journal, vol. 23, winter 1987, p. 168, fn 13. According to John
Dickinson, a delegate to the constitutional convention from Delaware, in 1787 eight of the
states had some form of origination clause in their constitution. Quoted in Max Farrand, ed.,
The Records of the Federal Convention of 1787, revised edition in four volumes [hereafter
cited as Farrand], vol. II (New Haven: Yale University Press, 1937), p. 278.
2 The Members of the Senate were elected by the various state legislatures until ratification
of the 17th Amendment in 1913.
3 Farrand, vol. II, p. 275.
4 Farrand, vol. I, p. 224. Voting at the Philadelphia Convention was by state, with each
state’s delegation having one vote. If a state’s delegation was evenly divided, that state’s
vote wasn’t counted in the tally. In cases where fewer than six states voted on the winning
side, the convention would sometimes vote to affirm the result.
5 Ibid., p. 524.
7 Ibid., p. 547.
could “unhinge the compromise of which it made a part,” the convention voted, 7-4,
to strike it.8
Edmund Randolph of Virginia subsequently suggested that the problem of the
earlier language was that it could be interpreted so broadly that it could apply to
legislation that only incidently raised money, and proposed modifying it.9 His
proposal made the language more specific regarding what legislation the Senate
might originate, prohibiting only “bills for raising money for the purpose of revenue
or for appropriating the same.” However, the same proposal also included language
to restrict the Senate’s role in considering such legislation by providing that it could
not be “amended or altered by the Senate as to increase or diminish the sum to be
raised, or change the mode of levying it, or the object of its appropriation.”10
Randolph’s arguments invoked the clause’s part in the compromise which had given
the smaller States equal representation in the Senate, and called on them to support
the proposal. On August 11, he successfully moved that the convention to reconsider
the question, but on August 13 the new language was rejected, 4-7.11
On August 15, Caleb Strong of Massachusetts again raised the question of the
original Gerry language, this time altered to allow the Senate to “propose or concur
with amendments as in other cases.” The convention postponed deciding the
question that day,12 and again on September 5.13 Finally, on September 8, the
language of Strong’s proposal was revised, and the Origination Clause was adopted
by the convention, 9-2, in the form that was later ratified.14
Interpreting the Origination Clause
Although the application of the Origination Clause was discussed at the
Philadelphia convention, the Constitution does not provide specific guidelines as to
what constitutes a bill for raising revenue. The meaning of a “Bill for raising
Revenue” is therefore a question of interpretation. As a result, Congress and federal
courts both have played roles in establishing the precedents that guide interpretation
and application of the Origination Clause.
8 Farrand, vol. II, pp. 224-225.
9 Ibid., p. 263.
10 Ibid., p. 273.
11 Ibid., p. 280.
12 Ibid., p. 298.
13 Ibid., p. 510.
14 Ibid., p. 552.
As it is the House that is most frequently called upon to enforce the Origination
Clause, its precedents have played a primary role in defining what makes a bill for
The rules and practices of the House use the concept of “revenue” in two
separate, but related, procedures. First, in connection with enforcing House
prerogatives under the Origination Clause when considering a resolution to return a
bill to the Senate (a “blue-slip resolution”), and second, when enforcing within the
House the exclusive jurisdiction of the House Committee on Ways and Means over
all measures “carrying a tax or tariff.”16 The connection between the two uses is
made explicit when, at the beginning of each Congress, the Speaker of the House
enunciates certain policies with respect to several aspects of the legislative process.
One of these policies concerns “guidance concerning the referral of bills, to assist
committees in staying within their appropriate jurisdictions ... and to protect the
constitutional prerogative of the House to originate revenue bills.”17
In both instances the House applies a broad standard, based on whether the
measure in question has revenue-affecting potential, and not simply whether it would
raise or lower revenues directly. For example, any change in import restrictions may
be regarded by the House as falling within the purview of the Origination Clause,
because it could have an impact on tariff revenues. In 1992, the House returned to
the Senate a bill (S. 884, 102nd Congress) to require the President to impose economic
sanctions, including a ban on certain imports, against countries which fail to
15 House precedents concerning the Origination Clause may be found in: Asher C. Hinds,
Hinds’ Precedents of the House of Representatives of the United States including references
to provisions of the Constitution, the laws, and decisions of the United States Senate
[hereafter cited as Hinds’ Precedents], vol. II, chap. XLVII (Washington: GPO, 1907);
Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States
including references to provisions of the Constitution, the laws, and Decisions of the United
States Senate [hereafter cited as Cannon’s Precedents], vol. VI, chap. CLXXX
(Washington: GPO, 1935); and Lewis Deschler, Deschler’s Precedents of the United States
House of Representatives including references to provisions of the Constitution and laws,
and to decisions of the courts [hereafter cited as Deschler’s Precedents] vol. 3, chap. 13,
part C (Washington: GPO, 1977). In addition, House actions to return Senate billsthth
containing revenue provisions for the 98-107 Congresses may be found in: U.S.
Congress, House Committee on Ways and Means, Report on the Legislative and Oversightththnd
Activities of the Committee on Ways and Means During the 109 Congress, 109 Cong., 2
sess., H.Rept. 109-736 (Washington: GPO, 2006) pp. 114-117.
16 House Rule XXI, clause 5(a).
17 This policy is articulated in “Policies of the Chair,” Congressional Record, vol. 137,
January 3, 1991, p. 66. The Speaker’s announcements at the beginning of the 110th
Congress stated that this policy would continue to govern, but that it need not be reiterated,
as it is “adequately documented as precedent.” “Announcement by the Speaker,”
Congressional Record, daily edition, vol. 153, January 5, 2007, p. H59.
eliminate large-scale driftnet fishing.18 In 1999, the House returned to the Senate a
bill (S. 254, 105th Congress) effectively banning the import of certain assault weapon
at t achm ent s.19
House precedent, as articulated by the policy of recent Speakers of the House,
construes the chamber’s prerogatives broadly to include “any meaningful revenue
proposal,” but may also include other types of receipts which may not fall strictly
within a technical definition of revenues. This interpretation is framed by the
Speaker in terms of House committee jurisdictions and referrals, but it also informs
the House’s understanding of what constitutes non-revenue receipts that are not
subject to the Origination Clause. While the House rules grant exclusive jurisdiction
over revenues to the Ways and Means Committee, they also allow for various other
standing committees of the House to consider legislation concerning non-revenue
receipts, such as:
user, regulatory and other fees, charges, and assessments levied on a class
directly availing itself of, or directly subject to, a governmental service, program,
or activity, but not on the general public, as measures to be utilized solely to
support, subject to annual appropriations, the service, program, or activity ... for
which such fees, charges, and assessments are established and collected and not
to finance the costs of Government generally. The fee must be paid by a class
benefitting from the service, program or activity, or being regulated by the
agency; in short, there must be a reasonable connection between the payors and20
the agency or function receiving the fee.
One example of the distinction between revenue and non-revenue receipts
having an impact on the House’s interpretation of the Origination Clause is the case
of S. 104 (105th Congress). This legislation would have repealed one fee and
replaced it with another. It was the repeal of the original fee, but not Senate
origination of a new fee, that triggered House action. The new fee was to be limited
to the amount appropriated to cover the cost of nuclear waste disposal. Due to the
fact that the new fee was tied to the actual cost of the activity, and was to be borne
by the entities directly involved, the House did not question the Senate’s authority to
originate it. The proceeds from the original fee, however, were uncapped, and fees
collected in excess of the associated costs were deposited in the general fund in the
Treasury and used to finance the federal government generally. Repeal of the
original fee was determined by the House to have a direct impact on revenues, and
therefore subject to the Origination Clause, resulting in the measure being blue-21
18 “Privileges of the House — Returning to the Senate S. 884, Driftnet Moratorium
Enforcement Act of 1991” Congressional Record, vol. 138, February 25, 1992, p. 3377.
19 “Privileges of the House — Returning to the Senate the Bill S. 254, Violent and Repeat
Juvenile Offender Accountability and Rehabilitation Act of 1999” Congressional Record,
daily edition, vol. 145, July 15, 1999, pp. H5677-H5680.
20 “Policies of the Chair,” Congressional Record, vol. 137, January 3, 1991, p. 66.
21 “Privileges of the House — Returning to the Senate the Bill S. 104, Nuclear Waste Policy
Act of 1982” Congressional Record, daily edition, vol. 144, March 5, 1998, pp. H878-H879.
Overall, House precedents indicate a wide spectrum of tax and tariff actions that
have been excluded on the basis of the Origination Clause. In addition to the above,
examples of measures that the House has returned to the Senate include the
following: a concurrent resolution reinterpreting a definition in the tariff act of
exempting receipts from the operation of the Olympic Games from taxation;25 and
redetermining a sugar quota involving a combination of tariff duties and incentive
paym ents. 26
Although the Senate’s role in determining what constitutes a bill for raising
revenues is less prominent than that of the House, its precedents have, nevertheless,
also shaped the application of the Origination Clause. The Senate’s practices have
influenced the definition of revenues in two ways: (1) when the Senate rules certain
measures out of order, and (2) when the Senate declines to take up certain measures
absent a House-originated revenue bill. The primary impact of Senate practices,
however, has been to underscore the House’s interpretation of what constitutes
revenue in a constitutional sense. Some examples of this include the following:
!The Senate has sustained a point of order against a bill that included
revenues that would be paid into the general fund of the Treasury,
rather than being set aside for a specific purpose;27
!The Senate has declined to sustain a point of order against a bill that
included postal rates on the grounds that postal charges are not
considered revenue, even though they would be deposited into the
general fund, because the payments would be made in exchange for
!The Senate has refused to consider a bill concerning international
commerce in oil and oil products on the grounds that import
restrictions have a direct impact on tariff revenues.29
Although Article I, Section 7, provides that the Senate may propose or concur
with amendments as on other bills, there have been occasions on which either the
House or Senate has debated the question of how expansively the Senate’s amending
22 Cannon’s Precedents, sec. 319.
23 Hinds’ Precedents, sec. 1494
24 Deschler’s Precedents, chap. 13, sec. 15.1.
25 Deschler’s Precedents, chap. 13, sec. 15.3.
26 Deschler’s Precedents, chap. 13, sec. 15.4.
27 Cannon’s Precedents, sec. 316.
28 Cannon’s Precedents, sec. 317.
29 Cannon’s Precedents, sec. 320.
authority should be interpreted. Some of the earliest precedents show that in the 19th
century the House sometimes exhibited a fairly restrictive view of the Senate’s
authority to amend a revenue bill, and regarded the Origination Clause as limiting the
Senate only to germane amendments. For example, in 1807, the House objected to
consideration of Senate amendments to a tariff bill that went beyond the details of the
bill,30 and in 1872, the House tabled a Senate substitute to a House revenue bill when
it sought to expand significantly the scope of the underlying measure. In the latter
example, the House had passed H.R. 1537 (42nd Congress) which repealed duties on
coffee and tea, whereas the Senate amendment contained a general revision, of
various laws imposing duties and internal taxes.31 In the House, James A. Garfield,
I do not deny their [the Senate’s] right to send back a bill of a thousand pages as
an amendment to our two lines. But I do insist that their thousand pages must be32
on the subject matter of our bill.
In reaction to the House, the Senate Committee on Privileges and Elections issued
a report stating that:
it has been urged that to permit the Senate to ingraft, by way of amendment, a
general tariff bill upon a bill of the House laying a duty on peanuts, is entirely to
disregard the spirit of the clause of the Constitution before quoted. In reply it
may be said, however, that any other construction of this constitutional provision
would deny to the Senate the power to amend a House bill laying a duty on
peanuts so as to lay a duty upon English walnuts; that is, would deny to the
Senate the power of making to the bill anything more than mere formal33
The report, however, conceded that the Senate’s amendment authority is not
unlimited; that it cannot propose an amendment raising revenue to any House-
originated bill, only to a bill for raising revenue.34
More recent precedents exhibit no general restriction on the Senate’s
amendment authority, leaving the Senate free to propose any amendment allowed
under Senate rules to House originated revenue measures. As currently understood,
because the Senate has no rule requiring that amendments to revenue bills be
germane, the constitutional provision allowing the Senate to “propose or concur with
amendments as on other Bills” opens the door to Senate action on a wide range of
possible alternatives.35 In this way, the Senate may “originate” specific tax
30 Hinds’ Precedents, sec. 1481.
31 Hinds’ Precedents, sec. 1489.
32 Congressional Globe, 42nd Cong., 1st sess., April 2, 1872, p. 2107.
33 S.Rept.146, 42nd Cong., 2nd sess., discussed in Hinds’ Precedents, sec. 1489.
35 CRS Report RL33207, Tax Reconciliation: Scope of the Senate’s Power Under the
Constitution’s Origination Clause to Amend Revenue Legislation, by Thomas J. Nicola.
provisions, even though it may not originate tax measures. Chief Justice Edward
White, writing the majority opinion in Rainey v. United States stated that:
the section was proposed by the Senate as an amendment to a bill for raising
revenue which originated in the House. That is sufficient .... it is not for this
Court to determine whether the amendment was or was not outside the purposes36
of the original bill.
Similarly, in 1968, the House refused to hold that a Senate amendment to add a
general surtax on income to a House-originated bill concerning excise tax rates was37
a violation of the Origination Clause. Another, illustration of the Senate’s latitude
is the Tax Equity and Fiscal Responsibility Act of 1982.38 In this instance, the Senate
took a House originated measure concerning tariffs that had passed the House in
The Supreme Court
The Supreme Court has established its own understanding of the phrase “a bill
for raising revenues.” In general, the Court’s definition has had a somewhat
narrower application than that used by the House. Some cases that the House has
regarded as a violation of its prerogative might not fall within the Court’s
understanding of a violation of the Origination Clause. This may be because by the
time the Court hears a dispute, the measure in question has been passed by the House
and Senate and become law, and therefore carries a presumption of constitutionality.
The Court has traditionally been reluctant to void a duly enacted law unless plainly
in violation of the Constitution.
The Court’s direct involvement in defining the meaning of the Origination
Clause dates back at least to 1813 when Justice Joseph Story wrote that revenue laws
made for the direct and avowed purpose for creating and securing revenue or
public funds for the service of the government. No laws, whose collateral and
36 Rainey v. United States, 232 U.S. 310, 317 (1914).
37 Deschler’s Precedents, chap. 13, sec. 16.1.
38 P.L. 97-248, 96 Stat. 324. This act was the subject of several court challenges. In Moore
v. U.S. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984) cert. denied, 469 U.S. 1106
(1985) a District Court dismissal of the challenge by a Member of the House was upheld.th
In Texas Ass’n of Concerned Taxpayers, Inc. v. U.S., 772 F.2d 163 (5 Cir. 1985), the Court
of Appeals dismissed a challenge based on whether the Senate action was outside the range
of amendments permitted under the Origination Clause as nonjusticiable. For a detailed
discussion of this example see John L. Hoffer, Jr., “The Origination Clause and Tax
Legislation,” Boston University Journal of Tax Law, vol. 2, May 1984, pp. 1-22, and
Thomas L. Jipping, “TEFRA and the Origination Clause: Taking the Oath Seriously,”
Buffalo Law Review, vol. 35, spring 1986, pp. 633-692.
indirect operation might possibly conduce to the public or fiscal wealth, are39
within the scope of the provision.
Later, in his Commentaries on the Constitution, Story reiterated this position when
he wrote that the meaning of the Origination Clause was:
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 create40
The meaning of “revenue” was further discussed in United States ex rel. Michels v.
James where a circuit court held that a bill to increase postage rates that had
originated in the Senate did not violate the Origination Clause because it did not fall
within the definition of a revenue bill.
Certain legislative measures are unmistakably bills for raising revenue.
These impose taxes upon the people, either directly or indirectly, or lay duties,
imposts or excises, for the use of the government, and give to the persons from
whom the money is exacted no equivalent in return, unless in the enjoyment, in
common with the rest of the citizens of the benefit of good government .... A bill
regulating postal rates for postal service, provides an equivalent for the money41
which the citizen may choose voluntarily to pay.
The court’s understanding of the Origination Clause is therefore based on two
central principles that tend to narrow its application to fewer classes of legislation
than the House: (1) raising money must be the primary purpose of the measure,
rather than an incidental effect; and (2) the resulting funds must be for the expenses
or obligations of the government generally, rather than a single, specific purpose.
These principles are illustrated in two often cited cases.
In Twin City Bank v. Nebeker, the Supreme Court held that an act to establish
a national currency backed by United States bonds, that also imposed a fee on banks
based on the average amount of notes in circulation, did not violate the clause
because it was not a revenue bill. In this case, the Court ruled that the primary
purpose of the bill was to establish a national currency, and the fee on banks was42
incidental to that purpose.
In Millard v. Roberts, the Court held that a bill to impose a tax on property in
the District of Columbia to raise money for the express purpose of providing railroad
39 United States v. Mayo, 26 Fed. Cas. 1230, 1231 (C. C. Mass. 1813)(No. 15,755).
40 Joseph Story, Commentaries on the Constitution (Boston: Hilliard, Gray & Co., 1833;
reprint edition Littleton, CO: Fred B. Rothman & Co., 1991) vol. 2, chap. XIII, sec. 877,
41 United States ex rel. Michels v. James, 26 Fed. Cas. 577, 578 (C. C. N.Y. 1875) (No.
15,464) quoted in Hinds’ Precedents, sec. 1494, p. 965. Despite the court’s decision, the
House has subsequently maintained on occasion that postal rates do fall within the scope of
their prerogatives. See for example, Cannon’s Precedents, sec. 317.
42 Twin City Bank v. Nebeker, 167 U.S. 196 (1897).
terminal facilities was not a bill to raise revenue because the money raised was for
a specific purpose, rather than to meet the general expenses or obligations of the
A more recent ruling based on these principles appeared in United States v.
Munoz-Flores. In this case, the law being challenged required federal courts to
impose a monetary “special assessment” on any person convicted of a federal
misdemeanor, to be used for some part of the expenses associated with compensating
and assisting victims of crime. In the opinion of the Court, the fact that this
requirement would create new income for the federal government was not alone
sufficient for the measure to be considered a revenue bill. The Court held that the
case “falls squarely within the holdings in Nebeker and Millard.44 In a footnote to the
opinion, however, the Court cautioned that:
A different case might be presented if the program funded were entirely
unrelated to the persons paying for the program.... Whether a bill would be “for
raising Revenue” where the connection between payor and program was more45
attenuated is not now before us.
In other words, the method by which funds are raised, the purposes for which
they are raised, and the connection between these two elements, are issues that may
affect the Court’s interpretation of the Origination Clause’s application in a given
It should also be noted that federal courts have generally declined to equate the
phrase “raising revenue” with “increasing revenue.” To do so would be an attempt
to apply a “slippery and potentially chameleonic” label to legislation that “may have
an effect of increasing revenue under certain economic conditions and decreasing46
revenue under others.” Instead, contemporary courts have adopted the construction
given by Congress, that is, relating to, or providing for, revenue.
Enforcing the Origination Clause
The House’s primary method for enforcement of the Origination Clause is
through a process known as “blue-slipping.” Blue-slipping is the term applied to the
act of returning to the Senate a measure that the House has determined violates its
prerogatives as defined by the Origination Clause. It is called blue-slipping because
the resolution returning the offending bill to the Senate is printed on blue paper. This
process is provided for under House Rule IX, clause 2(a)(1), which states:
43 Millard v. Roberts, 202 U.S. 429 (1906).
44 United States v. Munoz-Flores, 495 U.S. 385, 398 (1990).
45 Ibid., 400-01, n 7.
46 Texas Ass’n of Concerned Taxpayers, Inc. v. U.S., 772 F.2d 163, 166 (5th Cir. 1985).
A resolution reported as a question of the privileges of the House, or offered
from the floor by the Majority Leader or the Minority Leader as a question of the
privileges of the House, or offered as privileged under clause 1, section 7, article
I of the Constitution [emphasis added], shall have precedence of all other
questions except motions to adjourn.
Any Member of the House may offer such a resolution, but normally it is the
Chairman of the Ways and Means Committee who would do so. Occasionally,
another member of the committee may be designated. Consideration of the
resolution takes place in the House of Representatives under the one-hour rule.
Clause 2(a)(2) further provides that:
The time allotted for debate on a resolution offered from the floor as a question
of the privileges of the House shall be equally divided between (A) the proponent
of the resolution, and (B) the Majority Leader, the Minority Leader, or a
designee, as determined by the Speaker.
It should be noted that because enforcement of the Origination Clause in the
House is based on a question of the constitutional privilege of the House, it is not
subject to restrictions based on timeliness. The House can assert its privilege at any
time it is in possession of the bill and related papers (that is, anytime the actual
documents are not physically in possession of the Senate or a conference47
committee). Therefore, the House is not limited to enforcing its prerogative only
through blue-slipping a measure upon its initial receipt from the Senate. Historically,
the House has used a variety of methods for enforcement.
On a number of occasions the House has chosen to ignore a Senate passed bill,
and instead to take action on a House bill.48 The House may also refer a questionable
Senate measure to a committee. In such instances, the committee may choose simply
to report a House bill, rather than consider the Senate bill further.49 The House may
also decide to use a conference committee as a venue for deciding Origination Clause
questions. It may do so by having the subject committed to conference,50 or it may
determine that an offending provision can be removed in conference without having
to take the formal step of blue-slipping.51 Such an accommodation would not prevent
47 Deschler’s Precedents, chap. 13, sec. 14.2.
48 Deschler’s Precedents, chap. 13, sec. 18.1-18.5.
49 Deschler’s Precedents, chap. 13, sec. 18.5.
50 Hinds’ Precedents, sec. 1487.
51 Such an accommodation was proposed by Representative David Obey, then Chairman of
the House Appropriations Committee, for dealing with a revenue provision inserted into the
FY1995 Agriculture, Rural Development, Food and Drug Administration, and Relatedrd
Agencies Appropriations bill (H.R. 4554, 103 Congress). During floor remarks concerning
this proposed accommodation, Representative Robert Walker stated that such an
accommodation had previously been made during consideration of the Senate passedrd
FY1995 Commerce, Justice, State Appropriations bill (H.R. 4603, 103 Congress). Forrd
details see the discussion during consideration of H.Res. 518 (103 Congress) in “Privileges
of the House — Returning to the Senate the Senate Amendments to H.R. 4554,” remarks in
the House from enforcing its prerogatives through blue-slipping after a conference
if the offending provision remained in the measure.52
The House may also move to take up the measure and disagree to the offending
Senate amendment, giving the Senate the option of deciding how to proceed. The
Senate could then insist on its amendment and attempt to go to conference regardless
of House concerns. The Senate could also recede from its amendment and concur
with a new amendment not violating House prerogatives. Such a course of action,
however, would require unanimous consent. It would also be possible for the Senate
simply to recede to the House-passed version, although politically this would be less
According to Riddick’s Senate Procedure, when a question is raised in the
Senate regarding the constitutionality of a measure, including whether the measure
contravenes the Origination Clause, it is submitted directly to the Senate for its
determination.53 Similarly, an amendment proposing to raise revenues would be out
of order on the same grounds if offered to a non-revenue measure. A point of order
against such an amendment would also be submitted by the Presiding Officer directly
to the Senate.54 Such a point of order generally would be debatable and decided by
The Supreme Court
As with other provisions of the Constitution, if the Court were to find that a
revenue bill had been passed in violation of the Origination Clause, the consequence
would be for the statute to be struck down. In most instances where the courts have
ruled with regard to Origination Clause matters, it has been as to whether the
particular measure was a revenue bill within the meaning of the clause, not as to the
question of its origin.55
Historically, the Court’s role in enforcing the Origination Clause has been
limited. In most circumstances, Supreme Court Justices have been reluctant to look
behind a bill as enrolled to determine its validity. That is, the Court primarily limits
its role to determining whether a given measure fits the definition of a bill for raising
revenue. When questions of origination are involved, the Court looks to the
measure’s designation as a House or Senate bill, but does not examine the journals
the House, Congressional Record, vol. 140, August 12, 1994, pp. 21655-21658.
52 Deschler’s Precedents, chap. 13, sec. 14.2.
53 U.S. Congress, Senate, Riddick’s Senate Procedure, S.Doc. 101-28, 101st Cong., 2nd sess.,
by Floyd M. Riddick and Alan S. Frumin (Washington: GPO, 1992), pp. 685, 1215.
54 Ibid., pp. 52, 1215.
55 For example see United States ex rel. Michels v. James, Twin City Bank v. Nebeker, and
Millard v. Roberts discussed at pp. 8-10 above.
of the House or Senate to determine in which house a specific revenue provision may
actually have originated. This “enrolled bill rule” generally precludes the courts from
questioning the certification by the presiding legislative officers of the House and
Senate56 that an enrolled bill was passed pursuant to proper procedures.57 The
application of the enrolled bill rule to the Origination Clause is illustrated in two
In Flint v. Stone Tracy Co., the Court refused to look beyond the designation of
the underlying measure as a House bill. In this case, a House bill that included
inheritance tax provisions had been amended by the Senate to contain corporate taxes
instead. The Court held that “The bill having properly originated in the House, we
perceive no reason in the constitutional provision ... why it may not be amended in
the Senate in the manner which it was in this case.”58
In Hubbard v. Lowe, the Cotton Futures Act59 was voided based on the same
idea. In this case, the bill had originated in the Senate, and it was instead the House
which had amended the bill. The original Senate bill had sought to prohibit certain
contracts by banning them, and all related matters, from the mail, but had been silent
with regard to taxes. The House had amended the bill to prohibit these contracts by
imposing a prohibitive tax instead. The Supreme Court agreed with the District
Court’s refusal to go behind the measure’s designation as a Senate bill to determine
that the tax provision had actually originated in the House.60
The application of the enrolled bill rule to cases arising from the Origination
Clause, however, does not appear to be absolute. In his concurring opinion in United
States v. Munoz-Flores, Justice Antonin Scalia stated that under the enrolled bill rule
the Court should not look behind the legislation’s origination as H.J. Res. 648 (98th
Congress) to determine its validity. To do otherwise would “manifest a lack of
respect due a coordinate branch.” Further, the Court “should no more gainsay
Congress’ official assertion of the origin of a bill than we would gainsay its official
assertion that the bill was passed by the requisite quorum.”61
In the majority opinion, however, the Court held that while a judicial finding
that Congress had passed an unconstitutional law might in some sense be said to
entail a “lack of respect” for Congress’ judgement, that this was not sufficient to
make a question nonjusticiable, on the basis either of the enrolled bill rule or as a
56 The Speaker of the House and the President Pro Tempore of the Senate, respectively.
57 The enrolled bill rule was established in Marshall Field & Co. v. Clark, 143 U.S. 649
(1892). For an overview of the enrolled bill rule see Norman J. Singer, Statutes andth
Statutory Construction, 5 ed.(Deerfield, IL: Clark, Boardman, and Callaghan, 1992) chap.
58 Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911).
59 Public Law 174, 63rd Congress, 38 Stat. 693-698.
60 Hubbard v. Lowe, 226 F. 135 (S.D.N.Y. 1915), dismissed without consideration, 242 U.S.
61 United States v. Munoz Flores, 495 U.S. 385, 409-410.
political question.62 Justice Thurgood Marshall, writing the majority opinion of the
Court, stated that:
If it were, every [italic in original] judicial resolution of a constitutional
challenge to a congressional enactment would be impermissible ....
Congressional consideration of constitutional questions does not foreclose63
subsequent judicial scrutiny.
As a consequence, the Court held that the House was not the sole authority with
respect to determining the meaning or enforcement of its prerogatives under the
Although the House certainly can refuse to pass a bill because it violates the
Origination Clause, that ability does not absolve this Court of its responsibility
to consider constitutional challenges to congressional enactments.... Nor do the
House’s incentives to safeguard its origination prerogative obviate the need for64
Thus, the Court may review a question concerning the Origination Clause, and
not rely solely on the enrolled bill doctrine when determining its applicability. The
House certainly may determine whether the Origination Clause does or does not
apply in a particular case, but a House determination that it does not apply may be
subject to Court review. As with other questions brought before it, whether the Court
actually would review a case would depend on whether it was brought by someone
whom the Court determined had standing, and whether the Court regarded it as a true
case or controversy. Unlike its rules, which the House may choose not to enforce at
its discretion, the House may not choose simply to waive the Origination Clause.
Other Legislation and the Origination Clause
Historically, the House has asserted that the Origination Clause applies not only
to bills to raise revenues, but to bills to spend revenues as well. Due to this
interpretation, the House has customarily originated all money bills, including
appropriations bills. The House and Senate disagree on the validity of this position,
Proponents of the House’s position have maintained that the phrase “bills for
raising revenues” that appears in the Constitution is synonymous with the more
inclusive phrase “money bills.” This view has its basis in the fact that when the
62 In Baker v. Carr 369 U.S. 186, 217 (1962), the Supreme Court identified the features that
characterize a case rising from a nonjusticiable political question, including “the
impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of government.”
63 United States v. Munoz-Flores, 495 U.S. 385, 390-391.
64 Ibid., 392.
Constitution was drafted, the British House of Commons possessed the undivided
authority to originate all types of money bills. Proponents argue that because the
British Parliament was the model for much of the constitutional convention’s work,
the drafters intended to mirror this authority and grant control over all money bills
to the House. They suggest that the debate at the convention concerned primarily
whether the Senate should have the authority to amend — not whether the House
should have exclusive authority to originate — money bills, and they point to
Federalist No. 58 (attributed to Madison), which states:
The House of Representatives cannot only refuse, but they alone can
propose the supplies requisite for the support of government. They, in a word,
hold the purse .... This power over the purse may, in fact, be regarded as the most
complete and effective weapon with which any constitution can arm the65
immediate representatives of the people ....
In addition, they argue that the practice of the House to insist upon originating
appropriations dated back to the First Congress, and therefore must have been
deliberate rather than accidental. In the words of Senator William H. Seward:
whatever the Convention may have proposed, and however they may have
understood the Constitution which they have framed, the fact is a stubborn one
that the Senate has never an appropriations bill, but that it has always conceded66
to the House of Representatives the origination of appropriations bills ...
Opponents counter that by specifically rejecting more inclusive phrases, such
as “money bills” or “bills for raising or appropriating money,” the drafters were67
clearly deviating from the British model. They argue that the custom of the House
originating appropriations was an outgrowth of mere practice, and gradually68
developed into a doctrine despite lacking specific constitutional sanction.
As with the question of the extent of the Senate’s authority to amend House-
originated revenue bills, the historical record shows that Congress has examined this
issue on several occasions with sometimes conflicting results.
!In 1856, during a prolonged contest over election of the Speaker and
the organization of the House, the House was unable to transact any
legislative business. The Senate debated and adopted a resolution
directing that, in the name of expediency, the Committee on Finance
should prepare and report appropriations bills rather than wait for
65 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, [introduction,
table of contents and index by Clinton Rossiter] (New York: New American Library, 1961)
66 Congressional Globe, 34th Cong., 1st sess., February 7, 1856, p. 376.
67 For details on the evolution of the language of the Origination Clause, see the discussion
of the Constitutional Convention above.
68 Cannon’s Precedents, sec. 321, describing the position of Senator Francis E. Warren in
the Congressional Record, vol. 48, April 11, 1912, p. 4577.
House action. However, no appropriations appear to have actually
been reported as a result.69
!In 1880, a Senate bill making an appropriation was referred to the
House Judiciary Committee, with instructions that it inquire into the
right of the Senate to originate bills making appropriations. The
majority of the committee concluded that the right to originate
appropriations was not exclusive to the House, and recommended
the House adopt a resolution supporting this position. The minority
filed dissenting views reaching the opposite conclusion, and
recommended that the House adopt a resolution supporting their
position, and return the Senate bill. The House took no action on
either recommended resolution, nor on the Senate bill.70
!In 1885, the House again declined to investigate the authority of the
Senate to originate appropriations.71
The House, however, has never formally acknowledged that the Origination
Clause does not apply to appropriations, and has returned to the Senate
appropriations bills originated by that chamber. In 1953, the House returned to the
Senate a measure making appropriations for the District of Columbia,72 and in 1962,
the House returned a measure making appropriations for the Department of
Agriculture.73 In response to the latter episode, the Senate adopted a resolution
(S.Res. 414, 87th Congress) asserting its authority to originate bills appropriating
money, and requesting that the question be submitted either to the federal courts for
a declaratory judgement, or a commission.74 The House took no action on this
The following year, during hearings on creating a joint committee on the budget,
the Senate Committee on Government Operations heard testimony regarding
concerns that the proposal might infringe on the House’s prerogatives under the
Origination Clause.75 The committee subsequently requested a study on the question
that was published both with the hearing and separately as a Senate document.76 The
69 Hinds’ Precedents, sec. 1500, p. 972, fn 1.
70 U.S. Congress, House Committee on the Judiciary, Power of the Senate to Originate
Appropriations Bills, 46th Cong., 3rd sess., H.Rept. 147 (Washington: GPO, 1881). This
report is also discussed in Hinds’ Precedents, sec. 1500.
71 Hinds’ Precedents, sec. 1501.
72 Deschler’s Precedents, chap. 13, sec. 20.4.
73 Deschler’s Precedents, chap. 13, sec. 20.2.
74 Deschler’s Precedents, chap. 13, sec. 20.1
75 U.S. Congress, Senate Committee on Government Operations, Create a Joint Committee
on the Budget, hearings on S. 537, 88th Cong., 1st sess., March 19 and 20, 1963 (Washington:
GPO, 1963). See especially, the testimony of Lucius Wilmerding, Jr., pp. 59-68.
76 U.S. Congress, Senate Committee on Government Operations, The Authority of the Senate
study reached the same conclusion as the 1881 House Judiciary Committee study:
that there was no constitutional basis for the practice of the House originating
appropriations. No further action was taken to incorporate this conclusion into
congressional practice, however.
Although the constitutional question has never been definitively resolved, in
practice the Senate has generally deferred to the House’s insistence on originating
Debt Limit Legislation
Questions concerning the level of public debt are often closely related to
questions of revenue, since the federal government must use borrowed funds to
finance obligations when the level of revenues available is not sufficient. In addition,
legislative jurisdiction over these two issues is exercised by the same committees that
exercise jurisdiction over tax legislation in both the House and Senate. Historically,
it has been the custom that the House has originated legislation to provide for the
issuance of federal debt or to establish a limit on the level of federal debt. Neither
chamber has asserted that public debt legislation is subject to the Origination Clause,
however. Furthermore, questions concerning the purpose or usage of debt securities
are not subsumed under questions of origination. The actions of the House in 1946
with regard to debt legislation are consistent with this interpretation.
On the broad question of whether or not all legislation concerning public debt
was subject to the Origination Clause, the House concluded that it is not. In May
Congress). The proposed joint resolution would have amended the Second Liberty
Loan Act by adding to and expanding the purposes for which the proceeds from the
sale of federal debt could be used. In the course of debating House action on the
Senate measure, Representative John W. McCormack inserted a memorandum in the
Congressional Record that stated:
[I]t appears to be clear that a bill to raise funds through the sale of Government
obligations does not violate the privilege of the House as set forth in article I,
section 7, clause 1 of the Constitution. Even if it should be concluded, however,
that a bill to raise funds by selling Government bonds violates the privilege of the
House, it would be necessary for the House to reach the additional conclusion
that Senate Joint Resolution 138 does provide for the raising of funds through the
sale of Government obligations ... [The resolution] merely instructs the Secretary
of the Treasury how to use funds he is already authorized to raise ... not increase77
the limit of public-debt issues ....
An unnumbered House resolution to return S.J.Res. 138 to the Senate on the grounds
that it infringed on the House’s prerogatives under the Origination Clause was
to Originate Appropriation Bills, S.Doc. 17, 88th Cong., 1st sess. (Washington: GPO, 1963).
77 “Privilege of the House,” Congressional Record, vol. 92, May 14, 1946, p. 5004.
subsequently referred to the Judiciary Committee, which undertook no action with
regard to the constitutional question.78
On the narrower question of whether legislation specifically concerning the
amount of federal debt is subject to the Origination Clause, the House also concluded
that it does not apply. In June 1946, the Senate passed a bill to lower the debt limit,
which was received in the House and referred to the Committee on Ways and Means.
The Committee voted not to recommend that the House return the bill to the Senate,
but declined to report the bill to the full House for further action. Instead, the
Committee reported a House bill on the same subject which was subsequently passed
by the House and Senate and became law.79
The system of government formulated by the framers of the Constitution in
1787 incorporated an intricate balancing of authorities and prerogatives, between the
federal and state governments, among the branches of the federal government, and
within the legislative branch, between the House and Senate. On the issue of
taxation, the framers sought to mirror British practice by requiring that “All Bills for
raising Revenue” originate in the popularly elected House, but balanced this by
allowing the Senate the right to amend such bills. Left ambiguous was a precise
definition about which measures would comprise revenue bills, and how far the
Senate’s right to amend them extended.
Over the course of more than two centuries of experience, the meaning of the
Origination Clause has been honed by congressional and judicial precedents. Today,
the clause applies unambiguously only to those bills that have as their primary
purpose raising funds for the general operation of the federal government. However,
it remains for the House, Senate, and federal courts to employ this understanding to
enforce the application of the clause. The primary method for ensuring the
enforcement of the Origination Clause has historically been blue-slip resolutions
adopted by the House of Representatives. This remains true today, although other
avenues of enforcement, from simple House inaction on Senate-originated bills to
review by the Supreme Court, also play significant roles.
Cannon, Clarence. Cannon’s Precedents of the House of Representatives of the
United States including references to provisions of the Constitution, the laws,
and Decisions of the United States Senate, vol. VI, chap. CLXXX. Washington:
78 Deschler’s Precedents, chap. 13, sec. 17.1.
79 Deschler’s Precedents, chap. 13, sec. 18.4.
Deschler, Lewis. Deschler’s Precedents of the United States House of
Representatives including references to provisions of the Constitution and laws,
and to decisions of the courts, vol. 3, chap. 13, part C. Washington: GPO,
Farrelly, Marie T. “Special Assessments and the Origination Clause.” Fordham Law
Review 58 (December 1989): 447-69.
Hoffer, John L., Jr. “The Origination Clause and Tax Legislation.” Boston
University Journal of Tax Law 2 (May 1984): 1-22.
Hinds, Asher C. Hinds’ Precedents of the House of Representatives of the United
States including references to provisions of the Constitution, the laws, and
decisions of the United States Senate, vol. II, chap. XLVII. Washington: GPO,
Jipping, Thomas L. “TEFRA and the Origination Clause: Taking the Oath
Seriously.” Buffalo Law Review 35 (Spring 1986): 633-92.
Madara, F. G. “Annotation: Application of Constitutional Requirement that Bills
for Raising Revenue Originate in Lower House.” In American Law Reports
Annotated, 2d Series, editor-in-chief Edwin Stacey Oakes, vol. 4, 973-990.
Rochester, NY: The Lawyers Co-Operative Publishing Co., 1949. Supp. 2002.
Medina, J. Michael. “The Origination Clause in the American Constitution: A
Comparative Survey.” Tulsa Law Journal 23 (Winter 1987): 165-234.
U.S. Congress. House. Committee on the Judiciary. Power of the Senate to
Originate Appropriations Bills, 46th Cong., 3rd sess., 1881, H.Rept. 147.
U.S. Congress. House. Committee on Ways and Means. Report on the Legislative
and Oversight Activities of the Committee on Ways and Means During the 106th
Congress, 106th Congress, 2nd session, 2001, H.Rept. 106-1036.
U.S. Congress. Senate. Committee on Government Operations. Create a Joint
Committee on the Budget: Hearing before the Committee on Government
Operations on S. 537. 88th Congress, 1st session, March 19-20, 1963.
U.S. Congress. Senate. Committee on Government Operations. The Authority of
the Senate to Originate Appropriation Bills. 88th Congress, 1st session, 1963,