If The Health Care Law Is Really A Tax Law, Is It Doomed On Procedure?

Now that the dust is settling a bit on the SCOTUS decision on the Patient Protection and Affordable Care Act, questions are starting to come in fast and furious (no, not that fast and furious). One of the most confusing aspects of the decision hinges on the characterization of the mandate as a tax. If that’s true, it’s been reasoned, wouldn’t the introduction of the law by the Senate be a violation of the Constitution?

Not exactly.

The Senate and the House of Representatives are considered equal when it comes to legislative functions and powers with a few key exceptions. One of the most important exceptions is that, under the Constitution at Article 1, section 7.1, only the House of Representatives may originate revenue and tax bills:

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.

So, it stands to reason, shouldn’t this bill be raised first in the House and not the Senate? It was, technically. And I think a little “how a bill becomes a law” primer is in order (sadly, unlike in my childhood, there won’t be any animated, dancing bills in this description).

A member of Congress, either a Representative or a Senator, can introduce a bill for consideration. As the legislator who introduces the bill, he or she is considered the bill’s sponsor – and a bill can have one or more sponsor and/or co-sponsors.

After a bill or resolution has been introduced, it is referred to committee (or committees) according to the rules. The point of the committee is to consider the bill in detail, so as, ostensibly, not to waste time in the Senate or House on bills that will not garner enough support to move on. If a bill has enough momentum or support in committee, it will go to a vote and then move on to the full House or Senate; at this point the bill is written up, published and reported.

Eventually, the bill goes to the calendar of the House or Senate for debate and a vote. If it passes either the House or the Senate, it goes to the other where is can be approved, rejected or amended. If there are significant differences between the House and the Senate versions of a bill, a committee is formed to try and work out the differences.

Both the House and the Senate must pass an identical version of the bill in order for it to become law; when that version is passed, the bill is considered “enrolled” and goes to the President for signature.

The President can sign the bill into law, veto the bill or do nothing. If the President does nothing for ten days and Congress is in session, the bill becomes law. If the President does nothing for ten days and Congress has adjourned its second session, it’s considered a pocket veto and the bill dies. Congress can override a veto but it’s not very common: doing so requires a 2/3 vote of both the House and Senate. There have been 2564 vetoes since the system was established (FDR was the most prolific with 1/4 of all vetoes) and only 110 of those have been overridden.

So with that background, here’s what happened to the health care act. The original bill was introduced in the House of Representatives on September 17, 2009, as H.R. 3590, Patient Protection and Affordable Care Act. It was sponsored by Rep. Charles B. Rangel (D-NY). The measure went to committee (Ways and Means, then chaired by Rep. Rangel) and then to the floor of the House where it was debated on October 7, 2009 and eventually passed with a vote of 243-173 (you can see the roll call here).

The measure went to the Senate on October 8, 2009. The Senate didn’t like the House’s version of the bill and instead focused on its own version of the bill. The Senate passed its own version of the bill as an amendment to the House’s bill on December 24, 2009 with a vote of 60-39 (you can see the roll call here).

But, as noted above, the two versions have to conform for the bill to be signed into law. So, both the House and the Senate went back to the drawing board. Procedurally, the order was important here: the House eventually agreed to the Senate’s amendments to its own bill – a key distinction – since the bill had to have originated in the House because of the revenue component. The House agreed to the Senate’s amendments to the House’s own bill on March 21, 2010 by a narrow vote of 219-212 (you can see the roll call here).

The enrolled bill was sent to the President on March 22, 2010. On March 23, 2010, President Obama signed the bill, making in Public Law 111-148 (you can read it here).

So there you go. Technically and procedurally, a House bill because it had to be… Substantively, a Senate bill. The result was a public law.

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