Yale Law Professor Jack Balkin has a September 17, 2012 article in The Atlantic magazine, titled “The Right Strikes Back: A New Legal Challenge for Obamacare”.

It’s an interesting article, but I’m unpersuaded by Balkin’s defense of the legislation. As you may recall, the Constitution requires all revenue bills to originate in the House of Representatives, not the Senate.  Specifically, the Origination Clause says: “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”.

In the case of ObamaCare, the Senate evaded this requirement by taking an unrelated House bill (“Service Members Home Ownership Tax Act of 2009”), deleting all of its contents after the enacting clause, and then inserting the ObamaCare legislation.  The Senate made matters even worse by abandoning plans to give the bill final approval after the House okayed the bill.  That’s because the Senate Democrats lost their filibuster-proof majority, and so their only action on this ObamaCare legislation was to inject it into an unrelated House Bill.  Balkin says this was constitutionally kosher, even though the Supreme Court has now officially designated the legislation as a revenue-raising bill.

Balkin makes two main points about the Origination Clause. First, he urges that we should all pay attention to the phrase that says the Senate may “propose or concur with amendments as on other bills”.  Second, Professor Balkin urges a broad interpretation of the word “amendment” so that it includes striking out the entire text of a bill (even the title!).  That’s a very questionable interpretation of the word “amendment”.  But let’s suppose, for the sake of argument, that we go along with Balkin’s two suggestions.

Consider the phrase “concur with amendments”.  If we are to broadly construe the word “amendments” then it must encompass both amendments from the House as well as amendments from the Senate.  So, the Senate can concur regarding a bill from the House subject to Senate amendments, or alternatively the Senate can concur in amendments from the House.  Either way would be “concurring with amendments” (broadly construed), and either way the Senate would be giving final approval to the bill.  And either way the Senate would be concurring with something the House has done (as distinguished from concurring with the final bill).  But I am very unconvinced that the Senate concurred with anything the House had done, in any meaningful sense.  Concurring with a bill number (or concurring with the final legislation signed by the President) seems insufficient to meet the level of concurrence required by the Origination Clause.

The full phrase “propose or concur with amendments as on other bills” does allow the Senate to propose amendments without concurring to anything, but surely this must mean that the bill has to eventually return to the Senate for final concurrence (otherwise the word “propose” would be superfluous).  So the question boils down here to whether the Senate concurred with the House bill subject to Senate amendments.  I am very unconvinced that the Senate did so.  After all, the Senate did not concur with anything whatsoever in the House bill, not even the bill title.

Professor Balkin might answer that this is all very logical, but that Senate precedent firmly supports the “strike and replace” procedure.  Putting aside that the Supreme Court has not approved this evasive procedure, my argument here is not against strike-and-replace, but rather against strike-and-replace-and-never-concur.

The last four words of the Origination Clause require us to consider practice with regard to non-revenue bills.  How often has the Senate done this for non-revenue bills?  My educated guess is that, for non-revenue bills, the Senate has never used strike-and-replace, much less strike-and-replace-and-never-concur.  In any event, I concur with what Balkin wrote, except for every word of it.

By the way, I do not dispute that there was ultimately a concurrence of the House and Senate on this bill.  But that was because the House concurred with the Senate, not vice versa.