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. 

[4] See http://ssrn.com/abstract=475204.

[5] See http://ssrn.com/abstract=556789.

[6] See http://ssrn.com/abstract=658003. 

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] 

Tillman's "Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?" now available on SSRN

Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34 Irish Law Times 210–12 (2016) [http://ssrn.com/abstract=2816458] 

On October 4, 2013, Ireland held a national referendum to create an intermediate court of appeal. The referendum passed, and the Court of Appeal went into operation on October 28, 2014. On July 12, 2016, the Courts Service published its 2015 Annual Report. That report provides statistics in regard to the Court of Appeal’s first complete calendar year of operation. We can now ask the question: Has the Irish Court of Appeal successfully dealt with the judicial backlog of appellate cases which it was created to address?

Seth

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

My prior post: Seth Barrett Tillman, Extract from Speech on the Royal Titles Bill, 3 March 1953, The New Reform Club (Sept. 27, 2016, 5:14 AM). [Here] 

Extract from Speech on the Royal Titles Bill, 3 March 1953

I come now to the second major alteration which will be made by the eventual use of the Royal Prerogative – the suppression of the word ‘British’ from the description both of Her Majesty’s territories outside the United Kingdom and of the Commonwealth. Incidentally, and as a minor by-product, this suppression of our nationality has resulted in what is really nonsense. Strictly speaking, to describe the Queen as Queen of the United Kingdom and ‘Her other Realms and Territories’ is meaningless. We describe a monarch by designating the territory of which he is monarch. To say that he is monarch of a certain territory and his other realms and territories is as good as to say that he is king of his kingdom. We have perpetrated a solecism in the title we are proposing to attach to our Sovereign and we have done so out of what might almost be called an abject desire to eliminate the expression ‘British’. The same desire has been felt – though not by any means throughout the British Commonwealth – to eliminate this word before the term ‘Commonwealth’. I noticed that the Leader of the Opposition in Australia said that he thought the time had come to change the description of the Commonwealth in the Statute of Westminster as the ‘British Commonwealth of Nations’ into the ‘British Commonwealth’.

Why is it, then, that we are so anxious, in the description of our own Monarch, in a title for use in this country, to eliminate any reference to the seat, the focus and the origin of this vast aggregation of territories? Why is it that this ‘teeming womb of royal Kings’, as the dying Gaunt called it, wishes now to be anonymous?

When we come to the following part of the title we find the reason. The history of the term ‘Head of the Commonwealth’ is not a difficult one to trace. I hope I may be forgiven if I do so very briefly. The British Nationality Act 1948 removed the status of ‘subject of the King’ as the basis of British nationality, and substituted for allegiance to the Crown the concept of a number – I think it was nine – of separate citizenships combined together by statute. The British Nationality Act 1948 thus brought about an immense constitutional revolution, an entire alteration of the basis of our subjecthood and nationality, and since the fact of allegiance to the Crown was the uniting element of the whole Empire and Commonwealth it brought about a corresponding revolution in the nature of the unity of Her Majesty’s dominions.

The consequence of that Act immediately followed. If the British dominions were not those territories which acknowledged the Queen, but were an aggregation of separate countries enumerated in a statute, it would be possible not only to add or to subtract territories, but for any of those territories to throw off their allegiance without any consequential result. That was, in fact, what happened.

In the following year, India declared its intention to renounce its allegiance to the Crown and become a republic. Because of that change in the whole basis of British nationality, the decision did not involve the consequences which would have followed as little as a year before. The declaration of the Prime Ministers of 28th April, 1949, included the following passage:

‘The Government of India have declared and affirmed India’s desire to continue with her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of those independent member nations and as such the Head of the Commonwealth.’

It was accordingly enacted by the India (Consequential Provision) Act 1949, that the law of this country should continue to apply to India as it would have done if India had not renounced its allegiance to the Crown. The result of that is, as we have found in a queer way in the only definition of the term ‘Commonwealth’ on the Statute Book – it occurs in one of the sections of the Finance Bill 1950, because a Member of the then Opposition put down an Amendment to draw attention to the omission – that the Commonwealth consists of ‘Her Majesty’s dominions and India’.

The status of India resulting from these changes and declarations is an ungraspable one in law or in fact. The Indian Government say that they recognize the Queen as the Head of the Commonwealth. Well, I recognize the Rt. Hon. Member for Walthamstow West [Mr. Atlee] as leader of the Opposition, but that does not make me a Member of the Opposition. When we endeavour to ascertain into what relationship with Her Majesty’s dominions this recognition of the Crown as Head of the Commonwealth has brought India, we find ourselves baulked. It was intended that this relationship should in fact be uninterpretable. It is, therefore, necessary to inquire what is the minimum content which entitles us to recognize unity at all, and then to ask whether that necessary minimum content is applicable in the case of India.

I assert that the essence of unity, whether it be in a close-knit country or in a loosely-knit federation, is that all the parts recognize that in certain circumstances they would sacrifice themselves to the interests of the whole. It is this instinctive recognition of being parts of a whole, which means that in certain circumstances individual, local, partial interests would be sacrificed to the general interest, that constitutes unity. Unless there is some such instinctive, deliberate determination, there is no unity. There may be an alliance. We may have alliance between two sovereign Powers for the pursuit of common interests for a particular or for an undefined period; but that is not unity. That is not the maintenance or the creation of any such entity as we imply by the name ‘Empire’ or ‘Commonwealth’. I deny that there is that element, that minimum basic element, of unity binding India to Her Majesty’s dominions.

I deny that there is present, in that former part of Her Majesty’s dominions which has deliberately cast off allegiance to her, that minimum, basic, instinctive recognition of belonging to a greater whole which involves the ultimate consequence in certain circumstances of self-sacrifice in the interests of the whole.

I therefore say that this formula ‘Head of the Commonwealth’ and the declaration in which it is inscribed, are essentially a sham. They are essentially something which we have invented to blind ourselves to the reality of the position. Although the changes which will be made in the royal titles as the result of this Bill are greatly repugnant to me, if they were changes which were demanded by those who in many wars had fought with this country, by nations who maintained an allegiance to the Crown, and who signified a desire to be in the future as we were in the past; if it were our friends who had come to us and said: ‘We want this’, I would say: ‘Let it go. Let us admit the divisibility of the Crown. Let us sink into anonymity and cancel the word “British” from our titles. If they like the conundrum “Head of the Commonwealth” in the royal style, let it be there.’

However, the underlying evil of this is that we are doing it for the sake not of our friends but of those who are not our friends. We are doing this for the sake of those to whom the very names ‘Britain’ and ‘British’ are repugnant.

Mr. Nicholson (Farnham): I beg my Hon Friend to measure his words and to remember the vast sacrifices and the oceans of blood that India has poured out in the past, and to recognize the deep affection and feeling that exist throughout India towards this country.

Mr. Powell: I, who have had the advantage and privilege of serving with the Indian Army in the War, am not likely to be unmindful of it; but it was an army which owed allegiance to the Crown, an enthusiastic allegiance, which was its very principle of existence and its binding force. That allegiance, for good or for evil, has been cast off, with all that follows.

Now, I am not under any delusion that my words on this occasion can have any practical effect. None the less, they are not, perhaps, necessarily in vain. We in this House, whether we are the humblest of the backbenchers or my Rt. Hon. Friend the First Lord of the Treasury himself [Mr. Churchill], are in ourselves, in our individual capacities, quite unimportant. We have a meaning in this place only in so far as in our time and generation we represent great principles, great elements in the national life, great strands in our society and national being.

Sometimes, elements which are essential to the life, growth and existence of Britain seem for a time to be cast into shadow, obscured, and even destroyed. Yet in the past they have remained alive; they have survived; they have come to the surface again, and they have been the means of a new flowering, which no one had suspected. It is because I believe that, in a sense, for a brief moment, I represent and speak for an indispensable element in the British Constitution and in British life that I have spoken – I pray, not entirely in vain. 

Seth Barrett Tillman

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

Seth Barrett Tillman, Response to Liz O'Donnell's—We must embrace desperate people as Europe fails those fleeing war, The New Reform Club (Sept. 25, 2016, 12:13 PM). [Here] 

"The System Worked"

Consider a few stories, ranging various subjects of ideological interest, in which members of one ideology forgo debate and simply file lawsuits against their ideological adversaries. Notice how the aggressors in these contests always win -- even when they merely settle, and even when they "lose."

Via Mary Eberstadt:

"A few years ago, for example, under pressure by an atheist group, the U.S. Air Force suspended a course in just-war theory that had been taught for twenty years to officers at Vandenberg Air Force Base, in California—the only place in the United States from which intercontinental ballistic missiles and certain space satellites can be launched.24 Like much else in the Judeo-Christian scholastic tradition, just-war theory has been around far longer than the United States itself. It is a body of philosophical thought dedicated to the conditions of justifiable conflict, developed in scholastic detail from Augustine of Hippo to Thomas Aquinas’s systematic exegesis in the 1200s, and running through centuries of other commentary up to the present day.25 In banning the course, the Air Force promised to look into non-religious “alternatives.” Yet there is no secular equivalent of just-war theory—any more than there is a secular equivalent of Palestrina; or Renaissance biblical paintings; or iconography; or Gothic cathedral design; or other philosophical and artistic creations left behind by believers across Western history."

But lawsuit avoided, accepting ignorance in its stead. "The system worked."

_____

Another via Eberstadt (also here):

"As part of a community service project, children in these schools [SkyView Academy in Colorado and East Point Academy in South Carolina] helped to collect donations and assemble shoe boxes stuffed with hygiene items and gifts to be donated to Operation Christmas Child, an evangelical relief effort that gives impoverished children gifts during the holiday season. And because of that, both schools came to be targeted by the [American Humanist Association]. Now, reasonable people might just assume that giving hygiene products and toys to people who have none might trump ideological spite against Christians; but some people do not understand the depth of secularist animosity. The atheists argued that the toys were “essentially a bribe, expressly used to pressure desperately poor children living in developing countries to convert to Christianity.”24 And so, faced with the threat of being forced to spend prodigious sums on lawyers, both schools ceased participating in the program."

Tough break for the tots, but lawsuit avoided. "The system worked."

______

Mark Steyn on his magazine's defense against the Islam PC lobby:

"After I saw off the Islamic enforcers in my own country, their frontman crowed to The Canadian Arab News that, even though the Canadian Islamic Congress had struck out in three different jurisdictions in their attempt to criminalize my writing about Islam, the lawsuits had cost my magazine (he boasted) two million bucks, and thereby "attained our strategic objective — to increase the cost of publishing anti-Islamic material."

Still, lawsuit defeated. So "the system worked."

Steyn continues:

"Just to confirm that, here's my friend Barbara Amiel writing in the wake of the Charlie Hebdo bloodbath:

"When in 2011 I had the one and only column of my 37 years of writing for Maclean's spiked, it was on Dutch anti-Muslim immigration politician Geert Wilders. I thought it was pretty milquetoast writing since I was automatically self-censoring and pulling my punches but I really couldn't blame Maclean's. They were suffering from battle fatigue: nothing is more enervating and time-consuming than filling out the endless details and forms that human-rights complaints require. Not to mention the legal fees. "You'd win," said one of my editors. "We know that. But we just can't go there again." ""

But lawsuit avoided, and oh! but there are still such sensational thing to publish in a magazine. "The system worked."

_______

Earlier this year, Politico reported the news of a coming DOJ investigation against David Daleiden and the group that busted Planned Parenthood's selling of aborted baby parts:

JUSTICE TO PROBE CENTER FOR MEDICAL PROGRESS — While congressional committees investigate Planned Parenthood’s practices, the Justice Department agreed to look into whether the group that released the sting videos obtained the footage legally. In response to a request by House Democrats, Attorney General Loretta Lynch said Wednesday afternoon that Justice would “review all of the information and determine what the appropriate steps moving forward would be.”

Then:

"In April, pro-abortion California Attorney General Kamala Harris stole unreleased video footage concerning Planned Parenthood from Daleiden’s home. California authorities seized a laptop and hard drives containing the video footage collected during Daleiden’s 3-year investigation of Planned Parenthood’s involvement in the illegal sale of aborted baby remains, according to a written statement made by Life Legal Defense Foundation, which is helping to defend Daleiden.

. . . .

"Planned Parenthood has donated $81,000 to Harris and, because of the massive conflict of interest, pro-life groups are calling for her resignation. Harris also was endorsed by the pro-abortion National Organization for Women. NOW describes her as a “longtime, vocal supporter of Planned Parenthood” who promised to investigate CMP and fight for taxpayer funding of the abortion business." 

"But now the "Harris County District Attorney’s office on Tuesday dismissed all charges against Daleiden and Sandra Merritt, the pro-life adovcate who worked with him on the groundbreaking videos [exposing Planned Parenthood's sale of aborted baby parts]."

So Daleiden has been vindicated of charges against his worked critical of Planned Parenthood, even if he was kept from continuing his work for several months. "The system worked."

________

ACLU announces it will file a federal lawsuit against Trinity Health Corporation, a Catholic health organization, for refusing to perform abortions. A spokesperson for Trinity Health said in a statement: 

“A federal court already dismissed a similar ACLU claim, and we will seek dismissal of this suit for the same reason. The Ethical and Religious Directives are entirely consistent with high-quality health care, and our clinicians continue to provide superb care throughout the communities we serve. We are proud that more than 25,000 licensed physicians work directly with our health system and share our commitment to people-centered care.”

So long as Catholic hospitals can continue to pay attorneys to successfully dismiss baseless lawsuits trying to bring them in line with the pro-abortion-rights agenda -- ignoring, of course, the other life-saving good that could be done with that money -- "the system worked."

________

On the climate front, the Weekly Standard reported: Senator Whitehouse: Use RICO laws to prosecute climate skeptics. Excerpts:

"Obviously, there’s a lot of money hanging in the balance with regard to energy policy. But when does coordinating “a wide range of activities, including political lobbying, contributions to political candidates, and a large number of communication and media efforts” go from basic First Amendment expression to racketeering? The tobacco analogy is inappropriate in regards to how direct the link between smoking and cancer is. Even among those who do agree that global warming is a problem, there’s a tremendously wide variety of opinions about the practical effects. Who gets to decide whether someone is “downplaying the role of carbon emissions in climate change” relative to the consensus? If message coordination and lobbying on controversial scientific and political issues can be declared racketeering because the people funding such efforts have a financial interest in a predetermined outcome, we’re just going to have to outlaw everything that goes on in Washington, D.C.

"In February, Rep. Raul Grijalva, D-Ariz., attempted a McCarthyite witch hunt against climate scientists he found disagreeable. And Sheldon Whitehouse is sitting U.S. Senator. He’s now publicly encouraging legal persecution of people who conduct scientific research and/or those that have opinions about it he disagrees with. He wrote this opinion in the Washington Post on Friday, and no one much noticed or batted an eye at the consequences of what he’s advocating here. Such calls for draconian restrictions on speech are becoming alarmingly regular. And if more people don’t start speaking out against it, sooner or later we’re actually going to end up in a place where people are being hauled into court for having an opinion that differs from politicians such as Senator Whitehouse."

Conservative media outlets were highly critical of Sen. Whitehouse and Rep. Grijalva's plan, and no lawsuit has been brought. Yet. And valuating the cost of chilled speech and inhibited scientific inquiry is about as much guesswork as climate science anyway. So "the system worked."

___________

Stalin's secret police chief, Lavrenti Beria, infamously said: "Show me the man and I'll find you the crime." Lawmakers and judges hasten to fill the law books with new legal theories to suit every slight, every grievance, every disturbance. A lawsuit in every pot, a cause of action in every garage.

The legal system, as currently emerging, will put western liberalism -- free exercise, free speech, free inquiry -- on the tines of a Morton's Fork: give in, or join an endless, pitiless culture war. The abusers of that system understand the marketplace-of-ideas metaphor: they're pricing ideas right out of the market.

The system, for this purpose, works very, very well. 

Response to Liz O'Donnell's—We must embrace desperate people as Europe fails those fleeing war

Letters to the Editor

Re:    Liz O’Donnell, ‘We must embrace desperate people as Europe fails those fleeing war’ The Irish Independent (Sept. 23, 2016, 2:30 AM). [http://tinyurl.com/h7fch9u]       

In your September 23 issue, your columnist, Liz O’Donnell, wrote: “This [situation] is a total denial of refugee rights under international law. What dispute can there possibly be about the status of civilians fleeing the six-year-long Syrian war? There is no dispute.” Actually, there is some dispute. Several pages earlier, in the very same issue of The Irish Independent, your foreign correspondent wrote a news article titled: Refugee (16) plotted bomb attack for Isil. (See http://shr.gs/0m4jthJ.) There is no common, coherent narrative to be drawn from these two articles: refugees as the endangered, and refugees as the danger.

All that begs the question if some of these people coming to Europe’s shores are what they claim to be. Are they escaping “refugees”? Or are some something else—genocidaires, war criminals, partisans in naked religious strife, and other irregular combatants—who are trying to flee their own homelands (perhaps, which they themselves helped to destroy) before justice and/or retribution catch up with them? Of course, if that is who they are, they are bringing their rather unique skill set with them. And they are bringing it—here—and to—us.

Seth Barrett Tillman

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

Seth Barrett Tillman, Legislative Veto & Line Item Veto—Overturning INS v Chadha on Originalist Grounds, The New Reform Club (Sept. 25, 2016, 5:49 AM). [here]

Legislative Veto & Line Item Veto—Overturning INS v Chadha on Originalist Grounds

Dear Professor,

I appreciate your citing my work on past occasions.  I wanted to mention to you that an entry on Article I, Section 7 on The Interactive Constitution will go live in the next few weeks, perhaps as early as the next few days. I am not the author of that entry, but I can tell you that the author is an academic with a very good reputation in originalist circles. I also know that the author is going to cite my 2005 Texas Law Review paper and exchange with Professor Gary S. Lawson (Boston University) on the original public meaning of U.S. Constitution Article 1, Section 7, Clause 3.** See 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), http://ssrn.com/abstract=475204; 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), http://ssrn.com/abstract=556789; 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), http://ssrn.com/abstract=658003.  

Can I interest you in writing a post, especially prior to the election, citing the new entry on The Interactive Constitution, and pointing out the possibilities and benefits of a revived legislative veto / line item veto project?

For what it is worth, I think the current configuration of the Supreme Court—even a Supreme Court with a ninth Justice appointed by Obama, Clinton, or Trump—is likely to uphold such a mechanism. Justice Breyer would lead a contingent of (at least) 4 liberals/pragmatists supporting such a position (much as Justice White dissented in Chadha). If any one (or more) of the conservative/originalist Justices sign that bill on to such a judicial decision, perhaps based on the originalist reasoning put forth in my 2005 Texas paper and exchange with Lawson, that makes a majority of at least 5.  

A new election, a new Congress, and a new President poses an opportunity to change things, sometimes for the better. So let me invite you to use your widely-read blog in this way. I am not sure if you support the REINS Act, but I don’t think such a post, as I suggest here, would get in the way of that project (assuming it is not already moribund).

I know this is an unusual request—but we no longer live in usual times.  

Thank you.  

Seth  

I plan to post this letter (in anonymized form) on my blog: The New Reform Club. 

**This clause is also known as: the Second Presentment Clause; the Residual Presentment Clause; the Presentment of Resolutions Clause; and the Orders, Resolutions, and Votes Clause.

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

Seth Barrett Tillman, Hola Camp Massacre Speech, House of Commons Debate, 27 July 1959, The New Reform Club (Sept. 23, 2016, 7:18 AM). [Here] 

Enoch Powell’s Hola Camp Massacre Speech, U.K. House of Commons Debate: July 1959

“Those documents, that evidence, prove to me conclusively that the responsibility here lies not only with Sullivan and Lewis, but at a level above them. It lies with those to whom they actually appealed for help, whom they warned of the danger, from whom they received indeed a decision which transferred responsibility upwards, but no other help or guidance. That responsibility, transcending Sullivan and Lewis, has not been recognised; but it cannot be ignored, it cannot be burked, it will not just evaporate into thin air if we do nothing about it.

I am as certain of this as I am of anything, that my right honourable Friend the Secretary of State from the beginning to the end of this affair is without any jot or tittle of blame for what happened in Kenya, that he could not be expected to know, that it could not be within the administrative conventions that these matters should be brought to his attention before or during the execution. When I say my right honourable Friend was in this matter utterly and completely blameless, that is of a piece with his administration of his high office generally, which has been the greatest exercise of the office of Colonial Secretary in modern times. It is in the name of that record, it is in the name of his personal blamelessness, that I beg of him to ensure that the responsibility is recognised and carried where it properly belongs, and is seen to belong.

I have heard it suggested that there were circumstances surrounding this affair at Hola Camp which, it is argued, might justify the passing over of this responsibility—which might justify one in saying, “Well, of course, strictly speaking, that is quite correct; but then here there were special circumstances.”

It has been said—and it is a fact—that these eleven men were the lowest of the low; sub-human was the word which one of my honourable Friends used. So be it. But that cannot be relevant to the acceptance of responsibility for their death. I know that it does not enter into my right honourable Friend’s mind that it could be relevant, because it would be completely inconsistent with his whole policy of rehabilitation, which is based upon the assumption that whatever the present state of these men, they can be reclaimed. No one who supports the policy of rehabilitation can argue from the character and condition of these men that responsibility for their death should be different from the responsibility for anyone else’s death. In general, I would say that it is a fearful doctrine, which must recoil upon the heads of those who pronounce it, to stand in judgment on a fellow human-being and to say, “Because he was such-and-such, therefore the consequences which would otherwise flow from his death shall not flow.”

It is then said that the morale of the Prison Service, the morale of the whole Colonial Service, is above all important and that whatever we do, whatever we urge, whatever we say, should have regard to that morale. “Amen” say I. But is it for the morale of the Prison Service that those who executed a policy should suffer—whether inadequately or not is another question—and those who authorised it, those to whom they appealed, should be passed over? I cannot believe that that supports the morale of a service.

Going on beyond that, my honourable Friend the Member for Leicester, South-East (Mr. Peel) reminded the House how proud the Colonial Service is of the integrity of its administration and its record. Nothing could be more damaging to the morale of such a service than that there should be a breath or a blemish left upon it. No, Sir; that argument from the morale of the Prison Service and the Colonial Service stands on its head if what we mean is that therefore the consequences of responsibility should not follow in this case as they would in any other similar case.

Finally it is argued that this is Africa, that things are different there. Of course they are. The question is whether the difference between things there and here is such that the taking of responsibility there and here should be upon different principles. We claim that it is our object—and this is something which unites both sides of the House—to leave representative institutions behind us wherever we give up our rule. I cannot imagine that it is a way to plant representative institutions to be seen to shirk the acceptance and the assignment of responsibility, which is the very essence of responsible Government.

Nor can we ourselves pick and choose where and in what parts of the world we shall use this or that kind of standard. We cannot say, “We will have African standards in Africa, Asian standards in Asia and perhaps British standards here at home.” We have not that choice to make. We must be consistent with ourselves everywhere. All Government, all influence of man upon man, rests upon opinion. What we can do in Africa, where we still govern and where we no longer govern, depends upon the opinion which is entertained of the way in which this country acts and the way in which Englishmen act. We cannot, we dare not, in Africa of all places, fall below our own highest standards in the acceptance of responsibility.”

EP

Denis Healy, a member of the UK parliament from 1952 to 1992, later said this speech was “the greatest parliamentary speech I ever heard ... it had all the moral passion and rhetorical force of Demosthenes.” 

Seth Barrett Tillman, ‘Enoch Powell’s Hola Camp Massacre Speech, U.K. House of Commons Debate: July 1959,’ New Reform Club (Sept. 23, 2016, 7:18 AM), <https://tinyurl.com/4w7n5ruy>; 

[reported here: http://hansard.millbanksystems.com/commons/1959/jul/27/hola-camp-kenya-report] [audio by actor: https://www.youtube.com/watch?v=sk3pDBzr3Po] 

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

Seth Barrett Tillman, Some Thoughts on Professor Garrett Epps’ “Trumpism Is the Symptom of a Gravely Ill Constitution”, The New Reform Club (Sept. 21, 2016, 2:04 PM).