UNITED STATES OF AMERICA, PETITIONER V. GERMAN MUNOZ-FLORES No. 88-1932 In the Supreme Court of the United States October Term, 1989 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the United States 1. a. In our opening brief, we set forth various reasons why an Origination Clause challenge presents a nonjusticiable political question. The most persuasive reason for that conclusion is "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government." Baker v. Carr, 369 U.S. 186, 217 (1962). The House enjoys absolute power to enforce its role in originating revenue legislation, and it has repeatedly used that power over the last two centuries. See Gov't Br. 10-11 & n.9. Respondent contends that congressional practices with respect to the Origination Clause should be discounted because "Congress has relied on judicial interpretations in deciding whether a bill violates the Origination Clause." Resp. Br. 2; see also id. at 7-8, 10, 11-12. The congressional references to this Court's opinions, however, scarcely constitute an acknowledgement by the House that the judiciary is principally responsible for enforcing the Origination Clause. On the contrary, in considering Origination Clause issues, Congress has consistently taken the view that it is the House of Representatives that bears the responsibility for enforcing its Origination Clause prerogatives. /1/ Respondent's suggestion that congressional practices are premised on a system of judicial enforcement is especially curious in view of the fact that this Court's decisions themselves rely on congressional practice for their Origination Clause analysis. In the first opinion discussing the Origination Clause, the Court emphasized that "(t)he construction of this limitation is practically well settled by the uniform action of Congress." United States v. Norton, 91 U.S. 566, 569 (1875). In subsequent cases, this Court has relied on the fact that, as Justice Story noted, the "practical construction" of the Clause "has been confined to bills to levy taxes in the strict sense of the word, and has not been understood to extend to bills for other purposes, which may incidentally create revenue." 2 J. Story, Commentaries on the Constitution of the United States Section 880, at 611 (2d ed. 1851), quoted in Millard v. Roberts, 202 U.S. 429, 436 (1906), and Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897). Thus, respondent has it exactly backwards; rather than Congress shaping its practices with an eye to judicial review, this Court in its handful of Origination Clause decisions has construed the Clause consistently with congressional practice. b. Respondent's suggestion (Br. 13-15) that the Origination Clause embodies constitutional values to be enforced by the judiciary is similarly unpersuasive. As in all cases in which an Origination Clause issue arises, the legislation in this case did not provoke an objection from the House of Representatives on the ground that its prerogatives under the Origination Clause were ignored. Nonetheless, respondent argues that the rule of sequence must be judicially enforced because it is a "rule of accountability for revenue legislation" and "provides direct protection to individual citizens by insuring that the representatives most directly responsive to the people take the responsibility of taking money from the people through taxation." Resp. Br. 3. The "accountability" that respondent seeks, however, is judicial enforcement of the House's role in originating revenue legislation in cases in which the House has not seen fit to utilize its own enforcement mechanisms. Since Origination Clause issues involve what respondent himself terms a question of the "balance of the power between the House and Senate" (ibid.), there is no reason for courts to referee that internal congressional matter in the name of "accountability." /2/ To recognize judicial authority to enforce the Origination Clause is to authorize courts to trump the House's judgment that the Clause is inapplicable or that there is no reason to invoke it. Such a conclusion will require the House not only to continue its well-established enforcement procedures, but also to adopt potentially burdensome new procedural requirements for any legislation that might be found to be within the scope of the Clause. Under respondent's approach, it would be insufficient that the House was the first chamber to pass the provision that was enacted into law. After the Senate combined two House-passed pieces of legislation, the House would then have had to pass identical legislation under a new bill number and send that combined version back to the Senate for its further consideration. Congressional failure to engage in those formalities would mean, under respondent's regime, that the legislation would be subject to complete invalidation, and at minimum could become the subject of extended litigation. These burdens, and the concomitant disregard of the House's own judgment about the applicability of and the need to invoke the Origination Clause, might be justified if the Origination Clause served some important interest independent of regulating the relative powers of the House and Senate, but it does not. The only consequence of permitting adjudication of this issue would be to provide a ground for persons such as respondent to avoid paying a fee that the House, the Senate, and the President have all agreed they should be required to pay. Contrary to respondent's contention, the interests of individual citizens under the Origination Clause are highly attenuated. Those asserted interests rest on the House's institutional characteristics (and its purportedly more democratic character). According to respondent, a citizen has more "protection," presumably from irresponsible or unrepresentative taxation, if the more democratic body must originate revenue measures. Unlike the situation in a case like INS v. Chadha, 462 U.S. 919 (1983), however, a statute challenged under the Origination Clause has been passed with the full participation of both Houses and presentment to the President. The individual citizen is thus left to base his claim on a matter of sequence before final passage and enactment. The insubstantial nature of this asserted interest can best be seen in the clearest example of an Origination Clause violation: the Senate passes a tax measure, the House (contrary to its usual practice of guarding its origination responsibilities) then passes the measure, and the President signs it into law. As respondent recognizes (Br. 28), the House could cure the origination problem simply by passing the identical measure under a new bill number and sending it back to the Senate for repassage and presentment to the President. The difference between those two actions by the House is the entirety of the injury claimed by respondent. Surely the difference between the House passing specific language in a Senate-provided vehicle and the House passing the identical language under a new bill number inflicts no substantive injury on individual citizens. The asserted "protection" afforded by the Origination Clause to individual citizens therefore provides a very weak foundation for overriding the House's own determinations about its origination responsibilities. /3/ 2. Even if Origination Clause challenges are justiciable, respondent's challenge to the constitutionality of the special assessment provision must nevertheless fail for three reasons: (1) the provision is not a "Bill() for raising Revenue"; (2) the provision "originated" in the House; and (3) the Senate's action should not be found to be an impermissible amendment. Any one of these reasons is sufficient to sustain the statute. a. As respondent recognizes (Br. 17), "Bills for raising Revenue" within the meaning of the Origination Clause are "those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." Nebeker, 167 U.S. at 202. The special assessment provision is not a "Bill() for raising Revenue," because its purpose is not to "levy taxes in the strict sense of the word"; to the contrary, its purposes are to assist victims of crime and to penalize violators of federal law. See Gov't Br. 16-22. Based on those purposes, five Circuits have now explicitly rejected the Ninth Circuit's conclusion that the special assessment provision is a bill for raising revenue. /4/ Respondent recognizes, as he must, that the special assessments are to be deposited in the Crime Victims Fund, but he maintains that the special assessment provision is a "Bill() for raising Revenue" because (1) the Fund should be considered a general expenditure of government; (2) the special assessment provision itself does not express a purpose; and (3) even if providing money for the Victims Fund is the primary purpose and the Fund is not a general expenditure of government, there is not a sufficient relationship between the people on whom the fee is imposed (persons convicted of federal offenses) and the people who benefit from the fund (victims of crime). Resp. Br. 18-23. None of these arguments is well founded. Respondent's first argument -- that the Fund should be considered a general expenditure of government -- rests principally on the view that "(a)ssistance to potentially large numbers of individuals who are victims of crime should be considered a general obligation and expenditure of government." Resp. Br. 20. That view is mistaken. The size of the beneficiary class has never been the touchstone for this Court's analysis of whether legislation is a "Bill() for raising Revenue." In Nebeker, for instance, this Court noted that the purpose of the legislation at issue was to benefit "the people" throughout the nation. /5/ The fact that the statute in question would benefit "potentially large numbers of individuals" did not prevent the Court from finding that it was not a "Bill() for raising Revenue." Moreover, as a matter of logic, there is no reason why the size of the beneficiary class should be related to the purpose-of-legislation test suggested both by the words of the Clause ("Bills for raising Revenue") and by this Court's decisions in Millard, Nebeker, and Norton. Respondent's suggestion that "(n)othing on the face of section 3013 reveals its underlying purpose" (Br. 19) ignores the fact that several provisions of the Victims of Crime Act of 1984 (of which the special assessment provision was one section) reveal with unmistakable clarity that assisting victims was the principal purpose of the Act. See, e.g., Pub. L. No. 98-473, Section 1402, 98 Stat. 2170 (establishing the "Crime Victims Fund"); Section 1403, 98 Stat. 2171 (criteria for "crime victim compensation"); Section 1404, 98 Stat. 2172 (criteria for "crime victim assistance"). To the extent that respondent suggests that the special assessment provision, which was part of the Victims of Crime Act (Section 1405, 98 Stat. 2174) and integrally related to the other provisions, should be viewed in isolation from the other provisions of the Act, his argument is contrary to the "fundamental" axiom that a "section of a statute should not be read in isolation from the context of the whole Act." Richards v. United States, 369 U.S. 1, 11 (1962). Respondent also suggests that the special assessment provision is a "Bill() for raising Revenue" because it does not directly benefit those who pay the assessment. Resp. Br. 20-23. Here, too, respondent's theory is unsupported by this Court's precedents. Contrary to respondent's contention, Nebeker does not support his proposed "relationship" test. In Nebeker, this Court emphasized that the nation as a whole benefited from the legislation at issue, and the fee was imposed only on banks. The language of the Origination Clause contains no suggestion that the relationship between the beneficiaries of legislation and the persons who pay a fee incident to that legislation bears on the question whether a particular bill is one "for raising Revenue." Finally, respondent maintains that the special assessment cannot be viewed as penal in nature. Resp. Br. 23-26. Respondent contends that the purpose of the special assessment provision is simply to impose a tax on convicted persons. The assessment, however, is imposed for commission of a crime; it varies according to whether the crime is a felony or a misdemeanor; it is imposed in the same manner as a sentence; a separate assessment is imposed for each count of conviction; and the assessment is referred to in the statute as a "penalty assessment." /6/ Under these circumstances, it is clear that Congress intended the special assessment to be exacted roughly according to the seriousness of the defendant's misconduct and to serve, at least in part, a penal purpose. b. In our opening brief, we explained that the special assessment provision should be regarded as having "originated" in the House of Representatives, because the House was the first chamber to pass the measure ultimately enacted into law. The House passed the special assessment provision on October 2, 1984, seven days after it passed H.R.J. Res. 648, 98th Cong., 2d Sess., the continuing appropriations resolution; then, on October 4, 1984, the Senate combined the House-passed special assessment provision with the House-passed H.R.J. Res. 648. After H.R.J. Res. 648 emerged from conference containing the special assessment provision, the House passed that conference version on October 10, the Senate passed it on October 11, and the President signed it on October 12. Gov't Br. 23-24; Pet. 9, 17-18. Respondent does not dispute this chronology. Resp. Br. 26-27. Instead, he argues for a rigid rule that the House of Representatives may be found to "originate" legislation for the purposes of the Origination Clause only if the House is the first chamber to place the provision in question in the particular bill that is ultimately enacted. By virtue of the chronology previously set forth (i.e., because the Senate took the language of the special assessment provision from an earlier House bill and inserted it into H.R.J. Res. 648, which was thereafter enacted into law), respondent contends that the special assessment statute must be regarded as having originated in the Senate, even though the bill from which the language was taken and the bill into which it was inserted both originated in the House. Resp. Br. 27-28. /7/ Respondent argues that this rule is necessary for two reasons -- ease of administration and preservation of existing House practices. Neither reason withstands scrutiny. This Court has never suggested that ease of judicial administration justifies a rigid approach to Origination Clause analysis. Recognizing the complexity and delicacy of judicial action in this field, the Court in Nebeker explicitly disavowed any attempt to formulate a definition of "Bills for raising Revenue" in order to simplify the process of judicial review. See Nebeker, 167 U.S. at 202 ("What bills belong to that class is a question of such magnitude and importance that it is the part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject."). Similar caution should inform the judicial approach to the question of origination. Rather than adopting respondent's so-called "bright line test" (Resp. Br. 27), the Court should recognize that a variety of House actions may satisfy the constitutional requirement of "origination." Ease of administration is hardly an adequate justification for refusing to recognize House origination when the House is the first chamber to propose and pass a piece of legislation, the Senate combines that legislation with another House-originated measure, and the Senate and House then pass the consolidated bill. Surely no value or principle informing the Origination Clause justifies ignoring the fact that the House was the first chamber to pass the provision that became law. To override the House's judgment that no Origination Clause problem was presented in a particular situation should require more than the administrative convenience provided by a rule that restricts a court to looking to the first time the final statutory language was included in the particular numbered bill ultimately enacted by both Houses. Respondent errs in asserting that our proposed test for determining origination would tie the House's hands. We do not suggest that "origination" may be found only in a sequence such as occurred in this case. Nor, contrary to respondent's contention (Br. 28), do we suggest that there is any Origination Clause flaw in the established practice by which the House refuses to consider revenue legislation initiated by the Senate but passes identical legislation and sends it to the Senate. Rather, we submit that House "origination" may be satisfied through a variety of methods, including that procedure and including a procedure such as the one in this case, where the House is the first body to pass a provision and the Senate incorporates the House proposal into a different, separately numbered bill. That approach to origination questions is consistent with the particular caution that must accompany judicial involvement in Origination Clause determinations, as well as the caution and restraint exercised by courts in considering challenges to the constitutionality of statutes. There is an irony about respondent's "bright line" test and his argument about why that test is needed. In the first half of his brief, he argues that the Origination Clause does not pose a problem of judicially manageable standards, and that (in part by virtue of that reason) the Court should find the Origination Clause challenges to be justiciable. In the second half of his brief, respondent proposes a "bright line" test that will make Origination Clause challenges more suitable for adjudication, even though it may not be responsive in many cases to the realities of the origination of legislative proposals. See Resp. Br. 27-28 ("Unless the Court follows this bright line test for determining the origination of a bill, there could be endless confusion over who thought of an idea first and who drafted the language."). The fact that respondent feels compelled to devise a new, mechanical test for origination that will exclude cases such as this one, in which the precise language ultimately enacted originated in the House, is strong support for the proposition that enforcing the Origination Clause is not a task for which courts are well suited. c. In our opening brief, we explained that this Court should not find the Senate's amendment impermissible, even if it is determined that the special assessment provision was a "Bill() for raising Revenue" and that it "originated" in the Senate, because such a conclusion would thrust this Court into the midst of the longstanding congressional dispute about whether appropriations bills are within the scope of the Origination Clause. Gov't Br. 26-29. /8/ Although respondent contends that "the resolution" of this debate "is not required" here (Resp. Br. 31), his argument continues to rest on the proposition that "none of the provisions of H.R.J. Res. 648" -- which of course included many appropriations provisions -- "were 'revenue raising.'" Resp. Br. 30. See also id. at 31 ("Nothing in H.R.J. Res. 648 as it originated in the House of Representatives was revenue raising within the meaning of Art. I, Section 7, cl. 1."). Thus, his protestations notwithstanding, respondent's challenge to the Senate's amendment requires a holding that H.R.J. Res. 648 was not a "Bill() for raising Revenue," and thus that appropriations bills are not such bills. /9/ This Court should not endorse either position in the longstanding battle between the House and Senate over the status of appropriations bills; instead, the Court should hold that, in view of that venerable controversy, a Senate amendment to a House bill that contains appropriations provisions will not be invalidated as an impermissible exercise of the Senate's amendment power under the Origination Clause. Respondent suggests that this position is itself an endorsement of the House position that appropriations bills are "Bills for raising Revenue." Resp. Br. 30-31. There is a fundamental difference, however, between the reasons for refusing to invalidate legislation as unconstitutional, which may rest on a variety of prudential concerns, and the reasons compelling a finding of unconstitutionality. A refusal to intrude into this congressional debate would be consistent with principles of judicial deference and restraint. /10/ A decision that the Senate amendment here was impermissible, in contrast, would inject this Court into an internal congressional battle, and would be inconsistent with those principles. For the foregoing reasons, and for the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. KENNETH W. STARR Solicitor General JANUARY 1990 /1/ See, e.g., 125 Cong. Rec. 31,517 (1979) (Rep. Dingell) ("The House has the responsibility to protect its constitutional prerogatives. Therefore, it is necessary to send the bill * * * back to the Senate."); 39 Cong. Rec. 2731 (1905) (Rep. Payne) ("Mr. Speaker, as the Members know, this is no new question in the House of Representatives, and the House has uniformly insisted on its right guaranteed to it by this clause of the Constitution of the United States * * * ."); 7 Cong. Rec. 4607 (1878) (Rep. Wood) ("(T)his House should assert its prerogatives against the aggressions of the Senate."); Cong. Globe, 41st Cong., 3d Sess. App. 268 (1871) (Rep. Garfield) (House's Origination Clause role "has been asserted again and again in the various Congresses from the First till now; and though the Senate has often attempted to invade this privilege, yet in no instance has the House surrendered its right whenever that right has been openly challenged * * * ."); 9 Cong. Deb. 721 (1833) ("Mr. WEBSTER said, the constitutional question must be regarded as important; but it was one which could not be settled by the Senate. It was purely a question of privilege, and the decision of it belonged alone to the House."); 1 Annals of Cong. 597 (J. Gales ed. 1789) (Rep. Livermore) ("The power of originating bills within these walls, I look upon as a sacred deposit(), which we may neither violate nor divest ourselves of * * * ."). Even the 1925 debate on which respondent relies (Br. 8-9 n.7) contains similar expressions of the necessity of House enforcement. See, e.g., 66 Cong. Rec. 2942 (1925) (Rep. Green) ("(T)he House of Representatives is the final judge and arbiter as to whether its privileges have been infringed upon. This principle was agreed to away back in Webster's time."); id. at 2947 (Rep. Tucker) (House has "the duty of resisting any tax to be put upon the people unless * * * (the House of Representatives) first initiates it."). /2/ Respondent argues that the Framers attached great importance to the Origination Clause. Resp. Br. 13-14. The views of the Framers, however, were varied (see Gov't Br. 13-14 n.12) and in any event the conclusion that a particular constitutional issue presents a nonjusticiable political question does not mean that the constitutional provision in question is unimportant. Baker v. Carr, 369 U.S. at 210-226. /3/ In our opening brief, we suggested that an independent reason for finding an Origination Clause challenge to be a political question is the difficulty of formulating judicially manageable standards. Gov't Br. 14-16. Respondent replies (Br. 9-11) that the standards for evaluating Origination Clause claims will be no more difficult to ascertain than for other constitutional issues, and to illustrate he points to decisions upholding the Tax Equity and Fiscal Responsibility Act of 1982 against Origination Clause challenges. In fact, although no court struck down that statute on Origination Clause grounds, the courts followed a variety of different paths to the same result. See Gov't Br. 15 n.14. This case itself demonstrates that even in fairly clear cases, as we believe this one to be, the courts can reach conflicting conclusions as to whether a particular bill satisfies the Origination Clause. /4/ In addition to the decisions from the Second, Third, Fifth, and Sixth Circuits cited in our opening brief (at 19 n.18), the Tenth Circuit has now also concluded that the special assessment is not a bill for raising revenue. United States v. King, No. 89-3037 (Dec. 12, 1989); see also United States v. Newman, 889 F.2d 88 (6th Cir. 1989) (victims assistance purpose). /5/ See Nebeker, 167 U.S. at 203 ("The tax was a means for effectually accomplishing the great object of giving to the people a currency that would rest, primarily, upon the honor of the United States, and be available in every part of the country."). /6/ Although respondent maintains that "(t)he statute does not refer to penalty assessments" (Br. 3, 26), the Victims of Crime Act of 1984 uses precisely that language at two points. See Pub. L. No. 98-473, Section 1402(b)(2), 98 Stat. 2171 (referring to the "penalty assessments collected under section 3013 of title 18 of the United States Code"); Section 1405, 98 Stat. 2174 (title of special assessment section is "PENALTY ASSESSMENT"). /7/ Respondent has abandoned the analysis of the court of appeals, which suggested (Pet. App. 13a-14a) that the special assessment provision that was enacted into law originated in the Senate because it derived from a Senate bill, S. 2423, 98th Cong., 2d Sess., which passed the Senate in August 1984. Respondent nevertheless maintains that "Senator Heinz introduced the original special assessment provision on March 8, 1983" in S. 704, 98th Cong., 1st Sess. Resp. Br. 28 n.27. In fact, however, S. 704 was very different in content and structure from the provision ultimately enacted; H.R. 3498, 98th Cong., 1st Sess., in contrast, which was introduced by Congressman Rodino in 1983, is extremely close to the ultimately enacted version of the special assessment. See Gov't Br. 25 n.25. /8/ Respondent's suggestion (Resp. Br. 29 n.29) that the amendment issue has not been properly raised and preserved is incorrect. The issue was explicitly addressed both by the court of appeals (Pet. App. 14a) and the district court (Pet. App. 22a n.3), and it is encompassed in the question presented in our petition. /9/ To the extent respondent suggests that only a "portion" of the amended statute need be examined (Br. 29-30), the suggestion conflicts with this Court's analysis of the Senate's amendment powers. See Rainey v. United States, 232 U.S. 310, 317 (1914) ("'It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient.'"). /10/ Cf. Matthews v. Diaz, 426 U.S. 67, 81-82 (1976) ("The reasons that preclude judicial review of political questions also dictate a narrow standard of review * * * in the area of immigration and naturalization.") (footnote omitted).