Which Action Can Congress Not Perform According to the Constitution

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.

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
Amendments
as on other bills,” allowing the Senate to completely
supercede
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.

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
(1983). In
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
Hollingsworth
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.

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
only
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.

Further Reading:

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).

Gary Lawson,
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).