United States v. Munoz-Flores/Concurrence Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice O'CONNOR joins, concurring in the judgment.

In my opinion, a bill that originated unconstitutionally may nevertheless become an enforceable law if passed by both Houses of Congress and signed by the President. I therefore believe that it is not necessary to decide whether 18 U.S.C. § 3013 was passed in violation of the Origination Clause.

* The Origination Clause appears in Article I, § 7, of the Constitution, which describes the procedures that the two Houses of Congress and the President shall follow when enacting laws. ^[1] The Origination Clause is the first of three Clauses in that section. The Clause provides that "All Bills for raising Revenue shall originate in the House of Representatives," but it does not specify what consequences follow from an improper origination.

The immediately following Clause, however, does speak to consequences. The second Clause of § 7 says, among other things, that "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States." An improperly originated bill passed by both Houses would seem to be within a class comprising "Every" bill passed by both Houses, and it therefore seems reasonable to assume that such an improperly originated bill is among those that "shall . . . be presented to the President." The Clause further states that if the President returns to Congress a bill presented to him, and if two-thirds of each House thereafter approve the bill, "it shall become a Law." No exception to this categorical statement is made for bills improperly originated.

The second Clause of § 7 later provides that "any Bill" not acted upon by the President within 10 days "shall be a Law, in like Manner as if he had signed it." In this instance, one express exception is made: If Congress adjourns before the 10-day period expires, the bill "shall not be a Law." Again, no exception is made for bills improperly originated.

It is fairly inferred from this language that some bills may become law even if they are improperly originated. It does not, however, necessarily follow that the bill now at issue became law even if improperly originated. That bill is not governed by the provisions just discussed, because it was signed by the President and hence did not become law by virtue of either Presidential inaction or the override of a veto. The language in § 7 dealing with bills signed by the President speaks in terms of necessary, rather than sufficient, conditions: The Clause states only that bills must be presented to the President and that if "he approves he shall sign it." The Clause does not say that any bill signed by the President becomes law, although it does later say that a bill not acted upon becomes law "in like Manner as if he had signed it." In my view, the sufficiency of the procedural conditions in the second Clause is reasonably supplied by implication. I accordingly interpret § 7 to provide that even an improperly originated bill becomes law if it meets the procedural requirements specified later in that section.

My reading of the text of § 7 is supported by examination of the Constitution's purposes. I agree with the Court that the purpose of the Origination Clause is to give the most " 'immediate representatives of the people' "-Members of the House, directly elected and subject to ouster every two years-an "effectual weapon" for securing the interests of their constituents. Ante, at 395, quoting The Federalist No. 58, p. 359 (C. Rossiter ed. 1961). For four reasons, I believe that examination of this purpose supports the view that the binding force of an otherwise lawfully enacted bill is not vitiated by an Origination Clause violation.

First, the House is in an excellent position to defend its origination power. A bill that originates in the Senate, whether or not it raises revenue, cannot become law without the assent of the House. The House is free to rely upon the Origination Clause to justify its position in a debate with the Senate, regardless of whether constitutional concerns alone drive the House's position. See Bessette & Tulis, The Constitution, Politics, and the Presidency 8-16, in The Presidency in the Constitutional Order (J. Bessette & J. Tulis, eds., 1981) (discussing ways, aside from judicial enforcement, in which the Constitution shapes political behavior). The Senate may expect that an improperly originated bill will confront a coalition in the House, composed of those who oppose the bill on substantive grounds and those who would favor it on substantive grounds but regard the procedural error as too important to ignore. Taxes rarely go unnoticed at the ballot box, and there is every reason to anticipate that Representatives subject to reelection every two years will jealously guard their power over revenue-raising measures. ^[2]

Second, the House has greater freedom than does the Judiciary to construe the Origination Clause wisely. ^[3] The House may, for example, choose to interpret "Bills for raising Revenue" by invoking a test that turns largely upon the substantive economic impact of the measure on society as a whole, or may determine the House of origination by identifying the legislators who were most responsible for the content of the final version of the bill. If employed by the House, rather than the Judiciary, inquiries so searching obviously create no tension between enforcement of the Origination Clause and the democratic principle of the legislative process-a principle which the Clause itself is designed to serve. The House may also examine evidence, including informal private disclosures, unavailable (or incomprehensible) to the Judiciary.

Third, the House is better able than this Court to judge the prejudice resulting from an Origination Clause violation, and so better able than this Court to judge what corrective action, if any, should be taken. The nature of such a power may be comprehended by analogy to our own recognition that a constitutional defect in courtroom procedure does not necessarily vitiate the outcome of that procedure. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). I see no reason to believe that a defect in statehouse procedure cannot also be harmless: A tax originated in the Senate may nevertheless reflect the views of the people as interpreted by the House, whether because of a coincidence in the judgment of the two branches or because the House directly influenced the Senate's labor. The House's assent to an improperly originated bill is unlikely to be given if its Members believe that the procedural defect harmed the bill's substance. Yet, it would be difficult to imagine how this Court could reasonably assess the prejudice resulting from any particular Origination Clause violation. On my interpretation of § 7, the Constitution confides this responsibility to the House of Representatives instead. One consequence of this interpretation is that an expansive construction of the Clause by the House need not impose spurious formalities, since spurious violations may be ignored.

Fourth, the violation complained of by respondent is unlike those constitutional problems which we have in the past recognized as appropriate for judicial supervision. ^[4] This case is not one involving the constitutionality of statutes alleged to effect prospective alterations in the constitutional distribution of power. See INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). No defect in the representative process threatens to impede a democratic solution to the problem at issue. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). No claim is made that this statute deals with subjects outside the sweep of congressional power, see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), or that the statute abrogates the substantive and procedural guarantees of the Bill of Rights, see, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Nor, finally, does respondent contend that the Constitution has been violated because action has been taken in derogation of structural bulwarks designed either to safeguard groups specially in need of judicial protection, or to tame the majoritarian tendencies of American politics more generally. See Chadha, supra; Powell, supra; United States v. Carolene Products, 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 783-84, n. 4, 82 L.Ed. 1234 (1938); Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). Indeed, this case presents perhaps the weakest imaginable justification for judicial invalidation of a statute: Respondent contends that the judiciary must intervene in order to protect a power of the most majoritarian body in the Federal Government, even though that body has an absolute veto over any effort to usurp that power. The democratic structure of the Constitution ensures that the majority rarely if ever needs such help from the Judiciary. ^[5]

These considerations reinforce my construction of the text of § 7 and lead me to conclude that the statute before us is law regardless of whether it was improperly originated. As a practical matter, this reading of the Constitution precludes judicial review of alleged violations of the Origination Clause. It is up to the House of Representatives to enforce that provision by refusing its consent to any revenue bills that originate in the Senate. ^[6] The Court's holding, however, may itself be not too far removed from such a consequence: The Court's essential distinction between revenues allocated to particular programs and those allocated to the General Treasury, ante, at 397-398, tends to convert the Origination Clause into a formal accounting requirement, so long as the House consents. ^[7]

In all events, I think that both a literal and a practical interpretation of the Origination Clause is consistent with the conclusion that a revenue bill becomes a law whenever it is passed by both Houses of Congress and duly signed by the President. Accordingly, I concur in the Court's judgment.

Notes

1. The first two paragraphs of § 7 provide in full:
2. The Court properly observes that the House has an interest in upholding "the entire Constitution, not just those provisions that protect its institutional prerogatives." Ante, at 392-393 (emphasis in original). I agree. It is, however, true that even if the House should mistake its constitutional interest generally, it is unlikely to mistake its more particular interest in being powerful: That specific interest is instrumental to any broader conception the House might have of its duties and interests.
3. Respondent observes that the House "has not assumed that it is the final arbiter of the Origination Clause," but has instead "looked to court decisions for guidance in determining whether to return bills to the Senate." Brief for Respondent 11. Although respect for our power of judicial review is a constitutional necessity in the ordinary case, it is not clear that the House's deference is either necessary or wise with respect to this issue. Indeed, a decision by this Court to pass upon Origination Clause questions may be an unfortunate inducement to the House to forbear from an independent inquiry into the interpretive issues posed by the Clause.
4. This observation bears upon the plausibility of an interpretation of the Origination Clause that effectively insulates origination problems from judicial review. See Cohens v. Virginia, 6 Wheat. 264, 384-385, 5 L.Ed. 257 (1821).
5. I agree with the Court that the Origination Clause is intended to "safeguard liberty." Ante, at 395. Indeed, this must be true, in a general sense, of almost every constitutional provision, since the Constitution aims to "secure the Blessings of Liberty." U.S.C.onst., Preamble. Of course, the Constitution aims as well to create a Government able to "promote the general Welfare," but liberty and welfare should ultimately coincide.
6. The President obviously might choose to enforce the provision by vetoing an improperly originated bill. It seems clear that the President has the power to do so; it is less clear whether the President has any constitutional duty to police the internal processes of the Congress, or whether he has instead a constitutional duty to defer to Congress on such matters. These issues must be determined by the President; they are not ones we need resolve. It is noteworthy, however, that Article I, § 7, does supply a textual basis for inferring that the President has some constitutional responsibility with respect to matters of origination: Upon vetoing a bill, the President must return it to the House "in which it shall have originated." That phrase is manifestly ambiguous in the case of an improperly originated bill.
7. The Court's interpretation of the Clause does not appear to prevent the House from interpreting the Clause more aggressively, although the Court does effectively deny the House the power to "deem harmless" a violation of the Clause.