Jake Settle: Origination and Original Meaning
Michael Ramsey
Recently published: Jake Settle (George Mason Univ. Scalia Law School JD '25), Origination and Original Meaning: Reviving the Origination Clause to Restrain the Administrative State (31 Geo. Mason L. Rev. 697 (2024)). Here is the introduction (footnotes omitted):
At the end of 2021, just before Christmas, thousands of rural communities got a surprise gift from the U.S. Forest Service: a proposed new fee being levied upon their emergency services departments. Like many rural communities, Montezuma County, Colorado, has been forced into a symbiotic relationship with the federal bureaucracy. Approximately 72% of the land within the county is owned, managed, and exclusively controlled by federal administrative agencies. To have meaningful public services, utility access, and other key infrastructure, Montezuma County must cooperate with federal agencies. For instance, to cover its whole jurisdiction with radio connectivity, Montezuma County’s Emergency Management Office required a permit to build two emergency communications towers on U.S. Forest Service land to be used by first responders in the region. These communications towers are necessary to support the county’s police radio, disaster response, 911 dispatch operations, and other critical emergency services. Additionally, Montezuma County even allows federal agencies like the U.S. Forest Service to use these communications towers free of charge to dispatch forest rangers and wildland firefighters.1
According to Montezuma County Emergency Manager Jim Spratlin, this arrangement with the U.S. Forest Service was working out well, with both sides being “good neighbors” until December 2021. Just after Christmas, Spratlin read a notice in the Federal Register that the U.S. Forest Service was planning to impose new fees on the county’s emergency communications towers. In addition to the land use fees and permitting fees that Montezuma County already paid, the Forest Service proposed adding another fee to go directly into the agency’s coffers. In the Agriculture Improvement Act of 2018 (“2018 Farm Bill”), Congress granted the Forest Service the power to impose a tax to gather revenue from communications permit holders to fund the costs of administering the bureaucracy overseeing rural communication regulations. The vague statutory provision in the 2018 Farm Bill gave Montezuma County no notice as to how much the newly established fees would be. The only guideline that the bill established was that the fee amount should be “based on the cost to the Forest Service of any maintenance or other activities required to be performed by the Forest Service as a result of the location . . . of the communications facility.” For years, Montezuma County did not know what their new financial obligation would be until the Forest Service finally moved to collect this new revenue source at the end of 2021.
The Forest Service’s proposed new fee structure would collect revenue from operators of radio or fiber optic communication equipment on U.S. Forest Service land. In sum, the total revenue collected would be enough to cover 100% of the operating budget of the bureaucrats managing the permitting process. The agency determined that it wanted to collect $5.4 million per year to fund staff salaries, training, and administrative overhead. Starting with that bottom line in mind, the agency then divided the cost of its budget among all communications permit holders—with no distinction between small local governments and massive commercial telecommunications providers—and determined that Montezuma County would owe $1,400 for each radio operating on national forest lands.
Without any opportunity for their elected representatives to debate the issue, thousands of communication permit holders suddenly found themselves in debt to a government agency. Only after the regulation was promulgated did eleven members of Congress have the opportunity to advocate for Montezuma County and criticize the U.S. Forest Service for crafting “a one-size-fits-all administrative fee structure” that failed to exempt local government entities.
Assessing fees via executive rulemaking deprives Americans of the vigorous debate that the Framers intended to be injected into revenue decisions. In rulemaking, instead of having elected representatives debate the merits of a policy before it is enacted, legislative “debate” happens retroactively, with elected members of Congress writing desperate letters asking federal agencies to reconsider their regulations ad hoc. By straying from the Constitution’s narrow procedure for raising government revenue, the growth of the administrative state has created a system that leaves American communities, like Montezuma County, in the dust.
To prevent revenue raising by executive rulemaking, a rediscovery and revitalization of the Origination Clause’s procedural safeguards is necessary. Agency rules assessing fees violate the Origination Clause’s purpose of linking the politically sensitive job of allocating tax burdens to the most accountable elected officials. Out of respect for the Origination Clause’s carefully delineated congressional procedure for raising revenue, courts should strike down agency rulemaking provisions that raise revenue.
First, this Comment reviews the history of the Origination Clause and how purposive jurisprudence sapped it of its original strength. Next, it argues that the time is ripe for reconsideration of the Origination Clause by departing from purposive jurisprudence and, instead, applying an originalist analysis of the Origination Clause. Finally, it concludes that courts should strike down agency regulations that raise revenue since the Origination Clause must at least mean that revenue decisions cannot be isolated from the people’s elected representatives.
(Via Paul Caron at TaxProf Blog.)