The polit­i­cal war of words over $85 bil­lion in auto­mat­ic spend­ing cuts set to take effect March 1 will next evolve into a leg­isla­tive bat­tle in the Sen­ate. The result of that bat­tle is uncer­tain. The final out­come is not: whether or not the Sen­ate man­ages to pass the mea­sure, it will not become law. It will not because it cannot.

Although the bill won’t actu­al­ly be intro­duced until next Mon­day or Tues­day, it is expect­ed to replace the across-the-board spend­ing cuts with a mix­ture of spec­i­fied cuts and tax increas­es. And there­in lies its undoing.

Arti­cle I, Sec­tion 7, Clause 1 of the Con­sti­tu­tion pro­vides that: “All Bills for rais­ing Rev­enue shall orig­i­nate in the House of Rep­re­sen­ta­tives.” A Sen­ate-orig­i­nat­ed bill that rais­es tax­es is there­fore uncon­sti­tu­tion­al on its face.

The Con­gres­sion­al Research Ser­vice has exam­ined the top­ic of Sen­ate-orig­i­nat­ed tax bills at some length. Its upshot is suc­cinct and unambiguous:

“As gen­er­al­ly under­stood in both the House and Sen­ate, this clause car­ries two kinds of

pro­hi­bi­tions. First, the Sen­ate may not orig­i­nate any mea­sure that includes a pro­vi­sion for raising

rev­enue, and sec­ond, the Sen­ate may not pro­pose any amend­ment that would raise rev­enue to a

non-rev­enue mea­sure” (CRS, p. 1).

Under House rules, it is not even in order for the body to con­sid­er a Sen­ate-passed rev­enue bill. They are typ­i­cal­ly ignored, buried in com­mit­tee, or “blue-slipped,” returned to the Sen­ate with a res­o­lu­tion print­ed on blue paper indi­cat­ing that the House will not waste its pre­cious time debat­ing an uncon­sti­tu­tion­al bill.

But if the House were to adopt a Sen­ate-passed rev­enue mea­sure and the Pres­i­dent were to sign it, the Supreme Court would strike it down, accord­ing to CRS.

“As with oth­er pro­vi­sions of the Con­sti­tu­tion, if the Court were to find that a rev­enue bill had been passed in vio­la­tion of the Orig­i­na­tion Clause, the con­se­quence would be for the statute or pro­vi­sion to be held invalid”

(CRS, p. 10).

The deter­min­ing fac­tor for the Court has gen­er­al­ly been the “enrolled bill doc­trine.” The basis of that doc­trine has to do with how “enrolled bills” – those that pass the House and Sen­ate, are enrolled by Con­gres­sion­al clerks and sent to the Pres­i­dent for sig­na­ture – are des­ig­nat­ed. Enrolled bills that orig­i­nat­ed in the Sen­ate have an “S” bill num­ber (e.g., S. 345); those that orig­i­nat­ed in the House bear an “HR” bill num­ber (e.g., H.R. 123). The Court’s gen­er­al rule is that if an enrolled bill that rais­es rev­enues has an “S” bill num­ber, it is unconstitutional.

It’s worth not­ing here that this is not the usu­al Repub­li­can House vs. Demo­c­ra­t­ic Sen­ate melee that we’ve grown accus­tomed to over the past cou­ple of years. This is a mat­ter of con­sti­tu­tion­al and insti­tu­tion­al sig­nif­i­cance that tran­scends par­ty dif­fer­ences and that the courts take very seri­ous­ly. It hap­pens that in this case it will be the Repub­li­can House rebuff­ing a tax bill from a Demo­c­ra­t­ic Sen­ate. If par­ty con­trols were reversed, the result would be quite the same.

Next week promis­es to be chock full of Wash­ing­ton pyrotech­nics. On Mon­day or Tues­day, Sen­a­tor Reid will intro­duce his bill to elim­i­nate the sequester. Spec­u­la­tion will abound. Will some Repub­li­cans, spooked by adverse pub­lic reac­tion to the spend­ing cuts, back the bill? Will cer­tain mod­er­ate Democ­rats, whose con­stituen­cies would be harmed by the measure’s tax pro­vi­sions, oppose it? Will Repub­li­cans fil­i­buster it? Should it pass the Sen­ate, there will be calls for the House to pass it as well.

That won’t hap­pen because tax bills have to orig­i­nate in the House.

So why is the Sen­ate doing this? The first ques­tion is, “Why now?” Con­gress has known since Jan­u­ary 1 that the sequester was going to hap­pen on March 1. If these cuts are as dev­as­tat­ing to the econ­o­my, pub­lic health and safe­ty and the gen­er­al well-being of the coun­try as the Pres­i­dent now claims, then why is the Sen­ate wait­ing until 3 or 4 days before they take effect to intro­duce a bill?

The answer is that this is large­ly a polit­i­cal exer­cise. Despite the ris­ing furor over seques­tra­tion, it appears that Democ­rats and Repub­li­cans have decid­ed to let it hap­pen. Nei­ther the Pres­i­dent nor Con­gres­sion­al lead­ers of either par­ty has shown the remotest inter­est in nego­ti­at­ing over a res­o­lu­tion. Instead, each par­ty blames the oth­er for what­ev­er dam­age seques­tra­tion might do. Repub­li­cans note that the Pres­i­dent called for includ­ing seques­tra­tion in the August 2011 debt ceil­ing bill, as a fall­back should the so-called “super-com­mit­tee” fail to reach con­sen­sus on a broad deficit reduc­tion pack­age. Democ­rats blame the GOP-con­trolled House for refus­ing to move a bill that would head off the auto­mat­ic cuts.

For now, Repub­li­cans are firm in their deter­mi­na­tion to let the cuts take effect, believ­ing that spend­ing cuts, how­ev­er arbi­trary, are prefer­able to a sec­ond tax hike in two months. Democ­rats are more than hap­py to go along because they believe that their oppo­nents will capit­u­late after absorb­ing anoth­er pub­lic rela­tions beat­ing by the President.

It all makes for good the­ater. But we know this for sure: the movie won’t end with the House pass­ing a Sen­ate-orig­i­nat­ed tax bill.