Which Action Can Congress Not Perform According to the Constitution
Common Estimation
Article I, Section 7
Article I, Section 7 of the Constitution creates certain rules to govern how Congress makes law. Its first Clause—known every bit 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 whatever 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 do, hoping that it would confer the "power of the bag" on the legislative torso near responsive to the people—the House of Representatives. As such, just the House may introduce bills "for raising acquirement," although the Senate is explicitly empowered to amend Firm-originated bills. Any other type of beak may originate in either the Senate or the Business firm.
The Origination Clause was role 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 taxation and tariff bills exclusively to the House of Representatives, where the larger states enjoyed greater representation. Just while the Clause was hotly contested during the Constitutional Convention and the ratification debates, the Senate's ability to amend revenue-raising bills has deprived the Clause of much practical significance.
The Presentment Clause is no such paper tiger. The Clause provides that a pecker can become a police only if, after passage by both Houses of Congress, it is presented to the President. The President and so has ten days either to sign the neb into police force or decline the bill and render it to Congress with an explanation of his or her objections.
If the President rejects the bill, he or she must return it to the Business firm in which it originated. This process is known as a "veto," though the give-and-take does not actually appear in the text of the Constitution. Congress may then modify the bill, responding to the President'due south stated objections, to increase the likelihood of presidential blessing. Alternatively, Congress may override the President's veto if both Houses can pass the bill past at least a two-thirds vote. The beak then becomes police force without further "presentment" to the President.
Matters are more complicated if the President does goose egg past the end of the ten-day window. If Congress is in session, the bill becomes a law—a miracle known every bit "default enactment." If Congress is out of session, however, the President has no place to render a bill that he or she wishes to veto. In those circumstances, the President may effectively veto the bill by taking no activeness. This process, first used by James Madison during an intersession recess in 1812, is known every bit 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 any adjournment count, for example, or just those adjournments that end the legislative session? The Supreme Courtroom 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 bill to the House in which it originated inside the time allowed." Because both Houses had adjourned in the Pocket Veto Case, even though the legislation session was not over, a pocket veto was permissible.
The Court refined that interpretation in Wright 5. United states (1938), ruling that a three-day banishment of just ane Firm of Congress does not permit a pocket veto. For brief adjournments of a single Firm, the Court ruled, the originating Business firm may designate an agent, such as a Secretary or Clerk, to receive a vetoed beak. Modernistic practise is more than fluid than Wright may suggest, nonetheless. Several recent Presidents have purported to pocket veto bills even when the originating House of Congress has designated an agent to receive a veto bulletin.
The tertiary 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 past fashioning a bill as a "resolution" or "order." To avoid that circumvention, the Clause says that whatsoever issue requiring the concurrence of the Firm and the Senate—whatever that issue happens to exist called—must be presented to the President. A congressional announcement of war, for example, comes in the class of a joint resolution. Although it is not denominated a "bill," information technology must exist submitted for presidential blessing.
Not all issues crave presentment, nevertheless. The Clause explicitly exempts questions of adjournment and, under Article V, congressionally proposed amendments to the Constitution are sent to land legislatures for approval, not to the President. More mostly, resolutions that are non meant to become constabulary are not subject to presentment. Congress may, for example, adopt concurrent resolutions setting budgetary goals without seeking presidential approval. The same holds for resolutions that utilize simply to the operation of a particular Business firm, such equally imposing censure on a Firm member or expressing "the mood" of the House. Past the same token, legislative subpoenas are not presented to the president for his approving.
The Supreme Court reinforced the Presentment of Resolutions Clause (and vindicated Madison's prediction) most famously in I.Northward.S. five. Chadha (1983), ruling that it was unconstitutional for Congress to utilise a resolution to overturn an executive action. The Court reasoned that such a "legislative veto" circumvents the presentment procedure and infringes on the President'due south power to execute the laws.
Matters of Fence
Judicial Enforcement of Article I, Section 7
Some of the most urgent debates in ramble constabulary arise when courts are asked to enforce those parts of the Constitution—including Article I, Section 7—that structure how Congress makes law.
Although the point is often overlooked, nearly of the constitutional rules governing code demand no judicial enforcement. The House of Representatives, for example, does not attempt to claim the power to brand a police without Senate involvement. Nor practise the Firm 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 organization that information technology would exist unthinkable to disregard them.
From time to time, nevertheless, complex questions do arise nearly whether Congress and the President take been faithful to the lawmaking process that Article I, Section 7 prescribes. When that happens, the courts may be enlisted to uphold the constitutional design. Courts must then face a hard question: how stringently should they employ the open-ended terms of the Constitution?
Accept, for example, recent litigation over the Affordable Care Act (ACA), which reformed the nation's health-intendance 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 Dwelling Ownership Revenue enhancement Human activity of 2009."
That Firm-originated bill, however, had nothing whatsoever to do with wellness care. The bill became the ACA but when the Senate struck the language of the original bill and replaced it with the text of the health-care reform constabulary. Nothing of the original bill remained.
Another Perspective
This essay is function of a discussion most Article I, Department 7 with Thomas A. Smith, Professor of Police, University of San Diego Schoolhouse of Police force. Read the total give-and-take here.
Subsequently the ACA'southward adoption, lawsuits were filed arguing that this "beat neb" procedure violated the Origination Clause. The challengers had a point. The Origination Clause is supposed to give the House of Representatives the first say in whether and when to exercise the power to tax. Although the Senate tin can "propose and agree with Amendments as on other bills," allowing the Senate to completely replace a Business firm-originated beak would effectively strip the House of its gatekeeping function. The challengers therefore asked the courts to invalidate the ACA in its entirety.
Wisely, even so, the courts have unanimously turned bated the constitutional challenge. The shell beak procedure was not born with the ACA; information technology is, in fact, a procedure that the Senate has used for 200 years. And the courts have never felt it necessary to examine whether Senate amendments are "germane" to a Business firm-originated pecker. In the 1911 case of Flintstone five. Stone Tracy Company, for example, the Supreme Court affirmed the constitutionality of a Senate amendment that substituted a corporate tax for a Business firm-originated inheritance taxation.
In effect, the courts accept deferred to Congress's longstanding exercise, even though the exercise left the Origination Clause with little piece of work to practice. Notwithstanding the Democracy has not fallen. Over time, the discussion 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 Amendment, state legislatures selected the Senators that would represent the states in Congress. Today, both Houses can credibly claim to speak straight for the people, reducing the need for the House to retain any special control over bills to raise revenue.
A movement is itinerant, still, to use constitutional litigation every bit a sword to undo what Congress has created. Couched in the rhetoric of restoring the Constitution'due south "original meaning," the motion's goal is to clip Congress's wings and undo its handiwork. The lawsuits against the ACA exemplify that movement.
But the Constitution'southward meaning was not stock-still in stone at the moment of its ratification. The Constitution has instead accrued meaning from history, practise, and an evolving sense of its broader purposes. The Origination Clause may exercise picayune work in the modern era, just that's OK. Times change; so too does the way we read the Constitution.
To exist certain, on rare occasions, judicial intervention to enforce Article I, Section vii may well be necessary. In INS v. Chadha (1983), for example, the Supreme Court was rightly troubled at how a one-firm veto over executive-branch action might enable Congress to retain control 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 volition of the people without acceptable justification. When information technology comes to the Origination Clause, the courts have and so far resisted the blandishments of those who seek to invalidate Congress'due south handiwork in the name of restoring the Constitution's original pregnant. They should continue to do and so.
Matters of Debate
The Futurity of Article I, Department 7
One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known every bit the Presentment of Resolutions Clause, or the Order, 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 translate information technology 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 every bit a "resolution" and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman's work revealed that the Framers' intent was quite likely otherwise.
The pop interpretation of the ORV Clause comes from James Madison's business relationship of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase "or resolve" later on "bill," achieving the aforementioned consequence every bit that popularly attributed to the ORV Clause. Though Madison'due south proposal was rejected, Virginia consul Edmund Randolph successfully proposed the ORV Clause the following mean solar day. According to Madison, the ORV Clause was merely a "new form" of his failed subpoena. Equally practically the only surviving commentary, Madison's oddly simplistic account of the ORV Clause was accustomed uncritically by the Supreme Court and legal scholars.
What Tillman uncovered was that Madison's 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 too subjects to presentment certain legislative actions non addressed in the Presentment Clause. These actions include a range of single-Firm actions authorized by prior, bicameral legislation. That Congress may legislatively qualify a single Firm to human action lonely contradicts more than 2 centuries of legal scholarship and Supreme Courtroom decisions—almost notably, INS five. Chadha (1983). In Chadha, the Courtroom struck down the "legislative veto" past the House of Representatives for failing to comply with the principle of bicameralism.
Tillman's findings also neatly resolved an otherwise puzzling Supreme Court decision from 1798. In Hollingsworth v. Virginia, the Court ruled in a cursory opinion that Congress need not take presented the Eleventh Amendment to President Washington for his approving. Subsequent decisions have interpreted the belongings to hateful simply that constitutional amendment resolutions are exempt from the presentment requirement. Nether Tillman's estimation, still, the Hollingsworth mystery is solved: the ORV Clause requires that an social club, resolution, or vote must exist presented to the President but if it is authorized by a prior statute ("to which the Concurrence of the Senate and Firm or Representatives may be necessary . . . "). Because Congress does non rely on whatever statutory dominance when it passes ramble amendments, the ORV Clause does not apply, and Congress thus need non nowadays constitutional subpoena resolutions to the President.
Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may delegate say-so to unmarried Houses or even unmarried congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to practise just that. Though Lawson generally agreed with Tillman's interpretation of the ORV Clause, he institute that there probable exists only one category of legislative activity to which the ORV Clause could apply: the issuance of legislative subpoenas.
Another Perspective
This essay is office of a word about Article I, Department 7 with Nicholas Bagley, Professor of Constabulary, The Academy of Michigan Law Schoolhouse. Read the full discussion here.
According to Lawson's reading of the Constitution, Congress may not consul legislative dominance simply to anyone—not to the President, nor the federal courts, nor even itself. The ORV Clause thus cannot crave presentment for any actions made past a single Business firm or committee pursuant to delegated legislative authority, because such delegation is constitutionally impermissible. Further, every bit Lawson interprets the Presentment Clause, the just type of legislation that can get a law is a bill. The ORV Clause, yet, alludes to an guild, resolution, or vote that "shall have Effect" upon blessing of the President or passage by ii-thirds of the Senate and the House. If only a pecker may become a law, Lawson asks, then how else may an order, resolution, or vote "take Upshot"? His respond is that Congress, under the say-so of the Necessary and Proper Clause, may enact legislation authorizing each House to issue subpoenas.
While the Constitution grants neither House of Congress the power to upshot subpoenas, a police force authorizing the issuance of subpoenas past individual Houses could exist valid under the Necessary and Proper Clause, which allows Congress "to make all laws which shall be necessary and proper for conveying into Execution" powers elsewhere granted to the corresponding Houses. As Lawson allows, the power to effect subpoenas may be necessary and proper for carrying into execution the impeachment powers the Constitution grants to each of the Houses. Though it could not go a police, a legislative subpoena would "take Effect" by compelling testimony in an impeachment hearing. In exercise, then, the ORV Clause would require that earlier any single House issues a subpoena on the authority of a prior statutory say-so, the subpoena be presented to the President for his approval or veto, just as was the prior legislation that authorized the single-Business firm subpoena.
The Tillman-Lawson assay may strike one as excessively technical, but in this as in many other parts of our Constitution, the devil is in the details. The Supreme Courtroom might revisit Chadha, and when it does, these scholars' arguments may suddenly take on the relevance of living, and contested, law.
Farther Reading:
Seth Barrett Tillman, A Textualist Defense of Article I, Department vii, Clause three: Why Hollingsworth 5. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005).
Gary Lawson, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. Fifty. Rev. 1373 (2005).
Source: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/766
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