One of the constitutional disputes triggered by the Affordable Care Act (Obamacare) is whether by substituting new material for the original House-passed bill (H.R. 3590), the Senate exceeded its constitutional power to amend the original measure.  This, in turn, has provoked a debate over whether the Founders considered complete substitutes to be valid amendments.

A recently-republished piece of evidence suggests that they did.  The Constitution’s Origination Clause 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.”  Because the final version of Obamacare imposed a variety of taxes, it unquestionably was a “Bill for raising Revenue.”

Obamacare’s taxes, appropriations, and health care regulations did not exist in the House-passed version of H.R. 3590.  That incarnation of the bill was only a few pages long and was limited to making minor adjustments to the Internal Revenue Code irrelevant to health care.  Under the guise of amendment, the Senate gutted the original language and substituted over 2,000 pages of Obamacare.

Some writers argue that complete substitutions were not considered valid amendments during the Founding Era, while others contend that they were.  Last year, I undertook a wide-ranging investigation into the subject that will be published within the next few weeks by the Harvard Journal of Law and Public Policy.  The article is summarized at length here.

I found that complete substitutions may have been unknown in the British Parliament, one source of the Constitution’s House origination rule.  I also found, however, that they were occasionally used in several states between Independence and the time the Constitution was ratified, and that they were considered valid amendments in those states.

This year, the Wisconsin Historical Society issued two new volumes of the magisterial Documentary History of the Ratification of the Constitution.  Those volumes cover the debate over the Constitution waged in Maryland from 1787 through the end of 1788.

The first of the volumes reprints a pamphlet written in favor of the Constitution by “Aristides,” the pen name of jurist Alexander Contee Hanson.  Hanson was a respected figure in Maryland, and his pamphlet was read widely both in that state and in Virginia.  At one point he addressed the question of whether the Constitutional Convention exceeded its authority on the (substantially false) assumption that the delegates’ commissions had been limited to proposing amendments to the Articles of Confederation.  Hanson argued that proposing a substitute was a recognized form of “amendment”:

Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room.

Hanson’s assertion is particularly relevant to the Constitution’s original meaning because his own state legislature is not among those offering contemporaneous evidence of complete substitutions.  Hanson was reflecting, in other words, an understanding that extended beyond his own state’s boundaries.

Unfortunately for advocates of Obamacare, the validity of complete substitutions as “Amendments” does not resolve the issue of constitutionality.  During the Founding Era, even complete substitutes had to be connected to the subject matter of the original bill – or, in modern language, “germane” to the original.  Otherwise, they were new bills, not valid amendments.

For reasons documented in my article, H.R. 3590 as passed by the House qualified constitutionally as a “bill for raising Revenue” (even though it was revenue-neutral) because it amended the tax code.  Under Founding-Era rules, all the Senate’s revenue changes were germane to the original, and therefore valid.  However, the Senate-added appropriations and regulations were not germane to the subject of revenue.  By including them, the Senate exceeded its authority to amend a “bill for raising Revenue.”  This means that by the Founders’ understanding of the Origination Clause, those additions were unconstitutional and void.

Rob Natelson is senior fellow in constitutional jurisprudence, Independence Institute & Montana Policy Institute, and professor of law (ret.), the University of Montana.