House Ways and Means Committee chairman Dave Camp, R-Mich., contended that the immigration reform bill approved by the Senate last month violates the Constitution because it contains revenue provisions that are supposed to originate in the House.
“The Senate bill is unconstitutional, as it includes a number of revenue-related measures such as fees, penalties, surcharges and the non-payment of taxes,” Camp said in a statement Thursday. “As such, any consideration of the Senate bill in the House would also be unconstitutional. The House will have to consider its own legislation.”
Camp pointed out that Article I, Section 7, of the U.S. Constitution, known as the Origination Clause, requires that all “revenue” (tax) measures must start in the House of Representatives. This means the Senate may not “originate” any legislation that includes a provision that either raises or reduces federal revenue.
Many other laws that contained revenue provisions have originated in the Senate over the years. The House has traditionally been able to work around the problem by essentially copying and pasting the legislation passed by the Senate into a House bill that starts with H.R.
Camp, however, pointed to a number of problematic provisions in the Senate immigration bill.
Section 6 Comprehensive Immigration Reform Funds: The provision creates a "Comprehensive Immigration Reform Trust Fund" which is funded from both transfers from the general fund, as well as 18 different fees and penalties. Funds collected from fines, fees, and penalties shall be deposited into the general fund. By simply raising revenue for general fund purposes, the Senate has violated the Origination Clause, Camp argued.
Section 2211 Requirements for Blue Card Status and Section 2309 V Nonimmigrant Visas: Both provisions would prevent noncitizens as defined in these sections from receiving premium tax credits under 36B of the Internal Revenue Code (IRC) (of note, this section pertains to premium tax credits included in the Affordable Care Act). Because the provisions included in the Senate passed bill result in a revenue effect, the Senate has violated the Origination Clause, according to Camp.
Section 2232 Establishment of Nonimmigrant Agricultural Worker Program: Under this provision, employers of nonimmigrant alien workers in agriculture are not required to pay or withhold from such workers taxes under Sec. 3103 and 3301 of the IRC – FICA and FUTA taxes. This would reduce federal revenues otherwise collected, and thus is a revenue measure for purposes of the Origination Clause, Camp contended.
Section 4104 STEM Education and Training: The provision requires employers to pay a fee of $1,000 into the STEM Education and Training Account. Those funds are then redistributed to States, the District of Columbia, U.S. territories and qualifying institutions for a variety of purposes, including STEM education, workforce investment activities and administrative expenses. This new “fee” makes no attempt to relate the proceeds to the governmental activity availed of or occasioned by the payor (in this case the employer) and is viewed as a tax.
Section 5105 Visa Surcharge: In addition to any fees otherwise imposed for such visas, the provision states that the Secretary of Labor shall collect a surcharge of $10 from an employer who submits an application for an employment-based visa and nonimmigrant visa. The collection of this surcharge shall be suspended when the Secretary has collected a cumulative total of $1,500,000,000. All revenue generated through this provision goes into the general fund (used to finance the government generally). By simply raising revenue for general fund purposes, the Senate has violated the Origination Clause, Camp’s office contended.
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