"There is always a philosophy for lack of courage."—Albert Camus

Friday, September 30, 2016

The Legislative Veto, INS v. Chadha, and Originalism


United States Constitution Article I, Section 7, Clause 3 reads:
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Madison, in his Notes on the Debates in the Federal Convention (Aug. 15 & Aug. 16, 1787), suggested it meant the following:
Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [properly stylized when enacted per U.S. Const. art. I, § 7, cl. 2].[1]
Thus, this clause is usually called: the Presentment of Resolutions Clause, the Second Presentment Clause, or the Residual Presentment Clause: it ensures presentment of bill-substitutes to the President in spite of feared Madisonian legislative legerdemain attempting to manipulatively bypass the President’s veto,[2] which is already provided for in the prior clause. See U.S. Const. art. I, § 7, cl. 2 (the Presentment or Veto Clause).


I have good reason to believe Madison erred, or, more likely, modern courts and commentators have seriously misunderstood Madison’s Notes

In a 2005 article in Texas Law Review, I put forward the view of a Commonwealth parliamentarian with whom I corresponded on this question. He is now, most unfortunately, deceased, but he was very well informed with regard to eighteenth century British and colonial parliamentary and administrative (treasury) practices. Indeed, my 2005 research relied extensively on contacts with foreign parliamentary officers, and legislative clerks & secretaries.
Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case].
This (proposed) new meaning for Clause 3 stands our separation of powers jurisprudence on its head. It means the Supreme Court’s opinion in INS v. Chadha[3]—broadly speaking—was fundamentally misconceived. 

Presentment is always necessary, but not bicameralism. As a matter of original public meaning, Clause 3 permits opting out of bicameralism. Congress may opt out of bicameralism where a single house order is first authorized by a prior statute. That single-house order (resolution or vote) has to be (separately) presented to the President (just like a statute), but such a single-house order need not go through bicameralism if it was authorized by a prior statute. Of course, at a deeper level, it means that our interpretive community—judges, legal academics, academics in related fields (government, political science, history, etc), and lawyers generally—have forgotten what a clause of the Constitution meant.

To put it in its most simple terms, legislative vetoes and line item vetoes are constitutional: as a matter of original public meaning. (For what it is worth, since publication, my 2005 paper has been cited more than 50 times.)

Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005).[4]
Professor Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).[5]
Seth Barrett Tillman, The Domain of Constitutional Delegations Under the Orders, Resolutions, and Votes Clause: A Reply to Professor Gary Lawson, 83 Tex. L. Rev. 1389 (2005).[6]





[1] See, e.g., James Madison, Debates in the Federal Convention of 1787, reprinted in 5 Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787, at 109, 431 (Washington, Jonathan Elliot ed., supp. 1845) (recording the Philadelphia Convention’s August 15, 1787 debate); see also, e.g., Secretary William Jackson, Journal of the Federal Convention, in 2 The Records of the Federal Convention of 1787, at 294–296 (Max Farrand ed., 1911) (recording the Philadelphia Convention’s August 15, 1787 motions and votes).
[2] See, e.g., Antonin Scalia, The Legislative Veto: A False Remedy for System Overload, 3 Regulation 19, 20 (1979) (“The purpose [of Article I, Section 7, Clause 3] . . . is to prevent Congress from evading the President’s legislative role . . . by simply acting through measures that are not called ‘bills.’”); Robert J. Spitzer, 112(2) Pol. Sci. Q. 261, 276 (1997) (“Clause 3 was added to avoid a situation in which Congress might seek to avoid presidential review of legislation by giving it some other name.” (quotation marks omitted)); see also, e.g., Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189, 208 (1972) (“Can it be thought that Article I, Section 7, can be evaded by mere nomenclature—by merely calling something a ‘Concurrent’ rather than a ‘Joint’ Resolution?” (emphasis in the original)); cf., e.g., Robert W. Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv. L. Rev. 569, 572–74 (1953).
[3] 462 U.S. 919 (1983) (Burger, C.J.). There was also a cocurrence by Powell, and two dissents, by White and Rehnquist. 

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Tillman's “Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?” now available on SSRN, The New Reform Club (Sept. 28, 2016, 10:40 AM). [Here


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