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I was looking at H.R.748 - CARES (Coronavirus Aid, Relief, and Economic Security) Act on the Congress website. I was surprised to find that the bill originally passed the House on July 17, 2019. I found this strange because the Coronavirus was not known until the last few months of 2019.

I looked at the original bill from the house. It is fairly short and has nothing to do with Coronavirus, but instead talks about removing a specific tax related to healthcare.

I took a looked at the Senate amendment to the bill. It says, "Strike all after the enacting clause and insert the following:" This is followed the very lengthy text of the CARES Act. It does not contain any text related to the original purpose of the bill.

Why did the Senate use this bill instead of creating a new one? What happened to the original? Since the Senate replaced it's text, can it no longer fulfill it's original purpose?

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The reason for amending this bill instead of the Senate creating a new bill was to fulfil the requirements of Article I, Section 7, Clause 1 of the Constitution, also known as the Origination or Revenue clause, which states that all bills for raising revenue must originate within the House of Representatives. Note that despite the Senate seemingly being able to dictate the content of the bill, the House still has to approve the amendment.

The Senate has decided that it is legitimate to fulfil the letter of this clause, if arguably not the spirit, by replacing the entire text of a bill originating in the House with a bill for raising revenue. The constitutionality of this decision has been examined by Rebecca M. Kysar in her 2013 paper The 'Shell Bill' Game: Avoidance and The Origination Clause. In Chapter II, subsection C2, she notes that while the Supreme Court has never ruled on this, several state courts and lower federal courts have condoned this interpretation.

The original bill is now one and the same as the CARES Act, and you are correct in saying that it can no longer fill its original purpose, as the original wording has been completely removed and replaced by the Senate amendment.

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    I can only imagine the copious amounts of illegal substances ingested by those state and lower court judges. – hobbs Apr 9 at 4:18
  • @hobbs: Such interpretations of the Constitution ignore the principle that the authors of laws (including the Constitution) should be presumed to have intended the contents thereof to have some meaning. For example, the first part of the Second Amendment could be regarded as clarifying that the term "arms" used in the main part refers to artifacts which would be suitable for use as weapons in the context of a well-functioning citizen army, rather than including all artifacts which might conceivably be used as weapons (which would include just about anything). – supercat Apr 9 at 16:45
  • @hobbs: While the question of how much a piece of legislation can change while still being "the same bill" would in some cases require a judgment call, the Constitution does not recognize the existence of bill numbers. If a tax bill were assigned an S number but precisely matched the text of a pre-existing HR bill, and the House voted on a bill with that text before the Senate did so, the bill would be said to originated in the House. If a bill's text is completely different from that of another bill with the same number, however, it should be recognized as a different bill. – supercat Apr 9 at 16:49
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Why did the Senate use this bill instead of creating a new one?

On March 20, 2020, Sen McConnell used H.R. 748 as a "shell" to implement the CARES Act. Using an existing bill that was passed by the House meant that the House only need concur with the Senate changes.

Congressional Record

Mr. MCCONNELL. Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.
The senior assistant legislative clerk read as follows:

CLOTURE MOTION

We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on the motion to proceed to Calendar No. 157, H.R. 748, a bill to amend the Internal Revenue Code of 1986 to repeal the excise tax on high cost employer-sponsored health coverage.
...
Mr. MCCONNELL. I ask unanimous consent that the mandatory quorum call for the cloture motion be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MCCONNELL. Mr. President, I just filed cloture on the motion to proceed to a shell that will serve as the vehicle for the CARES Act. Member-level discussion is going on as we speak. The goal is to reach agreements on each of the four components of the legislation by the end of the day. Senators are here; we are working; and we are going to deliver. [Emboldening added.]


What happened to the original? Since the Senate replaced it's text, can it no longer fulfill it's original purpose?

The original text of the bill and its intent are gone.

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  • Thus they forestalled the rest of the normal rules for bringing a new bill to the House? (committees, etc) – CGCampbell Apr 8 at 20:03

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