863 F.2d 654 (9th Cir. 1988), 86-5236, United States v. Munoz-Flores

Docket Nº:86-5236.
Citation:863 F.2d 654
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. German MUNOZ-FLORES, Defendant-Appellant.
Case Date:December 12, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 654

863 F.2d 654 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


German MUNOZ-FLORES, Defendant-Appellant.

No. 86-5236.

United States Court of Appeals, Ninth Circuit

December 12, 1988

Argued March 4, 1987.

Submitted Aug. 2, 1987.

Page 655

Judy Clarke and Verna J. Wefald, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before WRIGHT, FERGUSON and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

In this appeal of the denial of a motion to set aside a sentence imposing two twenty-five dollar special assessments for immigration law violations, German Munoz-Flores ("Munoz") contends that passage of the Special Assessment on Convicted Persons (18 U.S.C. Sec. 3013 (1984)) did not comply with the requirements of the origination clause of the Constitution.

We find that the constitutionality of the Special Assessment on Convicted Persons is squarely presented in this appeal. An analysis of the legislative history of the statute persuades us that the enactment of the special assessment failed to comply with the constitutionally mandated procedure. We therefore vacate that portion of the court's sentencing order imposing special assessments.

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After pleading guilty to two counts of aiding and abetting an alien to elude examination and inspection in violation of 18 U.S.C. Sec. 2 and 8 U.S.C. Sec. 1325, Munoz was sentenced to two years unsupervised probation and ordered to pay special assessments of $25 for each count, pursuant to 18 U.S.C. Sec. 3013.

Munoz moved to correct this sentence under Fed.R.Crim.P. 35(a), asserting that the special assessments were invalid because the legislation authorizing these assessments originated in the Senate contrary to article I, Sec. 7 of the Constitution. The magistrate denied the motion, finding the assessment constitutional, and the district court affirmed. Munoz timely appeals.




Before turning to the merits of Munoz's constitutional claim, we must consider whether an origination clause challenge to a statute implicates the political question doctrine, rendering the issue inappropriate for judicial determination. The Supreme Court has indicated that an issue is nonjusticiable when one of the following circumstances is present: (1) "a textually demonstrable constitutional commitment of the issue to a coordinate political department"; (2) "a lack of judicially discoverable and manageable standards for resolving it"; (3) "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion"; (4) "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government"; (5) "an unusual need for unquestioning adherence to a political decision already made"; or (6) "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 2779, 77 L.Ed.2d 317 (1983) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962)).

The instant case presents none of these factors. The text of the origination clause does not commit its interpretation to the political branches. The standards of the clause are clear, and its application requires no policy determinations. The determination of which house a bill originated in and whether it raises revenue are questions the courts are functionally well-equipped to answer. Finally, this case does not implicate prudential considerations of deference to the decisions of another governmental branch. Although mechanisms allowing Congress itself to question the constitutionality of a bill under the origination clause exist 1, the failure of Congress to inquire whether a statute violates the origination clause should not preclude the courts from doing so. Certainly, this court should not interpret Congress' silence on an origination clause issue to preclude judicial examination, when it has refused to draw such a conclusion from Congress' explicit finding that a bill did not violate the origination clause. See Armstrong v. United States, 759 F.2d 1378, 1380 (9th Cir.1985) ("Although Congress has an obligation to enact legislation that it deems to be constitutional, its determination that a particular statute is constitutional does not foreclose or relieve this court from conducting its own analysis of that issue"). But cf. Texas Assoc. of Concerned Taxpayers v. United States, 772 F.2d 163, 166-67 (5th Cir.1985) (refusing to analyze a statute under the origination clause on the grounds that Congress had itself previously determined that the statute in question did not violate the origination clause), cert. denied, 476 U.S. 1151, 106 S.Ct. 2265, 90 L.Ed.2d 710 (1986). Holding the origination clause justiciable also comports with a number of Supreme Court decisions in which the Court adjudicated origination clause challenges to statutes. See, e.g., Flint v. Stone Tracy Co.,

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220 U.S. 107, 142-43, 31 S.Ct. 342, 345-46, 55 L.Ed. 389 (1911).

Therefore, we consider the merits of Munoz's claim.



The origination clause provides that "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." U.S. Const. art. I, Sec. 7. The origination requirement was intended to grant primary power over taxation to the house more closely tied to the popular will. See 2 P. Kurland & R. Lerner, The Founders' Constitution 376 (1987). Although diminished concern about the Senate's lack of accountability has largely undermined the clause's rationale 2, the requirement of origination in the House persists and in recent years has been the basis of a number of statutory challenges. See, e.g., Sperry Corp. v. United States, 12 Cl.Ct. 736 (1987) (rejecting an origination clause challenge to the Iran Claims Act), reversed on other grounds, 853 F.2d 904 (Fed.Cir.1988); Armstrong, 759 F.2d at 1378 (upholding the Tax Equity and Fiscal Responsibility Act of 1982 against an origination clause challenge). 3 Indeed, one decision struck down a statute on the grounds that it violated article I, Sec. 7. Hubbard v. Lowe, 226 F. 135 (S.D.N.Y.1915), appeal dismissed, 242 U.S. 654, 37 S.Ct. 12, 61 L.Ed. 547 (1916).

Munoz asserts that the adoption of section 3013 violated article I, Sec. 7. The analysis of an origination clause issue is straightforward and tracks the language of the clause. First, we must gauge whether the statute falls within the class of revenue raising bills covered by the clause. If the bill is one that raises revenue within the meaning of art. I, Sec. 7, the court must next determine if the bill originated in the House, as required by the clause. Finally, the court must examine whether the Senate's participation in the...

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