United States v. Munoz-Flores

PETITIONER:United States
RESPONDENT:Munoz-Flores
LOCATION:Buie Residence

DOCKET NO.: 88-1932
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 495 US 385 (1990)
ARGUED: Feb 20, 1990
DECIDED: May 21, 1990

ADVOCATES:
Judy Clare Clarke – on behalf of the Respondent
William C. Bryson – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – February 20, 1990 in United States v. Munoz-Flores

William H. Rehnquist:

We’ll hear argument first this morning in No. 88-1932, United States against German Munoz-Flores.

Mr. Bryson.

William C. Bryson:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the Federal Special Assessment Statute must be struck down on the ground that it is contrary to the Origination Clause of the United States Constitution.

There are two subsidiary questions here.

First, whether questions regarding inconsistency of the federal statute with the Origination Clause present nonjusticiable political questions.

And second, assuming that the question is justiciable, whether in fact there was a violation of the Origination Clause in this case.

Harry A. Blackmun:

Did your office raise the justiciability question in its petition for certiorari?

William C. Bryson:

Not directly, Your Honor.

We argued–

Harry A. Blackmun:

But then you don’t think much of it, I take it.

William C. Bryson:

–Well, Your Honor, we felt that the issue on which there was a conflict among the lower courts at the time we filed the petition and a conflict among the circuits at the time we… this Court addressed the petition, was the… on the merits.

There was no conflict on the justiciability question.

Now, we did advert in the petition to the issue of justiciability suggesting that at minimum the question of… on the merits should be addressed with an eye towards the problems with justiciability and, therefore, that the merits should be viewed with… by extending great discretion to the… to the House in deciding whether an Origination Clause violation had occurred.

But, no, we didn’t directly raise… raise the point.

We… we do think, however, that the point does have merit.

And since the Court has directed the parties to address the question, we… we have done so and we believe that… that would be a perfectly legitimate ground for a decision in this case.

And… at… at bottom what… what this issue presents, the whole political question doctrine is summed up, I think, well in a quote from Coleman against Miller which was reiterated in Baker against Carr.

And that is it deals with the appropriateness of attributing finality to the action of the political departments.

There are a lot of different kinds of political questions, as the Court discussed in Baker against Carr.

There are political questions in which there is a textual commitment of the issue to one branch.

There are cases in which there are strong prudential reasons for the court’s not becoming involved in a particular question.

Issues involving foreign affairs figure prominently in that list.

This case is a somewhat different case.

It doesn’t… there is no direct textual commitment in the Constitution of this issue to the legislature.

But we believe that when you look at all the factors bearing on the question of justiciability of Origination Clause questions, that you conclude that indeed it is not appropriate for the Court to interfere with the judgment that was made by the House and by the legislature as a whole that there was not Origination Clause problem in this case.

This is as Alexander Hamilton–

William H. Rehnquist:

But, Mr. Bryson, does that mean in some other case one would not defer?

William C. Bryson:

–No.

Our position is that with respect to the Origination Clause challenges, that they are subject to political question doctrine across the board.

William C. Bryson:

Now, one could say, and this is a backup argument that we make, that certain kinds of Origination Clause questions are simply not for this Court to second-guess the House on.

And only if there is a very clear obvious Original Clause violation should the Court interfere.

That would be somewhat analogous to the position the Court has taken in cases involving the question of whether a particular person is a member of an Indian tribe or recognizing an Indian tribe, an area that was discussed in Baker against Carr.

But our initial position is that Origination Clause questions as a whole are nonjusticiable.

Byron R. White:

I take it that… that the House has always got a remedy, hasn’t it?

William C. Bryson:

Exactly.

And that… that–

Byron R. White:

And we… no… no court would ever be asked to review a… to review the House’s decision that… not to… not to pass a bill it… it thought should have originated there and didn’t.

William C. Bryson:

–That’s exactly right.

Or if in… in any event, if any court where so asked, they would quickly dismiss the complaint.

The… the statute will not come up for review unless the House is happy and the Senate is happy–

Byron R. White:

That’s right.

William C. Bryson:

–with the procedure and with the substance.

And–

Byron R. White:

And the President is too.

William C. Bryson:

–And the President is too, exactly.

The House… I think Alexander Hamilton put this well when he said in The Federalist that the Origination Clause question is essentially the exclusive privilege of originating money bills which belongs to the House of Representatives.

If the House of Representatives is satisfied that the Origination Clause privilege has not been violated, then it can pass the bill that is sent to it by the Senate and the President can sign it and that’s the end of the matter.

That should be, we think, the end of the matter with respect to questions of court review of that statute.

Antonin Scalia:

Could you say the same thing, Mr. Bryson, for the legislative veto?

William C. Bryson:

No.

Antonin Scalia:

Why not?

I mean, so long as the President… you could say so long as the thing only comes up if… suppose the President’s entirely happy with the legislation he gets that he wouldn’t otherwise have gotten that contains a legislative veto and he is perfectly willing to implement it that way to give away his powers.

We wouldn’t let him do that, would we?

William C. Bryson:

No, we wouldn’t… you wouldn’t.

Antonin Scalia:

Well, why should we let the House do it?

William C. Bryson:

Because the House is not really, we think, giving away a power here.

What’s really… this is not an intra inter-branch dispute over the creation of an animal that the Constitution doesn’t recognize.

Antonin Scalia:

It’s an inter-House dispute which is just as important as far as separation of the various powers of the government is concerned.

Isn’t that significant?

William C. Bryson:

Your Honor, we… we think it is not.

We think it is… is a matter of sequence not a matter of the creation of a non-constitutional animal.

What happened in the legislative veto cases was that we had something that purported to be legislation which simply wasn’t because it was simply the views of the House of Representatives, not concurred in by the Senate and not presented and concurred to… and concurred in by the President.

In this case, all that’s involved is a matter of sequence in which a bill, which is clearly a bill, arguably did not originate in the House–

Antonin Scalia:

Well, that… but that’s just demeaning the importance of the constitutional provision.

You may be quite right that it’s not very important but that’s not for us to judge.

It was written there… just the sequence requirement is written there just as clearly as the bicameral requirement.

Why… why shouldn’t we give full effect to the one just as the other?

William C. Bryson:

–I think you give full effect, Your Honor, by allowing the House to decide whether there has been an Origination Clause violation.

I’m not suggesting–

Antonin Scalia:

Just as could allow the President to decide whether the… the bill veto clause has been… has been offended.

But we don’t.

William C. Bryson:

–You don’t and I think the difference is because in the legislative veto case you… you’re talking about the presentation to the court of something that simply is not a statute.

This is not a case in which something arrives to the court and which you can fairly say this is not a statute.

Antonin Scalia:

But that… but that begs the question.

It is not a statute if it hasn’t complied with the requirements for a statute.

William C. Bryson:

Well, Your Honor, let–

Antonin Scalia:

And if one of those requirements is… is this sequence, then it’s not a statute, just as something that is passed without both Houses is not a statute.

William C. Bryson:

–Well, I… I would disagree, Your Honor, because… to take the next clause that appears in the Constitution after the Origination Clause, the Presentment Clause requires when a bill is sent to the President, that if the President decides not to approve the bill, he sends it back to the House from which it originated.

Now, suppose that he sends to the wrong House and it originated in the House and he sends to the Senate.

The Senate then acts on the bill and overrides the veto and sends it to House and the House then overrides the veto.

It cannot be the case, I submit, that this Court would then strike down the statute on the ground that it was sent to the wrong House.

It becomes simply a matter of sequence.

Now, one could argue that that is not a bill, not an act, because the provisions set up in the Constitution were violated.

But, of course, that can’t be because a President who wanted his veto sustained would obviously always send it to the wrong House.

Antonin Scalia:

xxx is that what you are saying?

William C. Bryson:

Not… not really.

I think it’s a matter of–

Antonin Scalia:

That all these sequential things don’t… don’t amount to much.

Maybe… maybe you’re right.

William C. Bryson:

–No.

Antonin Scalia:

I… don’t want to say that.

William C. Bryson:

No, I think it’s a matter of constitutional remedy.

It’s a question of–

John Paul Stevens:

Well, Mr. Bryson, are you… are you relying on the… when you cite us to the second paragraph of Section 7 of the express language that if a bill passes both Houses and is signed by the President, even after a veto, it shall become law?

That’s a little different than the provision in the executive veto case.

William C. Bryson:

–Well, that certainly is support for the position that we are taking that… that once the House is satisfied that the Origination Clause has been fulfilled, that–

John Paul Stevens:

Well, couldn’t one argue that the entire Section 7 has been satisfied if the second paragraph has been satisfied?

William C. Bryson:

–One certainly could.

I mean, one has to argue to the contrary–

John Paul Stevens:

Which one couldn’t argue in the executive veto case.

William C. Bryson:

–That’s right.

That’s correct.

To make the contrary argument, one would have to say you have to satisfy each and every clause and each and every clause has to be fulfilled with respect… and that anyone could come in and enforce… insist on… compliance with that clause and that noncompliance results in the invalidation of the statute.

And we submit that both the… the history of the Origination Clause and looking at the second clause as well suggest that that can’t be the case.

Now, the… it’s important, I think, in focusing on the question of justiciability what the costs and benefits are of striking down statutes when in fact both the House and Senate, and indeed the President, have agreed that the statute is valid and have passed it.

The benefit of striking down a statute to a citizen is virtually negligible.

The House could, if it were presented with a bill that it believed came from the Senate and was a revenue bill, could always simply put a House number on the top of it, pass it and send it back to the Senate.

Where there is an Origination Clause violation alleged, all that has happened is that the House has failed to do that ministerial task.

Probably, and in most cases, because the House has failed to recognize the bill as a Origination Clause problem.

It has failed to–

Anthony M. Kennedy:

Well, of course, all of your comments to the effect that this is just ministerial and it seems to be rather a minor matter are quite inconsistent with the other prong of your argument in which you tell us the House has been very jealous to guard this prerogative.

William C. Bryson:

–Your Honor,–

Anthony M. Kennedy:

I would assume that this is a very important prerogative for the House.

And I would also assume that it might be that there is a majority of one party in the Senate and very slim majority of the same party in the House and that the minority members in the House would have a very great interest in the preservation of this… of this provision and not just supinely surrendering it.

William C. Bryson:

–Exactly.

They do… it is an important House prerogative.

But I think when you… when you say that what you are saying is this is something for the House to exercise.

It demeans, in some senses, the House’s prerogative if the courts are sitting behind the House and second-guessing the House.

It is the very importance of the prerogative for the House to enforce that in part cuts against judicial review after the House has decided that the prerogative is not applicable in a particular case.

William C. Bryson:

And… and the example is, I think, what would happen in a case like this, if in fact the Court started actively to review Origination Clause questions, if the House had even recognized this as an Origination Clause question, and it seems to me in light of the fact that this didn’t look like what… what anyone has considered revenue bills in the past, it would be perfectly understandable why the court did not… why the House did not recognize this as… as presenting an Origination Clause question.

But suppose it had, it recognized it as a potential problem for Origination Clause, instead of simply deciding finally and for once that this was not in the House’s view an Origination Clause problem, they would have had to go through the exercise of taking the statute that had been presented to them by the Senate and putting another House number on the top of it and sending it back to the Senate simply to ensure that that statute would be invulnerable to constitutional attack in the courts.

We submit that that really demeans the House’s role and doesn’t enhance it.

And it is an important prerogative.

It’s one which the House has guarded jealously.

But it’s also guarded it very well.

It’s important, I think, to point out that in two hundred years there’s only been one statute which has ever been struck down on Origination Clause grounds.

That was struck down by a district court and the opinion in that case, I think, is manifestly incorrect.

So that the sum total of… of the contribution of the judiciary in this area over… over two hundred years in second-guessing the House, to the extent that there has been any second guessing, has been one incorrect decision.

William H. Rehnquist:

Mr. Bryson, in Buckley against Valeo the court held that the provision in the Federal Election Commission Act providing for appointments violated the President’s authority under the Appointments Clause.

Now, the President signed that bill and we did not treat that as a waiver or kind of an expression of general satisfaction.

I think he might have made a signing statement.

I don’t remember.

So it seems to me that… that if… if you’re going to rely here on the kind of the general satisfaction of everybody involved with what went on, you have to say that conflicts between the House and the Senate, or possible conflicts, do not amount to the same thing as inter-branch conflicts.

William C. Bryson:

I think that’s certainly an important feature of our argument.

That what you are dealing with is not an inter-branch conflict when you are dealing with something that does not create, as I was trying to make the point with Justice Scalia… an animal that does not exist in the Constitution–

Byron R. White:

Well, you know, they’re just not going to… [inaudible] will never be here.

William C. Bryson:

–That’s certainly true.

But it will be here only if you allow an individual to come into court and claim that in spite of the satisfaction on the part of both entities of the House… of the–

Byron R. White:

Well, that isn’t conflict between the two Houses, that’s a conflict between–

William C. Bryson:

–Within–

Byron R. White:

–some other person and both of the Houses.

William C. Bryson:

–That’s right.

That’s the nature of the animal and that’s what we have here.

Anthony M. Kennedy:

Would you agree that bicameralism is one of the most important structural components of the Constitution insofar as The Federalist papers and Framers were concerned?

William C. Bryson:

I would.

I certainly would.

Antonin Scalia:

Mr. Bryson, I… I will… I will remind the Solicitor General of the argument you are making today at the time when the House and the Senate decide that it would be much more efficient to conduct all of their business through joint committees.

William C. Bryson:

Well, I–

Antonin Scalia:

And… and at that point I… I will say that the Justice Department seems to have taken the position that after all this is… this is a family affair, it’s just an internal dispute within the Legislative Branch and that’s really not as important as disputes between the separate branches.

William C. Bryson:

–Well, I think… without trying to give a global answer to all of these questions, I think it is wise to look at the language that the court used in Baker against Carr when the court said that it is necessary to make a discriminating inquiry into the precise facts and postures… posture of each particular case and the impossibility of resolution by semantic cataloguing.

I think one of… the wisdom of that point may be presented by this case in that you have to look at these things on a very narrow… on a very narrow basis.

You can’t simply make sweeping assertions that perhaps by–

Antonin Scalia:

Precisely my point, Mr. Bryson.

William C. Bryson:

–The… on the merits, if I can turn to the merits now.

The first question presented is whether the bill in this case that’s at issue was a bill for raising revenue within the meaning of this Court’s precedence.

We submit that if you look at the Nebeker case… that’s the Twin City Bank against Nebeker… and the Millard case… Millard against Roberts… it is absolutely clear that this is not a bill for raising revenue within the meaning of the Court’s precedence.

Those cases establish the proposition that if a statute sets up a program and arranges a means to pay for that program within the statute, that the means to pay for the program do not constitute the bill… a bill for raising revenue within the meaning of the Origination Clause even if the means for paying for the program turn out to be taxes and even if the money that’s assessed goes into the general treasury.

This was certainly the case in the Nebeker case, the Twin City Bank against Nebeker, where the Congress imposed on national banking associations the costs of setting up a national currency system in which… which was, as the court explained it, to benefit all the people.

These were, as described by the court, taxes on the national banking association.

They went into the general treasury.

But they were, as the court explained, for the purpose of paying for the program which the Congress had set up.

This case follows a fortiori from that one because in this case these were not denominated taxes and the payments in this case go not into the general treasury but into a special fund for victims.

Now, there are certain limited circumstances in which these funds may go into the general treasury.

But they are only in the rare case.

And the… the general structure of the statute is that the funds that are collected for the special assessments will go into a special fund for victims.

Sandra Day O’Connor:

Well, it’s your position then that if the government decided we needed a new national network of roads or needed to massively expend money to repair those we have and enacted an income tax increase for that purpose and put the money in the general revenue with the idea that it wanted to support the road building, no Origination Clause problem if the bill originates in the Senate.

William C. Bryson:

That’s… that’s correct, Your Honor, and I think the Millard case is almost… almost on point with that.

In Millard there was a project to do railroad construction in the District of Columbia which the Congress said, here’s the railroad construction project and we’re going to impose a property tax within the District of Columbia to pay for it.

This Court said no Origination Clause problem.

Now, I think in that case the House might very well argue that this should have originated in the House and would very possibly reject the Senate’s effort to originate that kind of legislation.

But this Court’s precedence would suggest that if the decision is for this Court to make, this Court would say no Origination Clause.

Sandra Day O’Connor:

Well, that’s a pretty extreme position.

I’m not sure you have to reiterate that kind of doctrine to resolve this case.

William C. Bryson:

Well, you don’t because this case, I think, is a good deal easier than that and I am just trying to lay out what the limits of the Court’s doctrine had… have been.

And I think in part what the Court is doing by setting the limits very broadly for what is going to be permitted in this area… what the Court is doing is responding in part to the… the difficulty… the… the… the reluctance to interfere with the resolution by the House and Senate of Origination Clause problems.

They are, in a sense, deferring very broadly without actually calling the question a political question.

That is why, I think you get decisions like Nebeker and Millard against Roberts which say that as long as you have a program which is being paid for in the same statute, that’s it.

You don’t have to inquire any further.

Now, the… the response–

Even if the tax that’s going to finance a project hits everybody?

William C. Bryson:

–Even if it hits everybody.

That’s right.

Which is the case in Millard, everybody within the District of Columbia.

There’s no reason to distinguish between a tax on everybody in the District of Columbia than a tax on everybody in the District of Columbia and a tax on everybody in the country for purposes of analysis.

Now, the Respondents argue that there is a difference between this case and some of the other Supreme Court cases that we have relied on.

And that is, they say, that in those cases there was a quid pro quo, the person who was paying the tax was getting a benefit.

First of all, we think that’s not so.

If you look at the Nebeker case, for example, there’s no direct benefit, no quid pro quo for the national banking associations that were picking up the bill for the creation of a national currency system that was to benefit everybody.

But, in any event, there’s a more basic objection to that point, which is that a… there is no logical difference between a tax that is a… or a fee that is imposed to… for which one pays for a benefit and a fee that one pays in order to compensate the government for a cost that one has imposed on the government.

Let me give you an example that I think illustrates this point.

Suppose there is a $100 fee for using the Yellowstone National Park because of a littering problem and the $100 fee is to be used to pick up the litter.

It can’t make a difference in the constitutionality of that statute as to whether it is deemed to be a fee which is a benefit to a person going into the park so that he will enjoy the park’s litter-free aspect versus a case in which he is being charged a fee because of what he may have contributed, or members of his class may have contributed, to the costs of picking up the litter.

It’s the same thing.

It is just two sides of the same coin.

In this case you have a class of people… people who have committed crimes… who, as a class, have imposed costs on others… the victims of crime… and Congress has decided to impose on that class, the people who have committed crimes, the costs, or some of the costs of that event, which have been suffered by… by victims.

There is a one-for-one, quid pro quo of sorts… a negative quid pro quo that’s perfectly consistent with the Respondent’s argument except that isn’t a so-called benefit to the… to the member of the class that’s paying the fee.

Finally, on origination, I would point out that this statute passes almost any test you could possibly imagine for origination.

The House was the first chamber to propose special assessments in the form that they first passed.

It was the first to pass the precise language that finds its… that found its way into the Special Assessments Act.

It was… the House introduced the bill in which that language was ultimately found.

Antonin Scalia:

What if the… what if the Senate is the first one to conceive of… of the bill on… on that theory?

I mean, let’s assume that a Senate Committee had first devised the notion, then the Senate would have originated the bill, right?

William C. Bryson:

I don’t think so.

Our position, Your Honor, is that there are any number of different ways that a bill can be deemed to have originated in the House.

The fact that there are… there are… that the Senate may have thought of the bill first, doesn’t foreclose the House from considering that it has originated the bill if it first passes–

Antonin Scalia:

The fact that the House thought of it first means that it originated in the House, but the fact that the Senate thought of it first does not mean that it originated in the Senate.

William C. Bryson:

–It sounds… it sounds odd, but I think that–

Yes, it does.

William C. Bryson:

–that’s the answer.

William C. Bryson:

Because otherwise–

Antonin Scalia:

It has to be the answer or you lose.

William C. Bryson:

–Well, I… not necessarily, Your Honor.

But… because in this case I think there are any number of different tests which are perfectly presentable, all of which come out the same way, as House originated.

Now, the only test that points in the direction of Senate origination is one which we think is an invalid test and that is the argument that Respondent makes that it is the House that first puts the final language into the package that has the number that finally passes.

The only thing the Senate did in this case with respect to the Victim Protection Act, was to take a House bill that had that Act in it and had been passed by the House, and stick it on to another House bill which did not have that language into it and then pass it and send it back to the House.

The only thing the Senate contributed to this case, and it says, was a staple, stapling the two bills together.

And yet this is deemed to be dispositive in favor of saying it was Senate originated.

That can’t be.

If the House… if the Senate had taken the two bills and turned them upside down so that the bill that had the Victim Act in it had… that bill’s number was the bill number that passed, then even Respondent would say this originated in the House.

John Paul Stevens:

Yes, but you would say it originated in the House if the converse happened, wouldn’t you?

William C. Bryson:

Yes, we would.

Because we say that any number of different ways that… of conceiving origination will satisfy the Origination Clause.

They aren’t necessarily–

John Paul Stevens:

The test is heads I win, tails you lose.

William C. Bryson:

–It is… that… it is a heads we win, tails we lose because of the difference–

Antonin Scalia:

Why?

I mean–

William C. Bryson:

–Because… because otherwise you get into the–

Antonin Scalia:

–Because otherwise you lose.

[Laughter]

William C. Bryson:

–No.

Otherwise the House loses, Your Honor.

[Laughter]

Otherwise the House loses.

I think the House is deprived of its right to make a determination that this is sufficient to satisfy the origination interests.

Harry A. Blackmun:

General Bryson, I suppose we don’t have to get to this issue if you prevail on the other one, whether it’s a bill for raising revenue.

William C. Bryson:

That’s right.

Thank you.

William H. Rehnquist:

Thank you, Mr. Bryson.

William H. Rehnquist:

Ms. Clarke.

Judy Clare Clarke:

Mr. Chief Justice, and may it please the Court:

The basic theme of the government’s brief and the government’s argument really is who cares.

Munoz pays an assessment and he complains about the constitutionality of the assessment simply because of the sequence in which the bill passed the Congress.

Who cares other than the House of Representatives about the sequence of bills.

And in this case, who cares because in fact the language of the House was passed by the Senate and sent back to the House.

So the bottom line question is why are we here and who cares.

And in reality, what the government’s argument does is overlook the significance of the Origination Clause.

I submit to this Court that the Framers did not see it as a matter of parliamentary procedure.

They did not see it as simply a matter of sequence.

They saw it as something that deserved the merit of going into the Constitution.

They brought it basically from England where it was a matter of practice that the most democratic House controlled the purse strings.

In fact, in the states in this country at the time of the Constitutional Convention, it was a matter of practice in the States.

Antonin Scalia:

But… but in England, the… the House of Lords could not amend the bill.

Once you say… I mean, as this thing came out of the Convention, it was compromise between those who wanted to follow the English practice, which said it had to originate in the lower House, and no amendment was permitted in the upper House, and those who didn’t want that provision.

So what they adopted was… was this compromise in which it has to start in the House but once it starts there, the Senate can do anything it wants to it.

Which… you’ve got to admit there’s not a whole… very sharp teeth to that provision at all.

Judy Clare Clarke:

It lost some strength in the compromise.

There’s no question.

And the people… the Framers who were very supportive of the Origination Clause were very angry about that and in fact did not sign off on the Constitution, in part, because of their dissatisfaction with the watering down of what they viewed as this very most important clause.

But the fact remains is that it did remain in the Constitution.

It was part of the great compromise of the Framers in the debate between the small and the large states, the power between those states.

The small states wanted an equal vote in the Senate and the large states said, well, we want the power to originate money bills, to originate revenue bills, because we are representative of the people.

Now the government has suggested in the briefing that popular elections of the Senators has decreased again, watered down even further the Origination Clause, when in reality it has not.

The House remains the most democratic body.

It’s elected and unelected, if it were, every two years.

The people of the United States can boot out the entire House every two years if they are dissatisfied with the way the… they’re being taxed, with the way the government is operating, with the size of the government.

The Senate, the people tend to forget, it’s a six-year turnaround and we cannot as easily get rid of those Senators.

The Senate, the same two Senators from Nevada have an equal vote as the same two Senators from California.

The California Senators represent probably eleven or twelve or fifteen million people.

Judy Clare Clarke:

Whereas, the Senators from Nevada represent what 350,000 to 500,000 people.

So the fact of popular elections has not diminished the clause at all.

It was the power–

Antonin Scalia:

Ms. Clarke, another clause of the Constitution says that a majority of each House shall constitute a quorum to do business.

It’s my understanding that unless there is a quorum call on the floor, it is quite common for bills to be passed when there is not a majority of the House present.

Is that litigable in court?

Could you object to the… to the statute that comes out of that process because there was not a quorum on the floor?

Judy Clare Clarke:

–I would object to that.

I… I think that before getting into a detailed discussion of that, we’d have to look at the significance the Framers gave to it.

However, under the precedence of this Court, I think that the enrolled bill doctrine may operate to stop consideration of what went into the bill and how many people were there at the time that it was voted.

There is some… some degree of a presumption of… of… of appropriateness when a bill comes out of the Congress.

I think for the Origination Clause you would have to look at… you would have to be able to look at the amendment of the Senate in order to give the clause any strength.

But yes, I believe that a litigant could come before this Court and say there was not a quorum present at the time the bill was voted on and, therefore, the bill is not valid if the Court changed–

Wow.

Judy Clare Clarke:

–the history of its precedence.

But to this point, the Court has said you don’t really look behind the bill.

In those kinds of circumstances, you assume that the seal of the clerk counted the adequate number of yeas and nays and that the–

Antonin Scalia:

Why don’t we assume the same here?

Judy Clare Clarke:

–Because you destroy the clause.

Antonin Scalia:

Just as you destroy the Quorum Clause.

Judy Clare Clarke:

Well… and, again, I say before we could get into the meat of that clause, we would have to look at the significance of the clause.

If in fact, the Quorum Clause–

Antonin Scalia:

The Quorum Clause is a lot more significant than this clause.

This clause just… just does not have that many teeth.

Judy Clare Clarke:

–Well, as I say, I believe that a litigant could come before this Court and say there was not a quorum, the bill was invalid.

Antonin Scalia:

Well, I think you’d probably have to say–

Judy Clare Clarke:

I think both of us have to say probably several things.

[Laughter]

The who cares argument really wraps very easily and very appropriately into the political question issue.

And the government acknowledges, I think, as it has to, that this Court has… has addressed the clause four times, that there is no textual commitment, and that in reality by finding a political question here, the Court would be writing itself out of separation of powers litigation completely.

Judy Clare Clarke:

As has been pointed out this morning, the President gave up the presentment right in Chadha when he signed the Immigration and Nationality Act.

The President gave up the appointment right in Buckley v. Valeo when… when the President signed the Federal Election Campaign Act.

And if the Court decides that the House gave up the prerogative of origination when it passed the bill, then the Court in reality would be writing itself out of political… out of separation of powers cases.

And I think that would be a very dangerous step for the Court and… and one that is not necessary at all.

The government’s position is that in reality the Court would be showing a lack of respect for the House.

Not at all.

Any time the Court strikes a statute as unconstitutional, that’s, I suppose, a lack of respect for the House and the Senate because they’ve passed the bill in fact.

The House has never assumed that it has the sole power over the… enforcing the Origination Clause.

And in fact in the briefs… throughout the briefs there’s a debate throughout the history of the House and Senate about what the Court would say and what the Court would do and that the Court has the final control over constitutionality.

That the Court… that the House has the ability to enforce the Origination Clause is really irrelevant.

The House has the ability not to pass unconstitutional laws.

The House has the ability and, in fact, has the constitutional obligation to enforce the Constitution and to act in a manner that it believes is constitutionally appropriate.

The significant thing here that distinguishes this case is that the House simply didn’t discuss it.

The Court may be in a little bit more different situation or in a deferential situation perhaps, if in fact the House had debated the clause or the applicability of the clause.

But you don’t have that here.

The government argues that there are a lack of judicially manageable standards.

Its definitions, its legislative history, its… the circuits have addressed the Origination Clause most recently really in the TEFRA litigation, the Tax Equity and Fiscal Responsibility Act.

The states routinely address their own origination clauses and, in fact, this Court has… has addressed the clause.

To the merits.

Is this a bill for raising revenue?

I, of course–

Byron R. White:

–What has been the… what has been the view of the House with respect to court authority to adjudicate Origination Clause cases?

Judy Clare Clarke:

–Well, the–

Byron R. White:

Has… has there been any clear view?

Judy Clare Clarke:

–I don’t know that there has been any clear view except for the fact that the House… members of the House have debated what the Court would do with this piece of litigation if they don’t take care of the origination problem themselves.

I know in the District of Columbia case–

Byron R. White:

Have they relied on prior cases as to whether or not this one kind of a bill or another?

Judy Clare Clarke:

–Yes.

There’s been great discussion of the Nebeker and Norton and Miller cases in the debates of the Congress over the… over the clause.

And, in fact members of the House attempted to bring a lawsuit in the District of Columbia over TEFRA, to stop the TEFRA bill from… from passing out of… out of a concern that it was violating the Origination Clause.

Judy Clare Clarke:

So there has been some concern of the House and an acknowledgment that the Court is actively involved.

But, to the merits.

Is it a bill for raising revenue?

We agree, as would be expected, with the Ninth Circuit’s position on that.

There is nothing on the face of the assessments provision that says what it is except that it stands alone as a part of Title 18, not within the penalty provisions of Title 18 but it stands alone as a mandatory assessment provision.

If you look to the legislative history, the legislative history says basically that it will generate needed income to offset the cost of the victim’s fund and will constitute new income for the federal government.

There is a cap on the size of the fund.

Now, Congress has raised that cap since 1984 from, I think it started at $100 million and now it is up to $150 million.

And there is an end to the life of that fund.

Originally 1988 was to end the fund.

Now 1994 is to end the fund.

So there is a time where the monies going into that fund will stop going into that fund and will go into the general treasury.

In… in fact in fiscal year 1986, a report of the Attorney General indicates that out of a concern over the budget deficit, $3.2 million of that assessment money was held… or, of the fund money was held from the fund to assist with deficit problems.

So, we agree with the Ninth Circuit that in fact the bill was one for raising revenue.

William H. Rehnquist:

How do you distinguish the Nebeker case on that point, Ms. Clarke?

Judy Clare Clarke:

With the National Banking Act.

Nebeker and Norton and Roberts, the three cases really to deal more directly with the issue, were situations where you pay and you get.

There is a direct relationship between the person paying the tax and the person receiving the benefit in Nebeker, the National Banking Act.

Those banks that chose to become part of the national currency system paid the fee and they got the direct benefit in return.

The same thing happened in… in Norton with the postal money order system.

William H. Rehnquist:

What… what was the direct benefit that the banks got in Nebeker?

Judy Clare Clarke:

An ability to become… to participate in the… in the currency system and to have their currency freely traded among all of the banks.

The banks could choose not to go into the national… become part of the National Banking Act.

They could choose not to pay that fee and not to participate in the system.

But the… the Act was really set up to encourage the banks to become part of this system because they would in the long run stand to make money and to do better if they participated in the system.

But they paid and they got.

In Norton, the postal money order system, you pay, you get.

You pay for the postal money orders, you get the benefit of using the postal money orders.

There was a direct relationship.

Now I agree the that the Court has never really in those three cases discussed the fact of the direct relationship.

Judy Clare Clarke:

But I think a reading of those three cases compels the conclusion that it’s a pay as you go.

I pay.

I get.

And in this case the incidental revenue test simply doesn’t work unless it’s a you pay, you get.

Because in reality, the question that Justice O’Connor asked, could happen.

The Senate could originate special purpose legislation, identify a class of people to be taxed, identify a purpose and avoid the origination requirement.

We could write the Origination Clause out of the Constitution, if the incidental revenue test is read in any manner other than to compel a direct relationship between the person paying and the person receiving.

The government, in order to defeat the revenue raising argument, has also argued that the clause… that the assessment provision is in reality a penalty, a criminal sanction and they point really to two… two identifiable things.

One, the assessment is a consequence of a criminal conviction.

Yes, it is.

Two, the amount of the assessment differs between a felony and a misdemeanor.

Yes, it does.

But that is where the similarity with penalties stops entirely.

It is not in the sentencing provisions of Title 18.

It is not identified in the statute in Title 18 that identifies sentencing options… probation, fine, imprisonment, notice to victims, forfeiture and restitution.

It is not one of the identified sentencing options.

It is not in any way connected to the defendant.

It is not in any way connected to the harm caused by the defendant which traditional sentencing, even under the Sentencing Reform Act, is connected… the harm is connected to the… to the penalty.

It is not like a fine except in the manner in which it’s collected, because in imposing a fine the Court is statutorily mandated to consider the ability of the defendant to pay, the burdens on the defendant’s family should he or she have to pay a fine, the amount of the illegal gain to the defendant.

There are statutorily defined considerations in imposing a fine.

Antonin Scalia:

For the… for the quantity of it.

But above… below the minimum you have to impose the minimum.

Judy Clare Clarke:

I’m sorry.

Antonin Scalia:

If the… if the statute provides for a fine in a certain range, the discretion only extends up from the minimum.

Judy Clare Clarke:

To my knowledge, there are no statute that… that require a minimum payment of a fine.

I think they would run into severe equal protection problems and I think that probably is why the statutes don’t.

Now, there are statutes that require a minimum in term of imprisonment minimum… a minimum and then there’s a maximum range.

But to my knowledge, there are no criminal statutes that require the minimum imposition of a fine.

Now, the sentencing guidelines superimpose on top of the… of the criminal code.

But the guidelines also themselves say look to the ability of the defendant to pay and do not impose a fine unless the court finds that the defendant has the ability to pay.

Judy Clare Clarke:

So it’s a different situation.

Also in the… in the failure to pay a fine.

That can be a revocation of probation.

You can be resentenced for failing to pay a fine and you can be prosecuted for the willful failure to pay a fine.

These assessments are treated completely differently.

They are simply collected bureaucratically in the same way that… that a fine is collected.

The argument that the government makes today on where did the bill originate, when you get right down to it, what the government seeks to do is to have… is to shield from scrutiny a Senate amendment of a House bill.

The government in reality says the House passed a bill 648, the joint resolution, and the House passed 5690 and the House sent 648 over to the Senate and then the House sends 5690 over to the Senate and by means of a staple, the Senate packs the two together and sends them back to the House.

That’s not what happened.

648 passes, 5690… we need to look at what 648 was.

It was the continuing appropriations for fiscal year 1985, it was us running the government basically.

And the House tacked onto that the Senate crime bill, S. 1762, that the Senate had passed in February, This is September.

So the House chose to take the Senate crime bill together with the appropriations bill and send it to the Senate.

5690 was the House anti-crime bill.

Many of the provisions were similar to S. 1762 that had already gone.

They passed 5690 and sent it over to the Senate.

What the Senate does is take language from 5690.

They don’t by means of a staple, tack 5690 on to 648.

They take language from 5690 and send it back to the House.

William H. Rehnquist:

Ms. Clarke, was there any substantial opposition to either of these bills?

Judy Clare Clarke:

Well, no.

And you have to look at… at the way these bills have raced through the Congress.

William H. Rehnquist:

Well… the reason for my question is… we’re really talking about a fairly technical violation of the clause in question here, the… the Origination Clause.

It… it doesn’t look as if the Senate were trying to strong-arm the House or something like that.

Judy Clare Clarke:

By… by its very nature, the Origination Clause is talking about who passes it first and… and by its very nature, you can always say, well, the House passed it ultimately.

Who cares?

It was a techaical violation.

You can say that about the search warrant that the police officer could have gotten but didn’t.

William H. Rehnquist:

Yes… yes, but somehow the search warrant that the police officer could have gotten but didn’t doesn’t seem quite the same to me in terms of… of what we’re talking about as a practical matter.

And I realize its in the Constitution and perhaps it should be enforced just as rigorously as any other provision.

William H. Rehnquist:

But it… it just does not seem that it amounts to much more within the technicality of this particular case.

Judy Clare Clarke:

Well, here’s the problem.

It calls upon the Court to evaluate the test for origination and the government suggests there can be a variety of ways to originate bills.

Origination indicates, by its very language, that you originate once.

If the language test is the test adopted by the Court, then this Court would completely topsy-turvy the existing procedures of the House which this case, from Respondent’s point of view, does not require the Court to do.

Right now, if the Senate passes a revenue bill and sends it to the House and the House is now considering a revenue bill and it’s the same revenue bill, let’s say.

It is the same language.

The staffers have talked and the Senate just gets their bill over to the House first.

The House will not simply insert its own language after the enacting clause.

They will set the Senate bill aside.

They will table the Senate bill and they will pass the same bill with a House number on it and send it back to the Senate.

If the language test is the test for origination, it will stop that procedure from happening because the Senate would have passed the language first.

But you don’t understand.

The language test only applies when the result is to say that it did originate in the House.

Then the language test applies.

The language does not apply–

–Well, that’s exactly right.

That’s the problem.

That’s exactly… could we trade places for just a moment?

[Laughter]

That’s exactly right.

A further problem with the language test is the context in which the language comes from and gets stuck into.

We’ve had cases, arguments, hours and hours over commas and semicolons, capital letters and breaks in sentences.

So the language test could throw us into an enormous problem with… with the Origination Clause and it would also stop the House from doing precisely what it’s done for hundreds of years.

And that is take Senate language and turn it into a House bill.

The clause does not say all language raising revenue.

It says all bills raising revenue.

We’re not talking about language, we’re talking about bills.

John Paul Stevens:

May I ask you perhaps a stupid question?

When in your view did this piece of legislation first earn the title of being a bill for raising revenue?

John Paul Stevens:

At what stage in the legislative process did it become a bill?

Was there a bill for raising revenue that was later enacted?

Judy Clare Clarke:

It was always a bill for raising revenue because of–

John Paul Stevens:

Well, what do you–

Judy Clare Clarke:

–because of the arguments–

John Paul Stevens:

–mean by always because you have got both Senate and House and… at what point in time would you say this bill originated, the bill for raising revenue?

Judy Clare Clarke:

–When the Senate stuck it into the bill that passed.

When the Senate stuck it–

John Paul Stevens:

In other words, when the two… when the two pieces previously passed by the House were stapled together as your opponent described.

Judy Clare Clarke:

–It was not a stapling together–

John Paul Stevens:

Well, but whenever that happened–

Judy Clare Clarke:

–Yes, in the Senate.

John Paul Stevens:

–And then… and the Senate gave it a new number at that time?

Judy Clare Clarke:

No.

It went back as H.J. Res.

648.

It was still part of the House bill.

It was… in reality what we’ve got is an amendment to the House bill.

And the question is… then becomes, can the Senate amend a House appropriation and crime bill.

And we get to really the final argument of… of the case.

The government wants the Court to–

John Paul Stevens:

Well, just be sure… I want to be sure I haven’t lost your answer.

I don’t mean to interrupt, but you’re saying when the Senate passed the amended version of H.J. 648, that was when it was first a bill for raising revenue?

Judy Clare Clarke:

–That was when it originated.

John Paul Stevens:

When it originated.

Judy Clare Clarke:

Yes.

Thank you.

Judy Clare Clarke:

The amendment process–

John Paul Stevens:

Of course, there’s… there’s a textual problem with that because it couldn’t be in the language of Section 7 a bill for raising revenue unless it originated in the House.

Judy Clare Clarke:

–Well, that… that would be the tail chasing the cat.

John Paul Stevens:

Well, that’s what the Constitution says.

Judy Clare Clarke:

It’s–

John Paul Stevens:

One of the requirements for it to be a bill for raising revenue is that it must have originated in the House.

Judy Clare Clarke:

–Well, no, I think that is backwards… that bills for raising revenue must originate in the House, not just because they originate in the House they are bills for raising revenue.

That–

John Paul Stevens:

Well, it can be a bill even though it did not… it can be a bill… well, I understand what you’re saying but I’m not sure it squares with the text.

Judy Clare Clarke:

–All bills for raising revenue must originate in the House of Representatives.

And so–

Judy Clare Clarke:

Therefore, if it originates in the House–

John Paul Stevens:

–Ergo something that doesn’t originate in the House is not a bill for raising revenue.

[Laughter]

Judy Clare Clarke:

–Well, then I could never be here.

You’re right.

If… if the case is decided that way, we might as well go off on political–

–not justicial because the House can always cure it.

Judy Clare Clarke:

–There you go.

That’s what I was going to say.

We could just go off–

John Paul Stevens:

No, your argument then would be… let me… let me trade places with you for a minute–

[Laughter]

Judy Clare Clarke:

–Happily.

John Paul Stevens:

Your argument then would be that when it became a bill for raising revenue… when it first passed the House and it never subsequently passed the Senate.

Judy Clare Clarke:

It became a bill for raising revenue when it first passed the House.

When the House passed the bill it didn’t have revenue in it.

John Paul Stevens:

No.

I’m saying when it went to the House… the House later passed it didn’t it?

Judy Clare Clarke:

That’s right.

But the House didn’t–

John Paul Stevens:

But if that’s the first time it became a bill for raising revenue, did the Senate pass it a second time–

Judy Clare Clarke:

–You never had the question.

–and the answer is no.

Judy Clare Clarke:

Yes, the Senate passed it a second time.

But it originated in the Senate.

You would never have the question if you have that kind of circularity.

Thurgood Marshall:

Yes, you would.

Don’t you need some–

–You would never have to be here.

Judy Clare Clarke:

Thank you, Mr. Justice White.

Thurgood Marshall:

Don’t you need some–

–And you would lose.

–additional language that–

Judy Clare Clarke:

No, we don’t want that.

Thurgood Marshall:

–language like bills and amendments must originate in the House?

Judy Clare Clarke:

Well, in reality we do have that because the… but the Senate may propose or concur with amendments as on other bills as has been read to me–

Thurgood Marshall:

I’m talking about the one phrase… all revenue bills must originate in the House.

Judy Clare Clarke:

–That’s correct.

Thurgood Marshall:

If it said all bills and amendments must originate in the House, you’d be pretty–

Judy Clare Clarke:

It doesn’t say that.

But it–

Thurgood Marshall:

–It sure doesn’t.

Judy Clare Clarke:

–No, it doesn’t.

Thurgood Marshall:

And that is your problem.

Judy Clare Clarke:

No, I don’t think that’s… that’s my problem at all.

That would be more the… the government’s problem.

Because the Senate can amend a House revenue bill, but the bill, as it comes to the Senate, must be a revenue bill and 648 was not a revenue bill.

Now, that’s where we get into the final argument basically and that is can the Senate amend a House appropriations bill?

I say we don’t have to reach that in this case because, as the district court found, and the government didn’t complain and, as the court of appeals found, the amendment was to crime control.

And you don’t even have to go beyond and look at the appropriations.

And if you do go beyond and look at the entirety of the bill, nothing in 648… I don’t think this Court has to address the appropriation context, but nothing in 648, either the appropriations portion or the crime portion, were revenue raising.

And that’s the bottom line.

Judy Clare Clarke:

If there are not further questions.

Antonin Scalia:

Well, I’m… I’m curious… I assume it’s… I assume it’s the same answer you gave to the quorum provision.

But what about the horrible that the government put forward, and that is the President returns a vetoed bill to the wrong House–

Judy Clare Clarke:

I think that–

Antonin Scalia:

–and… and then they proceed to override but in the wrong sequence?

Judy Clare Clarke:

–I think that they could simply redo the bill and repass it to the President.

Oh, I know that they could, but they didn’t.

They did it in the wrong order and the bill is then promulgated and there is a lawsuit and you–

–I think there’s a problem with that.

I think I have to say that.

William H. Rehnquist:

Thank you, Ms. Clarke.

Mr. Bryson, you have three minutes remaining.

William C. Bryson:

Thank you.

Briefly, on the question of Nebeker and whether this was a voluntary contribution as it was characterized, I think, by the Respondent.

Sure, the national banks associations could have stop being national banking associations and wouldn’t have had to pay the tax that was imposed on them.

But I could avoid the income tax by quitting my job.

The fact is that as long as they wanted to remain in the national bank system, they were required to pay the tax for a benefit which the Court specifically described as being for all the people.

So this isn’t a quid pro quo.

And in any event, this case satisfies the test… the very test that Respondent argues for which is, and I think I am quoting…

“a direct relationship between the person paying and the person receiving. “

The person paying here is the person who is engaged in crime.

The person receiving is a person who is a victim of crime.

This was very specifically acknowledged by Congress to be a direct relationship between the person who caused the injury and the person who suffered the injury.

So it does satisfy the quid pro quo.

It’s a negative quid pro quo.

Antonin Scalia:

No, but it’s not the government giving and… and the taxpayer receiving.

I mean, it’s quite a different thing.

William C. Bryson:

No, because the government is acting as a stakeholder for the–

Antonin Scalia:

And in a sense you say, no, it’s for the benefit of all the people.

Well, every statute is for the benefit of all the people.

Antonin Scalia:

The government doesn’t pass any statute that isn’t purportedly for the… for the common good, not for the–

William C. Bryson:

–Well, it is–

–Right?

William C. Bryson:

–It was deemed to be the common good to benefit this particular class of individuals.

It was the class that was unknowable in advance.

Antonin Scalia:

That’s all that she was saying about the earlier cases that… that, sure, they… they benefitted all the people ultimately but proximately they benefitted the banks.

William C. Bryson:

Well, but proximately, we submit that… that it didn’t benefit the banks.

The banks happened to achieve a general benefit of being able to participate in a more efficient system.

But it was not a case in which they were getting something for which they were paying and getting full value for what they were paying.

They were supporting a system that was a nationwide currency system that was having some marginal benefit to them no doubt.

But basically it was for the purpose of benefitting all the people.

Anthony M. Kennedy:

You… you cannot characterize this as using the courts to aid victims?

William C. Bryson:

It is in a sense using the courts to aid victims in that the courts are one of the agencies that collects the money that ultimately goes to the victim.

But it is Congress that has set up a system under which the victims are to be the beneficiaries and the defendants are to be the people who are supporting, in part, this program.

Anthony M. Kennedy:

So this is not like a user fee… the use of the courts, even though it’s involuntary.

It’s somewhat twisted–

William C. Bryson:

I think not good use of the courts.

It is a fee imposed on people who impose costs on others just as in my example, the fee charged to people who use the national park in order to clean up the litter that they have left.

The sunset provisions of the Act were designed, as the legislative history makes clear, not to allow all this money to go into the treasury at the end of X period of time, but to enforce… to force Congress to reconsider the statute.

William H. Rehnquist:

Thank you.

Mr. Bryson.

The case is submitted.