Which Action Can Congress Not Perform According to the Constitution
Article I, Section 7
Commodity I, Section 7 of the Constitution creates certain rules to govern how Congress makes law. Its starting time Clause—known equally the Origination Clause—requires all bills for raising revenue to originate in the House of Representatives. The second—the Presentment Clause—requires all laws to be presented to the President for his signature or veto. And the third Clause—the Presentment of Resolutions Clause—prevents Congress from sidestepping the Presentment Clause. Taken together, these rules channel lawmaking through a process that promotes thorough deliberation over the wisdom of any new legislation.
The Origination Clause derived from an English parliamentary practice requiring all money bills to have their first reading in the House of Commons. The Framers borrowed this practice, hoping that information technology would confer the “power of the purse” on the legislative body most responsive to the people—the Business firm of Representatives. As such, only the Firm may introduce bills “for raising revenue,” although the Senate is explicitly empowered to ameliorate House-originated bills. Whatever other type of bill may originate in either the Senate or the Firm.
The Origination Clause was part of the Great Compromise. A concession to the larger states, which were dissatisfied with the smaller states’ disproportionate power in the Senate, it limits the power to introduce tax and tariff bills exclusively to the Business firm of Representatives, where the larger states enjoyed greater representation. Simply while the Clause was hotly contested during the Constitutional Convention and the ratification debates, the Senate’southward power to amend acquirement-raising bills has deprived the Clause of much practical significance.
The Presentment Clause is no such paper tiger. The Clause provides that a bill can become a law only if, afterward passage by both Houses of Congress, it is presented to the President. The President then has ten days either to sign the bill into law or decline the nib and return it to Congress with an caption of his or her objections.
If the President rejects the beak, he or she must render it to the House in which it originated. This process is known as a “veto,” though the word does not really appear in the text of the Constitution. Congress may then modify the bill, responding to the President’s stated objections, to increase the likelihood of presidential approval. Alternatively, Congress may override the President’s veto if both Houses can laissez passer the bill by at least a two-thirds vote. The bill and then becomes law without further “presentment” to the President.
Matters are more complicated if the President does goose egg by the end of the ten-day window. If Congress is in session, the bill becomes a law—a phenomenon known as “default enactment.” If Congress is out of session, yet, the President has no place to render a pecker that he or she wishes to veto. In those circumstances, the President may effectively veto the neb past taking no activity. This process, kickoff used past James Madison during an intersession recess in 1812, is known as a “pocket veto.” Congress may not override a pocket veto.
What exactly constitutes an adjournment for the purposes of a pocket veto has been a source of conflict. Does whatsoever adjournment count, for case, or merely those adjournments that end the legislative session? The Supreme Court provided some insight in the
Pocket Veto Case
(1929), holding that “the determinative question” is whether Congress has adjourned in a manner “that ‘prevents’ the President from returning the neb to the House in which it originated within the time allowed.” Because both Houses had adjourned in the
Pocket Veto Instance, fifty-fifty though the legislation session was not over, a pocket veto was permissible.
The Court refined that interpretation in
Wright v. United States
(1938), ruling that a iii-twenty-four hour period adjournment of just one Firm of Congress does not permit a pocket veto. For brief adjournments of a single Firm, the Courtroom ruled, the originating House may designate an agent, such as a Secretary or Clerk, to receive a vetoed pecker. Mod practice is more fluid than
may propose, however. Several recent Presidents have purported to pocket veto bills even when the originating Business firm of Congress has designated an agent to receive a veto message.
The 3rd and terminal Clause, known as the Presentment of Resolutions Clause, concerns the presentment of orders, resolutions, and any issues other than bills. The Presentment of Resolutions Clause was appended at the behest of James Madison, who foresaw the possibility that Congress might circumvent the presentment process by fashioning a nib as a “resolution” or “order.” To avert that circumvention, the Clause says that any issue requiring the concurrence of the Firm and the Senate—whatever that issue happens to be chosen—must be presented to the President. A congressional announcement of state of war, for instance, comes in the course of a joint resolution. Although it is non denominated a “bill,” it must be submitted for presidential approval.
Non all bug require presentment, all the same. The Clause explicitly exempts questions of banishment and, under Article V, congressionally proposed amendments to the Constitution are sent to state legislatures for approval, non to the President. More mostly, resolutions that are not meant to become police are non bailiwick to presentment. Congress may, for case, adopt concurrent resolutions setting monetary goals without seeking presidential approval. The same holds for resolutions that utilise only to the operation of a item Business firm, such every bit imposing censure on a Firm member or expressing “the mood” of the House. By the aforementioned token, legislative subpoenas are non presented to the president for his approval.
The Supreme Court reinforced the Presentment of Resolutions Clause (and vindicated Madison’s prediction) almost famously in
I.N.S. v. Chadha
(1983), ruling that it was unconstitutional for Congress to use a resolution to overturn an executive action. The Court reasoned that such a “legislative veto” circumvents the presentment process and infringes on the President’s power to execute the laws.
Judicial Enforcement of Article I, Section 7
Some of the most urgent debates in ramble law ascend when courts are asked to enforce those parts of the Constitution—including Article I, Section 7—that construction how Congress makes law.
Although the indicate is often overlooked, most of the ramble rules governing code need no judicial enforcement. The House of Representatives, for instance, does not effort to claim the power to make a police without Senate involvement. Nor do the House and Senate believe that their bills have the force of law even if the President has vetoed them. The rules of bicameralism and presentment are so entrenched in our constitutional system that it would be unthinkable to disregard them.
From time to time, however, complex questions do arise about whether Congress and the President have been true-blue to the code process that Article I, Section seven prescribes. When that happens, the courts may be enlisted to uphold the constitutional design. Courts must then confront a hard question: how stringently should they utilize the open up-ended terms of the Constitution?
Take, for instance, contempo litigation over the Affordable Care Act (ACA), which reformed the nation’s health-care system. Technically, the ACA adhered to the Origination Clause, which says that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” The bill that became the ACA was first introduced and passed in the House as the “Service Members Home Buying Tax Act of 2009.”
That House-originated beak, nevertheless, had zippo whatever to do with health care. The pecker became the ACA but when the Senate struck the linguistic communication of the original bill and replaced it with the text of the health-care reform police. Aught of the original neb remained.
This essay is function of a discussion about Commodity I, Section seven with
Thomas A. Smith,
Professor of Law, University of San Diego Schoolhouse of Law. Read the full discussion hither.
After the ACA’s adoption, lawsuits were filed arguing that this “beat neb” process violated the Origination Clause. The challengers had a point. The Origination Clause is supposed to requite the House of Representatives the first say in whether and when to exercise the ability to tax. Although the Senate tin “propose and concord with
as on other bills,” allowing the Senate to completely
a House-originated bill would effectively strip the Firm of its gatekeeping role. The challengers therefore asked the courts to invalidate the ACA in its entirety.
Wisely, however, the courts accept unanimously turned bated the ramble challenge. The shell beak process was not born with the ACA; information technology is, in fact, a procedure that the Senate has used for 200 years. And the courts take never felt information technology necessary to examine whether Senate amendments are “germane” to a Firm-originated bill. In the 1911 instance of
Flint five. Stone Tracy Company, for example, the Supreme Courtroom affirmed the constitutionality of a Senate amendment that substituted a corporate tax for a Business firm-originated inheritance tax.
In effect, the courts have deferred to Congress’due south longstanding practice, even though the do left the Origination Clause with trivial work to practise. Withal the Republic has non fallen. Over fourth dimension, the give-and-take between the House and the Senate has generated a stable equilibrium that has met with general approval. The courts are rightly reluctant to upset that hard-won equilibrium.
Indeed, the courts’ refusal to breathe new life into the Origination Clause may reflect a tacit recognition that the Clause has outlived its original purpose. Prior to the adoption of the Seventeenth Subpoena, state legislatures selected the Senators that would represent us in Congress. Today, both Houses can credibly claim to speak directly for the people, reducing the need for the House to retain any special command over bills to enhance revenue.
A motility is afoot, withal, to employ constitutional litigation as a sword to disengage what Congress has created. Couched in the rhetoric of restoring the Constitution’south “original meaning,” the movement’southward goal is to clip Congress’south wings and undo its handiwork. The lawsuits against the ACA exemplify that movement.
Only the Constitution’s meaning was not fixed in stone at the moment of its ratification. The Constitution has instead accrued meaning from history, practice, and an evolving sense of its broader purposes. The Origination Clause may do trivial piece of work in the modern era, only that’s OK. Times change; then also does the way we read the Constitution.
To be sure, on rare occasions, judicial intervention to enforce Commodity I, Section 7 may well exist necessary. In
INS v. Chadha
(1983), for example, the Supreme Court was rightly troubled at how a one-house veto over executive-co-operative activity might enable Congress to retain command over the execution of the laws.
But that kind of intervention should exist the exception, not the norm. Otherwise, judicial superintendence of the machinery of lawmaking risks thwarting the will of the people without adequate justification. When it comes to the Origination Clause, the courts take then far resisted the blandishments of those who seek to invalidate Congress’due south handiwork in the name of restoring the Constitution’due south original significant. They should continue to do so.
The Future of Commodity I, Department 7
1 of the near interesting recent developments in our understanding of Article I, Section 7 concerns its tertiary Clause, known as the Presentment of Resolutions Clause, or the Society, Resolution, and Vote (ORV) Clause. Subject to a major revelation in the early twenty-first century, its story illustrates originalist legal scholarship in action. (Originalism is an approach to the Constitution that seeks to interpret it co-ordinate to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to exist a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’due south piece of work revealed that the Framers’ intent was quite likely otherwise.
The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Ramble Convention. Madison proposed that Clause 2, the Presentment Clause, exist amended to include the phrase “or resolve” afterward “bill,” achieving the aforementioned effect every bit that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the post-obit day. According to Madison, the ORV Clause was simply a “new class” of his failed amendment. Equally practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted uncritically by the Supreme Court and legal scholars.
What Tillman uncovered was that Madison’due south interpretation of the ORV Clause is actually inconsistent with the constitutional text. Tillman’due south 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These deportment include a range of single-House deportment authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—about notably,
INS 5. Chadha
Chadha, the Court struck down the “legislative veto” by the House of Representatives for failing to comply with the principle of bicameralism.
Tillman’s findings likewise neatly resolved an otherwise puzzling Supreme Court decision from 1798. In
Hollingsworth v. Virginia, the Courtroom ruled in a brief stance that Congress demand non have presented the Eleventh Subpoena to President Washington for his approval. Subsequent decisions have interpreted the holding to mean simply that constitutional amendment resolutions are exempt from the presentment requirement. Under Tillman’due south interpretation, withal, the
mystery is solved: the ORV Clause requires that an order, resolution, or vote must exist presented to the President
simply if it is authorized past a prior statute
(“to which the Concurrence of the Senate and House or Representatives may be necessary . . . ”). Because Congress does not rely on any statutory authority when it passes constitutional amendments, the ORV Clause does not apply, and Congress thus need not present constitutional amendment resolutions to the President.
Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may consul authorization to single Houses or even single congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to do just that. Though Lawson mostly agreed with Tillman’south interpretation of the ORV Clause, he plant that at that place likely exists merely one category of legislative action to which the ORV Clause could employ: the issuance of legislative subpoenas.
This essay is office of a give-and-take about Article I, Section vii with
Professor of Police force, The University of Michigan Law School. Read the full discussion hither.
According to Lawson’southward reading of the Constitution, Congress may not delegate legislative authority simply to anyone—not to the President, nor the federal courts, nor even itself. The ORV Clause thus cannot require presentment for whatsoever actions made by a single Firm or committee pursuant to delegated legislative dominance, because such delegation is constitutionally impermissible. Further, as Lawson interprets the Presentment Clause, the
blazon of legislation that tin become a police force is a bill. The ORV Clause, however, alludes to an order, resolution, or vote that “shall have Upshot” upon approval of the President or passage by ii-thirds of the Senate and the House. If just a beak may become a law, Lawson asks, then how else may an order, resolution, or vote “take Consequence”? His answer is that Congress, nether the potency of the Necessary and Proper Clause, may enact legislation authorizing each House to issue subpoenas.
While the Constitution grants neither House of Congress the ability to issue subpoenas, a law authorizing the issuance of subpoenas by private Houses could be valid under the Necessary and Proper Clause, which allows Congress “to make all laws which shall be necessary and proper for carrying into Execution” powers elsewhere granted to the respective Houses. As Lawson allows, the power to consequence subpoenas may be necessary and proper for conveying into execution the impeachment powers the Constitution grants to each of the Houses. Though information technology could not get a law, a legislative subpoena would “have Effect” by compelling testimony in an impeachment hearing. In practice, then, the ORV Clause would require that before any single House issues a subpoena on the authority of a prior statutory authorization, the subpoena be presented to the President for his approval or veto, just equally was the prior legislation that authorized the single-House amendment.
The Tillman-Lawson assay may strike one equally excessively technical, only in this as in many other parts of our Constitution, the devil is in the details. The Supreme Court might revisit
Chadha, and when it does, these scholars’ arguments may all of a sudden take on the relevance of living, and contested, law.
Seth Barrett Tillman,
A Textualist Defense of Article I, Department vii, Clause 3: Why
Hollingsworth v. Virginia
Was Rightly Decided, and Why
INS v. Chadha
Was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005).
Called-for Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).
Which Action Can Congress Not Perform According to the Constitution