Everything you say can and will be used against you.

Sunday, September 25, 2016

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 Courteven a Supreme Court with a ninth Justice appointed by Obama, Clinton, or Trumpis 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 requestbut we no longer live in usual times.  

Thank you.  


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] 

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