In this podcast, Brooklyn Law School Associate Professor of Law Rebecca Kysar discusses her latest article The ‘Shell Bill’ Game: Congressional Avoidance and the Origination Clause, scheduled for publication in Volume 91 of the Washington University Law Review in 2014. The article discusses the use of “shell bills” to enact important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012. The practice is in tension with the Origination Clause of the Constitution which requires that bills raising revenue begin in the House of Representatives. While the Clause allows the Senate to amend such bills, the Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill), and replacing it entirely with its own unrelated revenue proposal. Professor Kysar discusses a new legal challenge against the Affordable Care Act in the United States District Court for the District of Columbia, Sissel v. United States Department of Health and Human Services, based on the bill’s true origins in the Senate.
Professor Kysar’s article proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause—a “congressional avoidance” doctrine, whereby the Court deflects searching review of the legislative process. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal procedure, this congressional avoidance doctrine both anticipates and prescribes an expansive interpretation of the Senate’s amendment power.
