Anything else simply permits a Congress acting in bad-faith to evade precisely those provisions of the Constitution that were intended to protect the American people from the acts of a bad-faith Congress.
I read Ms. McCuagh's article, and you can tell from reading it that's she's a Constitutional historian, and not an attorney. Why is that a significant distinction? Because historians tell you how things were, competent attorneys will tell you how things are. Whatever the founders intent happened to be in 1776, 235+ of case law has established a slightly different reality. The long and short of it is, so long as the revenue is being raised to cover costs of a government program, the bill won't violate the origination clause. A case from over a 100-years ago was the first to deal with this question. It's called Twin Cities Bank vs. Nebecker. In that decision, the Supreme Court held (when speaking about the origination clause with respect to revenue bills)...
"revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue"
In later cases, that was expanded, or refined to mean (as was stated in US. vs. Munoz-Florez)...
"The Court has interpreted this general rule to mean that a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support government generally, is not a "Bil[l] for raising Revenue" within the meaning of the Origination Clause.
If nothing else, it's is clear that Obamacare is creating an entirely new, and robust entitlement program, as such, any challenges to it's constitutionality, based on the origination clause and it's demand that revenue bills originate in the House, are unlikely to prevail.
Lastly, I think it's important to understand that not all constitutional infirmities can be solved by the Court, because they can't and perhaps they shouldn't be. Somethings, because of long-established principles of American jurisprudence, and deference to the Separation of Powers, the Court rightfully leaves alone for the public to solve at the ballot box.
I agree. But I'm guessing the jurisprudence on the orignation clause developed in cases where, although the revenue provisions did not *originate* with the House, strictly [technically] speaking, the House did eventually vote on (ratify, so to speak) those provisions by voting directly on the bill. IOW, the argument can be made that the substantive function of the origination clause was still served.
The argument can be made that using a deem-n-pass procedure does not require the same level of participation by the House, nor provide the same level of accountability, as to revenue provisions. Therefore the argument can be made that the deem-n-pass process cuts out BOTH the technical and substantive function of the origination clause.
It may be a rather thin reed, but voting on a bill that includes revenue provisions, regardless of origin, is distinguishable from deeming the bill is law. This case itself demonstrates that there is, at least according to the Dems, less personal political accountability for the Representative when a bill is deemed passed.
So the origination issue, in my view, is not pertinent so-much as a stand-alone issue, but because it is another way to demonstrate the fundamental problem here: that our Representatives are using a procedure SOLELY to avoid political accountability -- and, oh BTW, to avoid political accountability on provisions that, incidentally or not, levy significant taxes and raise significant revenue.
Of course, there's no telling how the SCOTUS would approach the case or if they'd even take a challenge. You wrote:
Somethings, because of long-established principles of American jurisprudence, and deference to the Separation of Powers, the Court rightfully leaves alone for the public to solve at the ballot box.
I agree. Separation of powers is part of the genius of our system and must be preserved and respected. That said, I'm not convinced this is a question, depending on how it's presented, that the Court must refuse on constitutional or jurisprudential grounds. The Supreme Court had to put the brakes on FDR, too.
I also continue to find it constitutionally damning that the SOLE rationale the Rats have given for using this procedure is explicitly to avoid personal political accountability of elected Representatives. They are openly admitting that they cannot pass the Senate bill because "no one wants to vote on it." So they are admitting that they are passing something by deem-n-pass that cannot otherwise be passed.
In short, deem-n-pass is not being used as a shortcut to get to a legislative goal the House otherwise could reach. As to the revenue provisions, the author stated: And if Pelosi has her way, these taxes will be "deemed" enacted without any House vote at all.
So in some ways the real question here is: is the distinction between "voting" on a bill and "deeming" a bill law only a political distinction, or is it also a legal distinction?
If deeming a bill law is legally (constitutionally) distinguishable from voting a bill into law, can the House avoid both originating revenue provisions (based on caselaw that it's okay if the Senate originates incidental revenue provisions) and "ratifying" those revenue provisions with a direct vote (by using deem-n-pass)? Wouldn't this wipe out any vestige of the protection this clause was meant to confer to the people?