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Tax Reform Bill Brings Up Questions About The Constitution’s Origination Clause

Republicans have failed to deliver on every major promise they made during the 2016 campaign. That, raises the stakes on the tax proposal winding its way through Congress.

The House bill that recently passed is essentially being completely abandoned by the upper chamber, and the new Senate bill being written in its place will either end up as law without any changes, or it will go down in flames along with every other major legislative effort this year.

The challenge Republicans face is that any difference between the House and Senate bills would have to be reconciled in a conference committee, unless the House turns around and passes the very same version that the Senate passes. A conference committee, by contrast, would produce a new bill that Democrats will simply be able to filibuster.

Not a single Democrat in the Senate is expected to support the Trump tax cuts, so all negotiations taking place are done solely within the Republican caucus.

And given that eight Republican senators have expressed varying degrees of opposition to the bill as presently constituted, Trump can only afford to lose two Republicans if he wants the bill to survive.

Deft footwork worthy of the Affordable Care Act?

Even so, final passage is going to require some deft legislative footwork. Some see the current plan as stealing a page from the Democrats on Obamacare.

Back in 2009, the Democrats had a 60-vote Senate supermajority, so they could plow through any Republican filibuster if they stayed united.

But after the Affordable Care Act passed in the Senate, Ted Kennedy died, And Massachusetts elected Republican Scott Brown to replace him. That meant that if the House altered the ACA in any way, a conference committee would be necessary, and the new bill would be killed by a united Republican caucus.

So the Senate bill went to the House and was passed without a single alteration. It was passed without a single congressional Republican supporting it.

Is there an Origination Clause problem with the Senate tax bill?

Some see that as the model that Republicans are using here. The Origination Clause of the Constitution requires all bills that raise revenue for the government to start in the House of Representatives. In the case of Obamacare, that didn’t happen. The Senate version of the Affordable Care Act was placed into a bill that came from the House, but it wasn’t about health care.

And while some see the same thing happening here, the reality is that “this bill originated in the House of Representatives,” said Utah Senator Mike Lee, in an interview with The Jack News. “It is not as though we are starting from scratch. The fact that there will be changes” to the House bill doesn’t mean that the bill did not “originate” in the House.

In Lee’s book, Our Lost Constitution: The Willful Subversion of America’s Founding Document, he cited the Affordable Care Act as an example of a problem the Constitution’s Origination Clause.

Leaving the House aside, herding recalcitrant senators won’t be easy

Irrespective of Constitutional niceties, the real problem is the Senate has to cobble together a strategy that will satisfy at least 50 of its 52 Republican members – in order of having something that the House can rubber stamp if it has any chance of reaching President Trump’s desk.

But corralling recalcitrant Republican senators is harder than herding cats. For his part, the president is behaving in an unusually collegial manner and has stated that he is open to changing the bill in order to win more votes.

That’s a stark contrast to his recent Twitter temper tantrum attacking Arizona Republican Sen. Jeff Flake for opposing the bill, even though Flake had not come out against the measure. Now Trump is uncharacteristically refraining from beating up on his potential allies.

(President Donald Trump speaks to the media during a meeting with congressional leadership in the Roosevelt Room at the White House on November 28, 2017. Trump left two empty chairs for Democratic leaders Sen. Charles Schumer, D-New York, and Rep. Nancy Pelosi, D-California, who decided to skip the meeting after Trump attacked them on Twitter. Senate Majority Leader Mitch McConnell, R-Kentucky, and Speaker of the House Paul Ryan, R-Wisconsin, watch on. Photo by Kevin Dietsch-Pool/Getty Images.)


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