UNITED STATES OF AMERICA, PETITIONER V. GERMAN MUNOZ-FLORES No. 88-1932 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 863 F.2d 654. The opinion of the district court (App., infra, 16a-25a) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 12, 1988. A petition for rehearing was denied on March 29, 1989. App., infra, 29a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Origination Clause of the United States Constitution, Art, I, Section 7, Cl. 1, states: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Section 3013 of Title 18, U.S. Code (Supp. IV 1986), as it was enacted by the Victims of Crime Act of 1984, Pub. L. No. 98-473, Tit. II, ch. XIV, Section 1405(a), 98 Stat. 2174-2175, provided: Section 3013. Special assessment on convicted persons (a) The court shall assess on any person convicted of an offense against the United States -- (1) in the case of a misdemeanor -- (A) the amount of $25 if the defendant is an individual; and (B) the amount of $100 if the defendant is a person other than an individual; and (2) in the case of a felony -- (A) the amount of $50 if the defendant is an individual; and (B) the amount of $200 if the defendant is a person other than an individual. (b) Such amount so assessed shall be collected in the manner that fines are collected in criminal cases. QUESTION PRESENTED Whether 18 U.S.C. 3013, which directs sentencing courts to impose monetary assessments on all defendants convicted of federal offenses, was enacted in violation of the Origination Clause of the Constitution, Art. I, Section 7, Cl. 1. STATEMENT 1. In June 1985, respondent and several other persons were indicted in the Southern District of California for aiding the illegal entry of aliens. Prior to trial, respondent entered into a plea agreement with the government. Pursuant to the agreement, respondent pleaded guilty to a superseding information charging him with two misdemeanor counts of aiding and abetting aliens to elude examination and inspection by government officials, in violation of 8 U.S.C. 1325. App., infra, 16a, 31a-32a. In accord with the government's recommendation, the magistrate to whom the case was assigned suspended the imposition of any prison sentence and placed respondent on two years' probation on each count. The magistrate also directed respondent to pay a $25 special assessment on each count under 18 U.S.C. 3013(a) (Supp. IV 1986). That provision, which was enacted by the Victims of Crime Act of 1984, Pub. L. No. 98-473, Tit. II, Section 1405(a), 98 Stat. 2174-2175, stated: "The court shall assess on any person convicted of an offense against the United States -- (1) in the case of a misdemeanor -- (A) the amount of $25 if the defendant is an individual * * *." /1/ The judgment embodying the conviction and sentence, including the suspension of prison sentence, probation, and the total of $50 in assessments, was entered on September 30, 1985. App., infra, 16a-17a, 27a-28a. On October 15, 1985, respondent filed a motion under Rule 35, Fed. R. Crim. P. (1985), /2/ asking the magistrate to correct the allegedly illegal sentence. Respondent's principal argument was that Section 3013 as enacted was unconstitutional under the Origination Clause of the United States Constitution, Art. I, Section 7, Cl. 1, because, he contended, it was a "revenue raising statute that unconstitutionally originated in the United States Senate." App., infra, 17a. The magistrate rejected the argument and denied the Rule 35 motion. C.A. Excerpt of Record 36-39 (transcript of oral ruling). On appeal pursuant to 18 U.S.C. 3402, the United States District Court for the Southern District of California affirmed. App., infra, 16a-25a. /3/ The court observed that it is "well established that the origination clause does not invalidate statutes that are primarily regulatory or penal, but which raise revenue incidentally." Id. at 18a. The court concluded that Section 3013 as enacted in 1984 was primarily penal, relying on congressional descriptions of the assessments as penal and on the analysis in United States v. Mayberry, 774 F.2d 1018 (1985), in which the Tenth Circuit held that Section 3013 was penal for purposes of the Assimilative Crimes Act, 18 U.S.C. 13. App., infra, 18a-22a. /4/ 2. The court of appeals held Section 3013 as enacted invalid under the Origination Clause and therefore vacated the sentence insofar as it imposed the two $25 assessments. App., infra, 1a-15a. The court explained that the Origination Clause establishes a straightforward three-part test for validity: whether "the statute falls within the class of revenue raising bills covered by the clause"; if so, whether "the bill (i.e., the statute) originated in the House"; and if not, whether the Senate's participation in the legislative process can be construed as an amendment permissible under the clause." App., infra, 6a & n.4. The court concluded that Section 3013 as enacted failed that test. /5/ a. On the first question, the court stated that this Court's decisions in Millard v. Roberts, 202 U.S. 429, 436 (1906), Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897), and United States v. Norton, 91 U.S. (1 Otto) 566, 569 (1875), established that the Origination Clause "do(es) not extend to bills that incidentally create revenue if those bills were enacted for purposes other than revenue raising." App., infra, 6a. Section 3013, the court concluded, was enacted for the purpose of raising revenue. As an initial matter, the court noted that the statutory language did not sufficiently establish another purpose. The court explained that Section 3013(b), which states that assessments "shall be collected in the manner that fines are collected in criminal cases," might suggest that the assessment is analogous to a fine and therefore punitive, but the court declined to draw that inference. It reasoned that subsection (b) "may be interpreted as a purely procedural requirement" and that the absence in Section 3013 of a restriction on the use of the collected funds "suggests that the revenue raising aspect of the bill is not subsidiary to any enunciated functions." App., infra, 7a-8a. Turning to the legislative history of Section 3013, the court pointed out (App., infra, 8a) that the provision was designed in part to help defray the cost of the newly established Crime Victims Fund, which would provide funds to assist victims of crime (42 U.S.C. 10601 et seq.). See S. Rep. No. 497, 98th Cong., 2d Sess. 13-14 (1984). The court acknowledged, based on Millard v. Roberts, 202 U.S. at 436-437 (rejecting Origination Clause challenge to tax on District of Columbia property enacted to provide funding to railway company), that the provision might well have been constitutional "(h)ad the proceeds been clearly confined to this purpose." App., infra, 8a. The court concluded, however, that Section 3013's main purpose was not to fund victims' assistance programs, because "Congress contemplated that the revenue might be used as general federal revenue." App., infra, 9a. The court relied for that conclusion (id. at 8a, 9a) chiefly on the Senate Judiciary Committee's statement -- in the Senate Report that accompanied a bill, S. 2423, 98th Cong., 2d Sess. (1984), that was similar but not identical to the ultimately enacted Section 3013 -- that the assessments "will constitute new income for the Federal government." S. Rep. No. 497, supra, at 14. /6/ The court next rejected (App., infra, 10a) the suggestion that the penal character of the assessments was shown by the fact that the Senate Committee and S. 2423 both used the term "penalty assessment." See S. Rep. No. 497, supra, at 5, 13; 130 Cong. Rec. 23,803-23,804 (1984) (reproducing S. 2423 as passed by the Senate). The label "penalty" is irrelevant, the court said, and "penalty assessment" does not appear in the codified version of the statute, since Congress changed the language to "special assessment" in the enacted bill. That Section 3013 exacts money only from convicted persons, the court continued, does not mean that the exaction is not a tax, for Congress is free to tax the class of convicted persons. App., infra, 10a-11a. In addition, the court explained that there was no persuasive judicial precedent holding Section 3013 punitive for purposes of the Origination Clause. /7/ Accordingly, the court concluded (App., infra, 12a) that "the primary purpose of the special assessment was to raise revenue, not to finance state victim assistance programs or to punish offenders." b. The court next concluded that the legislative history "clearly indicates that section 3013 originated in the Senate." App., infra, 12a. Although Section 3013 was enacted into law by Section 1405(a) of a House bill, H.R.J. Res. 648, 98th Cong., 2d Sess. (1984), the court examined the legislative history to determine from which house the particular assessment provision came. The court found that Section 3013 originated in a Senate bill, S. 2423, 98th Cong., 2d Sess. (1984). The court explained that, on May 1, 1984, in hearings on S. 2423, Senator Heinz proposed to include in that bill a provision allowing for the collection of "penalty assessments" (The Victims of Crime Assistance Act of 1984: Hearing on S. 2423 Before the Senate Comm. on the Judiciary, 98th Cong., 2d Sess. 21 (1984)), and such a provision was included in the bill reported by the Senate Judiciary Committee on May 10, 1984 (S. Rep. No. 497, supra, at 4, 13) and passed by the Senate on August 10, 1984 (130 Cong. Rec. 23,803-23,805). That bill was never passed by the House. According to the court of appeals, the next relevant step in the legislative process occurred on October 4, 1984, when the Senate had before it the version of the 1985 continuing appropriations bill, H.R.J. Res. 648, that the House had passed on September 25, 1984 (130 Cong. Rec. H10,131 (daily ed.)) -- a bill that did not then contain any assessment provision (see id. at H11,970 (daily ed. Oct. 10, 1984) (joint explanatory statement of conference committee)). On October 4, according to the court of appeals (App., infra, 13a), the Senate "added the text of the Victims of Crime Assistance Act of 1984, including the special assessment provision, to (H.R.J. Res. 648)." 130 Cong. Rec. S13,520, S13,544 (daily ed.). After that amendment, the Senate passed H.R.J. Res. 648 the same day (id. at S13,384), and the provision remained in the conference committee's bill (130 Cong. Rec. H11,913 (daily ed. Oct. 10, 1984)), which was approved by both houses (130 Cong. Rec. H12,107, S14,226 (daily ed. Oct. 10, 11, 1984)) and became law on October 12, 1984 (Pub. L. No. 98-473, 98 Stat. 1837). The court of appeals summarized its reading of the legislative history: "(t)he special assessment provision was introduced in the Senate Judiciary Committee, it was first passed by the Senate and was only adopted by the House on later repassage of H.J. Res. 648." App., infra, 13a-14a. Based on that reading, the court concluded that "the Senate clearly initiated the special assessment legislation." App., infra, 13a. c. Finally, the court ruled that Section 3013 was not valid under the proviso to the Origination Clause, which states that "the Senate may propose or concur with Amendments as on other Bills." The court observed that the Senate may attach an amendment to raise revenue to a House bill only if the House bill itself is a revenue-raising measure within the meaning of the Clause. Here, the court concluded, the House-passed version of H.R.J. Res. 648 that the Senate amended on October 4, 1984, was not a bill for raising revenue and so was not validly amended by the revenue-raising Senate amendment. App., infra, 14a. REASONS FOR GRANTING THE PETITION The court of appeals has held an Act of Congress unconstitutional, and its decision will affect thousands of cases every year. In addition, the court's ruling directly conflicts with several district court decisions, it rests on an interpretation of Section 3013 that conflicts with the views of other courts of appeals, and it is contrary to this Court's Origination Clause decisions. The court of appeals erred both in ruling that Section 3013 was enacted in a "Bill() for raising Revenue" and in ruling that Section 3013 originated in the Senate. 1. The decision of the court of appeals would invalidate sentences in thousands of cases each year in the Ninth Circuit alone and in tens of thousands more each year if followed in other circuits. By its terms Section 3013 applies to every defendant convicted of a federal crime. /8/ Although the court invalidated the original 1984 version of Section 3013, the 1988 amendment, which revised one part of Section 3013(a), only marginally diminishes the reach of the decision. /9/ With respect to felonies, which are subject to Section 3013(a)(2), the 1984 version has not been amended. The Ninth Circuit ruling would therefore invalidate assessments in all felony convictions since the 1984 enactment took effect and indefinitely into the future. The Executive Office of the United States Attorneys has informed us, based on statistics collected from the United States Attorneys' offices, that in the year ending September 30, 1988, more than 27,000 assessments were imposed on felony counts nationwide, and more than 3,700 were imposed in the Ninth Circuit. With respect to misdemeanors and other lesser offenses, which are subject to Section 3013(a)(1), the 1984 law struck down by the court of appeals applied to all criminal convictions until subsection (a)(1) was amended in December 1988. According to the Executive Office, more than 13,000 assessments were imposed on misdemeanor counts annually prior to the amendment, and more than 3,000 in the Ninth Circuit. The decision of the court of appeals holding Section 3013 invalid has already begun to generate conflicts among the lower courts. Several district court decisions have upheld the statute against such challenges. See, e.g., United States v. Clark, No. 88 Cr. 0793 (RWS) (S.D.N.Y. Mar. 22, 1989), appeal pending (2d Cir.); United States v. McDonough, Cr. No. 4-88-137(1) (D. Minn. Feb. 23, 1989), appeal pending (8th Cir.); United States v. Hines, 88 Cr. 739 (MBM) (S.D.N.Y. Feb. 23, 1989), appeal pending (2d Cir.); United States v. Ramos, 624 F. Supp. 970, 973 (S.D.N.Y. 1985). Other district courts have followed the court of appeals' decision in this case. See, e.g., United States v. Thompson, CR88-479A (N.D. Ga. Mar. 20, 1989), appeal pending (11th Cir.); United States v. Culbreath, No. 88-00186 (M.D. Tenn. Feb. 27, 1989), appeal pending (6th Cir.); United States v. Hamilton, Cr. No. 88-136 (W.D. Pa. Feb. 15, 1989), appeal pending (3d Cir.); United States v. Simpson, Cr. No. 88-91 (W.D. Pa. Feb. 15, 1989), appeal pending (3d Cir.); United States v. Williams, Cr. No. 88-96 (W.D. Pa. Feb. 8, 1989), appeal pending (3d Cir.); United States v. Solomonson, Cr. No. 3-88-73 (D. Minn. Feb. 6, 1989), appeal pending (8th Cir.). No other court of appeals has yet rejected an Origination Clause challenge to Section 3013, but appeals are now pending in all of the cited recent district court decisions, and the issue is currently being litigated in numerous cases through the nation. In addition, as the court of appeals in the present case acknowledged (App., infra, 11a-12a), the decision below rests on interpretations of Section 3013 that are, at a minimum, in tension with the interpretations adopted by several other courts of appeals in cases not involving the Origination Clause. Two circuits have concluded that Section 3013 was designed to provide funds for the crime victims' assistance programs, United States v. Donaldson, 797 F.2d 125, 127 (3d Cir. 1986); United States v. Dobbins, 807 F.2d 130 (8th Cir. 1986), whereas the court in the present case concluded that the provision's primary purpose was not to finance such programs (App., infra, 8a-9a, 12a). And three circuits have concluded that the assessments under Section 3013 as enacted were punitive, United States v. Davis, 845 F.2d 94, 97 n.2 (5th Cir. 1988); United States v. King, 824 F.2d 313, 317 (4th Cir. 1987); United States v. Mayberry, supra (10th Cir.), whereas the court in the present case concluded that the provision's primary purpose was not to punish offenders (App., infra, 10a-12a). 2. a. The court of appeals mistakenly concluded that Section 3013 as enacted was a "Bill() for raising Revenue" within the meaning of the Origination Clause. This Court has given the Clause a narrow interpretation. /10/ The court of appeals' decision is inconsistent with this Court's decisions establishing that the Clause does not apply to legislation that imposes an exaction for a purpose other than the raising of general revenue. This Court has three times ruled, following Justice Story's analysis of the Origination Clause, that "the practical construction of the Constitution and the history of the origin of the constitutional provision in question proves that 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." Twin City Bank v. Nebeker, 167 U.S. at 202-203. Accord Millard v. Roberts, 202 U.S. at 436-437; United States v. Norton, 91 U.S. (1 Otto) at 569. /11/ Under that principle, even an assessment labeled a "tax" by Congress is not necessarily within the strict meaning of the Clause. Thus, in Nebeker, the Court rejected an Origination Clause challenge to a provision in a law that established a national currency secured by a pledge of bonds of the United States and that imposed what the statute labeled a tax on notes in circulation. The Court held that the provision was not a revenue-raising measure within the strict sense of the Clause because the tax was designed "to meet the expenses attending the execution of the act" and to accomplish the goal of establishing the currency, rather than "to raise revenue to be applied in meeting the expenses or obligations of the Government." 167 U.S. at 202-203. Similarly, in Millard, the Court rejected an Origination Clause challenge to a law levying a tax on property within the District of Columbia in order to raise money for certain railroad construction activity. The Court explained that the measure was not within the Clause because "(w)hatever taxes are imposed are but means to the purposes provided by the act." 202 U.S. at 437. See also South Carolina v. Block, 717 F.2d 874, 887 (4th Cir. 1983) (50-cent deduction imposed on proceeds of milk sales to defray cost of price-support program and to reduce overproduction not within Origination Clause). Section 3013 was not enacted in violation of the Origination Clause because it was not designed to raise general revenue for the support of the government. Rather, the provision was enacted as one part of an integrated program to provide assistance to victims of crime. Victims of Crime Act of 1984, Pub. L. No. 98-473, Sections 1401-1405, 98 Stat. 2170-2175. That Act established a Crime Victims Fund and various grant programs to provide such assistance (42 U.S.C. 10601, 10602, 10603 (Supp. II 1984)), and it directed that the special assessments collected under the authority of Section 3013 (along with certain fines and forfeitures) are to be deposited into the Fund (42 U.S.C. 10601(b)(2) (Supp. II 1984)). A measure like Section 3013 that imposes an assessment to support a particular governmental program is not a bill for raising revenue -- especially if the program itself is a remedial one designed to address problems caused by the conduct of the class of persons on whom the assessment is imposed. The court of appeals, while appearing to recognize the Millard-Nebeker principle, rejected its application here simply because, in its view, Section 3013 assessments would be available as general revenue. App., infra, 8a-9a. There is no adequate basis for that view or the inference the court drew from it. The Senate Committee statement that the assessments "will constitute new income for the Federal government" (S. Rep. No. 497, supra, at 14), on which the court placed principal reliance, does not support the court's conclusion. That simple observation would be equally true for any bill that brought in money to fund a particular governmental program, such as the railroad construction program in Millard or the currency program in Nebeker; the statement does not mean or imply that assessments would be available for general governmental expenditures. Moreover, the court wholly ignored Congress' command, in the same statute that contained the assessment provision, that assessments are not to be placed in the general fund of the Treasury but are to be deposited in the separate Crime Victim's Fund. 42 U.S.C. 10601 (Supp. II 1984). In fact, moneys from that Fund were to be transferred to the general Treasury only if the Fund reached $100 million (42 U.S.C. 10601(c)(1) (Supp. II 1984)), and that figure has never been reached by the Fund. See U.S. Dep't of Justice, Office for Victims of Crime, Office of Justice Programs, Victims of Crime Act of 1984: A Report to Congress By the Attorney General 11 (1988). /12/ In any event, even if excess amounts are eventually transferred, the character of the assessment provision would not change; and nothing in Millard or Nebeker or the statutes involved there indicates that money raised under the programs at issue would under no circumstances be used as general revenue. Hence, the assessment provision is properly viewed as outside the reach of the Origination Clause because it was designed to finance victim assistance programs rather than to raise general revenue. In addition, under an appropriately narrow reading of the Origination Clause -- and under the principle that "(a) statute * * * is to be construed, if such a construction is fairly possible, to avoid raising doubts of its constitutionality," St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981) -- Section 3013 as enacted should have been upheld because, like fines and forfeitures, the assessments should be characterized as penal. There are several bases for such a characterization. Assessments are imposed only on convicted criminals, and they are imposed as part of the sentence. Section 3013(b) directs that assessments are to "be collected in the same manner that fines are collected in criminal cases." The provision directing that assessments be deposited in the Crime Victims' Fund refers to them as "penalty assessments." 42 U.S.C. 10601(b)(2) (Supp. II 1984). And the statute that added Section 3013 to the Criminal Code did so in a provision, Section 1405(a), that was labeled "penalty assessment." 98 Stat. 2174. /13/ Under those circumstances, a court seeking to avoid rather than invite a constitutional question would have construed the provision to be a penal measure and not to be a strict measure for raising revenue subject to the Origination Clause. b. Even if the court of appeals were correct that Section 3013 as enacted came within the scope of the Origination Clause, the decision would still be wrong. The court erred in concluding that the assessment provision originated in the Senate. That conclusion rests on a mistaken reading of the legislative history and on an insufficient appreciation of the "practical construction" (Nebeker, 167 U.S. at 202) that must be given, and has been given by Congress itself, to the Clause. It is true, as the court of appeals stated (App., infra, 13a), that the Senate in the 98th Congress was the first of the two houses to pass an assessment provision. But the court incorrectly suggested that it was that provision, Section 201 of S. 2423, which the Senate added to H.R.J. Res. 648 on October 4, 1984. While the Senate's October 4th amendment was identical to the provision ultimately enacted (see 130 Cong. Rec. S13,520, S13,544 (daily ed.)), S. 2423 is different in wording and structure. /14/ What the Senate added to H.R.J. Res. 648 was actually the text of a provision of a House bill -- Section 1005 of H.R. 5690, 98th Cong., 2d Sess. (1984) -- that the House had passed two days earlier, on October 2, 1984. 130 Cong. Rec. H10,721, H10,859 (daily ed.). /15/ Hence, the first house to pass the assessment provision that was enacted into law was the House of Representatives, not the Senate. And what the Senate did by its October 4th amendment was nothing more than to take two House-passed bills and to merge part of one into the other. Where, as here, the House is the first actually to pass the precise measure in question, the measure must be found to have originated in the House, even though a similar measure had earlier been passed by the Senate. Although other conditions would doubtless also be sufficient to find House origination, one sensible and readily applicable test for origination is which house first passed the particular measure that was ultimately enacted. That conclusion also follows a fortiori from the well-established prerogative of the House, upon being presented with a Senate-originated bill for raising revenue, to insert the Senate's language into a House bill, pass the new bill, and send it to the Senate. /16/ Since the House may do that, it may also, upon being presented a Senate-originated revenue bill, insert a modified version of that bill into a new House bill. The fact that the new House bill "originated" in the House is not altered in any way when that bill and another House bill are combined by the Senate into a single bill. In the present case, the House bill, H.R. 5690, was not simply a modified version of the earlier Senate-passed measure, S. 2423. It was an accommodation of S. 2423 and several other measures, including another House bill, H.R. 3498, 98th Cong., 1st Sess. (1983). /17/ Rep. Rodino explained the origins of the Senate amendments to H.R.J. Res. 648 and hence of the conference bill (130 Cong. Rec. H12,084 (daily ed. Oct. 10, 1984)): The other body early last August passed a modified version of the administration bill, and shortly after that I began negotiations with the administration and the leadership of the other body's Judiciary Committee. Those negotiations successfully resolved the differences among the three bills -- H.R. 3498, the administration bill, and the bill passed by the other body. I introduced the compromise that we worked out -- H.R. 6403 -- which was also included in the crime package amendments to H.R. 5690 that were approved by the House on Tuesday, October 2. The other body attached the compromise to the continuing resolution, and the House's conferees agreed to accept the language. In short, the bill that enacted Section 3013 into law originated in the House for purposes of the Origination Clause. c. The foregoing conclusions are bolstered by a number of considerations that strongly counsel against judicial invalidation of statutes under the Origination Clause. To begin with, this Court has at least implicitly suggested that policing compliance with the Clause might be a matter for Congress alone. Thus, based on the ruling in Field v. Clark, 143 U.S. 649 (1892), that a court should not look behind the signatures of the Speaker and the President of the Senate on an enrolled bill to determine whether the signed bill omitted a provision included in the bill upon its passage, the Court has on three occasions expressly reserved the question whether it is ever appropriate for a court to examine the Journals of Congress to determine in which house a bill that has been passed by both houses and signed by the President in fact originated. Rainey v. United States, 232 U.S. 310, 317 (1914); Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911); Nebeker, 167 U.S. at 203. /18/ In addition, the Senate and House of Representatives have a strong reliance interest in the continuation of at most a modest judicial role under the Origination Clause. No court has struck down any statute under the Clause, except for the lone 1915 district court decision that involved an express congressional declaration of Senate origin of a concededly revenue-raising bill -- a matter of labels entirely within Congress's control. See note 5, supra. Various House precedents clearly exhibit reliance on a limited judicial role. See, e.g., 6 C. Cannon, Cannon's Precedents of the House of Representatives Section 314, at 448 (1935) (Origination Clause objection in House untimely once bill went to conference); id. Section 315, at 448-449 (discussing "differentiation between bills for the purpose of raising revenue and bills which incidentally raise revenue"); 2 A. Hinds, Hinds' Precedents of the House of Representatives Section 1491, at 954 (1907) (discussing untimeliness of Origination Clause objection). As a practical matter, Congress has enacted legislation against the background of the lenient standards of this Court's and other courts' decisions. Furthermore, the House and Senate have long paid close attention to the enforcement of the Origination Clause. See, e.g., 2 A. Hinds, supra, Section 1481, at 942 (discussing 1807 precedent); H.R. Doc. No. 279, 99th Cong., 2d Sess. 43-44 (1987) (House annotation of Origination Clause, citing to rules and precedents). The House's ability to enforce its prerogatives under the Clause strengthens the case for viewing the Clause at least primarily as an internal rule of procedure not calling for aggressive judicial supervision. Cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) (federalism limits of Tenth Amendment enforceable principally through the political process). Such a view of the Clause is also suggested by the difficulty of identifying what concrete protections the Clause today affords the citizenry. While the British rule that money bills must originate in the House of Commons, with the House of Lords entitled only to approve or disapprove, reflected the unrepresentative character of the Lords, that concern was always of limited applicability to our government (see J. Story, Commentaries on the Constitution Sections 445, 446, at 315-317 (R. Rotunda & J. Nowak ed. 1987)), and it is especially so now that the Senate is popularly elected. U.S. Const. Amend. XVII. /19/ Hence, as the court of appeals in the present case acknowledged, "diminished concern about the Senate's lack of accountability has largely undermined the clause's rationale." App., infra, 4a (footnote omitted). Accordingly, in addition to the ordinary principle requiring statutes to be construed to avoid constitutional difficulties, considerations distinctive to the Origination Clause counsel caution in the judicial invalidation of a duly enacted statute under the Clause. The court of appeals' decision here did not display the needed caution. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General RICHARD G. TARANTO Assistant to the Solicitor General MAY 1989 /1/ Section 3013(a) was amended in 1988. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Sections 7082, 7085, 102 Stat. 4407, 4408; see App., infra, 33a-34a (reproducing current version of Section 3013 and identifying amendments). The amendment, which refined the schedule of assessments for misdemeanors and infractions, does not apply in the present case, as the offenses, the prosecution, and the judgment all occurred in 1985. Under the current version of Section 3013, respondent's offenses, which would be Class B misdemeanors (18 U.S.C. 3559 (Supp. IV 1986)), would result in assessments of only $10 per count. Subsec. (a)(1)(A)(ii). The 1988 amendment, like the 1987 amendment that added subsections (c) and (d) to Section 3013 (see Criminal Fine Improvements Act of 1987, Pub. L. No. 100-185, Section 3, 101 Stat. 1279), did not alter Section 3013's directive that assessments shall be imposed on all persons convicted of a federal offense. /2/ At the time, Rule 35(a) provided that "(t)he court may correct an illegal sentence at any time." Rule 35 was completely revised effective November 1, 1987, by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, Section 215(b), 98 Stat. 2015. See Section 235(a)(1), 98 Stat. 2031; Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, Section 4, 99 Stat. 1728. /3/ The district court, like the magistrate, rejected not only the Origination Clause challenge but also respondent's additional arguments -- that only one assessment could be imposed on him because his two offenses arose from a single transaction (App., infra, 23a-24a), and that no special assessment could be imposed for a petty offense, such as his violation of 8 U.S.C. 1325 (App., infra, 24a-25a). /4/ The Tenth Circuit held that, because Section 3013 assessments were penal, they were inapplicable to cases arising under the Assimilative Crimes Act, which states that persons who violate state criminal laws in certain areas within federal jurisdiction "shall be guilty of a like offense and subject to a like punishment" (18 U.S.C. 13). In 1987, Congress overruled Mayberry by adding subsection (d) to Section 3013. See App., infra, 34a. /5/ The court ruled that respondent's Origination Clause challenge does not present a nonjusticiable political question. App., infra, 2a-4a. While noting that Congress itself has means to police its own compliance with the Origination Clause (id. at 3a & n.1), the court stated that the text of the Clause does not commit its enforcement to the political branches and that the standards of the Clause are judicially manageable and involve no policy determinations (id. at 3a-4a). The court also observed that five decisions of this Court and numerous lower court decisions had adjudicated Origination Clause challenges on the merits, although, among all of those decisions, only one district court decision, rendered in 1915, had actually found a violation of the Clause. Id. at 4a, 5a-6a & n.3 (citing Hubbard v. Lowe, 226 F. 135 (S.D.N.Y. 1915)). That lone decision held a statute invalid under the Clause where (a) the parties agreed that the enacted bill was one for raising revenue and (b) the bill was accompanied by an official certification by the secretary of the Senate that the bill originated in the Senate. 226 F. at 137, 138. /6/ The court also stated (App., infra, 9a) that "Congress failed to restrict the use of the monies assessed under section 3013 in any way, so that they might be shifted to another purpose at any time" and that Congress recognized that "only small amounts would be collected by the assessments." /7/ The court noted (App., infra, 11a-12a) that all but one of the prior decisions holding that Section 3013 assessments are punitive drew that conclusion for purposes of the Assimilative Crimes Act, 18 U.S.C. 13, or the Seventh Amendment civil jury trial right. See United States v. Mayberry, 774 F.2d 1018 (10th Cir. 1985) (18 U.S.C. 13); see also United States v. Davis, 845 F.2d 94, 97 n.2 (5th Cir. 1988) (same); United States v. King, 824 F.2d 313, 317 (4th Cir. 1987) (same); United States v. Smith, 818 F.2d 687 (9th Cir. 1987) (Seventh Amendment). The court declined to follow the sole prior decision rejecting an Origination Clause challenge to Section 3013, United States v. Ramos, 624 F. Supp. 970, 973 (S.D.N.Y. 1985), explaining that it relied on Mayberry's analysis outside the Origination Clause context. App., infra, 12a. The court of appeals also noted (id. at 11a) that two decisions, United States v. Donaldson, 797 F.2d 125, 127 (3d Cir. 1986), and United States v. Dobbins, 807 F.2d 130 (8th Cir. 1986), had stated that Section 3013 was not a criminal statute subject to the rule of lenity because its purpose was to raise funds to support the crime victims' assistance program; the court of appeals did not discuss those decisions in rejecting the claim that the purpose of Section 3013 was to support the victims' program. /8/ In the year ending June 1988, there were approximately 40,000 criminal convictions nationwide, approximately 9,000 of which occurred within the Ninth Circuit. Director, Administrative Office of U.S. Courts, Annual Report 1988, at 298, 302. /9/ The 1987 amendment of Section 3013 did not amend subsection (a), which mandates the imposition of the assessments. See note 1, supra. /10/ As the court of appeals noted (App., infra, 2a-6a), this Court has never held a statute invalid under the Origination Clause, and there appears to be only one decision so holding. That decision, rendered by a district court in 1915, was based on the express declaration of the secretary of the Senate that a bill that was concededly a revenue-raising measure originated in the Senate. See note 5, supra. /11/ This understanding of the narrow scope of the Clause is supported by its carefully chosen language, which refers not to bills that raise revenue or to revenue-raising bills or to money bills, but to bills "for" raising revenue. This narrow reading is also supported by the debates on the Clause in the 1787 Convention. See, e.g., 2 M. Farrand, The Records of the Federal Convention of 1787, at 263 (1937) (Randolph); id. at 273 (Mason); id. at 276 (Madison) (noting that the term "revenue" is ambiguous, that many measures would have a revenue purpose as well as another, and that it would often be difficult to determine whether raising revenue was the primary one). /12/ The $100 million cap has since been raised. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, Sections 7121(a), 7129, 102 Stat. 4419, 4423; Children's Justice and Assistance Act of 1986, Pub. L. No. 99-401, Section 102(b)(1), 100 Stat. 904. /13/ The Senate's use of "penalty assessments" in its first assessment provision lends additional support. See p. 7, supra. Contrary to the court of appeals' suggestion (App., infra, 10a-11a), there is no indication that Congress altered its understanding of the assessment provision when it changed "penalty assessments" to "special assessments." /14/ Section 201 of S. 2423 stated (130 Cong. Rec. 23,805 (1984)): PENALTY ASSESSMENT FEES Sec. 201. Whenever any person is convicted of an offense in any court of the United States, the court shall impose a penalty assessment fee on such person in the amount of -- (a) $25, if the defendant is an individual and the offense is a misdemeanor; (b) $50, if the defendant is an individual and the offense is a felony; (c) $100, if the defendant is a person other than an individual and the offense is a misdemeanor; and (d) $200, if the defendant is a person other than an individual and the offense is a felony. /15/ Section 1005 of the House bill is identical to Section 1405 of H.R.J. Res. 648 -- the section adding Section 3013 to the criminal code -- as it was enacted into law as Pub. L. No. 98-473. /16/ See generally 3 L. Deschler, Deschler's Precedents of the United States House of Representatives Sections 13-18, at 292-312 (1974) (H.R. Doc. No. 661, 94th Cong., 2d Sess (1974)); 2 A. Hinds, Hinds' Precedents of the House of Representatives Sections 1484, 1485, 1495, at 943-969 (1907). Without that prerogative, the House could be entirely precluded by the Senate from adopting a given revenue measure if the Senate simply passed it first. That would not only be practically intolerable but would turn the Origination Clause's protection of a House prerogative on its head. /17/ In light of the court of appeals' statement that "(t)he special assessment provision was introduced in the Senate Judiciary Committee" in May 1984 (App., infra, 13a-14a), it is worth noting that Rep. Rodino introduced H.R. 3498 on June 30, 1983, and that H.R. 3498 is far closer to the enacted bill in language and structure than is S. 2423. See U.S. Dep't of Justice, Office of Justice Programs, Indexed Legislative History of the Victims of Crime Act of 1984, at 176 (1985). /18/ The Fifth Circuit in Texas Ass'n of Concerned Taxpayers, Inc. v. United States, 772 F.2d 163 (1985), cert. denied, 476 U.S. 1151 (1986), held nonjusticiable the question whether a bill that reduced taxes was a bill for raising revenue within the meaning of the Origination Clause. Indeed, it is not entirely clear whether it is possible to formulate judicially manageable standards to determine in all cases whether a bill is truly a revenue bill "in the strict sense" or whether a bill "originated" in the House, given that many bills have mixed purposes, that "origination" has no single obvious meaning, and the need for congressional flexibility. /19/ The Framers drew the Origination Clause from the British rule, but like most of the States prior to 1787, they deliberately departed from the British model by, inter alia, permitting the Senate to amend House bills for raising revenue. See, e.g., 1 M. Farrand, supra, at 233 (Madison); 2 id. at 278 (Dickenson); id. at 279 (Rutlidge); 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 376 (2d ed. 1836) (Madison). Appendix