Presentation of Resolutions

The purpose of clause 3, the Orders, Resolutions, and Votes Clause (ORV Clause), is not readily apparent. For years it was assumed that the Framers inserted the clause to prevent Congress from evading the veto clause by designating as something other than a bill measures intended to take effect as laws.514 Why a separate clause was needed for this purpose has not been explained. Recent scholarship presents a different possible explanation for the ORV Clause— that it was designed to authorize delegation of lawmaking power to a single House, subject to presentment, veto, and possible two-House veto override.515 If construed literally, the clause could have bogged down the intermediate stages of the legislative process, and Congress made practical adjustments. At the request of the Senate, the Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted over the years. Briefly, it was shown that the word “necessary” in the clause had come to refer to the necessity for law-making; that is, any “order, resolution, or vote” must be submitted if it is to have the force of law. But “votes” taken in either House preliminary to the final passage of legislation need not be submitted to the other House or to the President, nor must concurrent resolutions merely expressing the views or “sense” of the Congress.516

Although the ORV Clause excepts only adjournment resolutions and makes no explicit reference to resolutions proposing constitutional amendments, the practice and understanding, beginning with the Bill of Rights, has been that resolutions proposing constitutional amendments need not be presented to the President for veto or approval. Hollingsworth v. Virginia,517 in which the Court rejected a challenge to the validity of the Eleventh Amendment based on the assertion that it had not been presented to the President, is usually cited for the proposition that presentation of constitutional amendment resolutions is not required.518

The Legislative Veto.

Beginning in the 1930s, the concur- rent resolution (as well as the simple resolution) was put to a new use—serving as the instrument to terminate powers delegated to the Chief Executive or to disapprove particular exercises of power by him or his agents. The “legislative veto” or “congressional veto” was first developed in context of the delegation to the Executive of power to reorganize governmental agencies,519 and was really furthered by the necessities of providing for national security and foreign affairs immediately prior to and during World War II.520 The proliferation of “congressional veto” provisions in legislation over the years raised a series of interrelated constitutional questions.521 Congress until relatively recently had applied the veto provisions to some action taken by the President or another executive officer—such as a reorganization of an agency, the lowering or raising of tariff rates, the disposal of federal property—then began expanding the device to give itself a negative over regulations issued by executive branch agencies, and proposals were made to give Congress a negative over all regulations issued by executive branch independent agencies.522

In INS v. Chadha,523 the Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Art. I, §§ 1 and 7, and the presentment provisions of § 7, cl. 2 and 3. The provision in question was § 244(c)(2) of the Immigration and Nationality Act, which authorized either house of Congress by resolution to veto the decision of the Attorney General to allow a particular deportable alien to remain in the country. The Court’s analysis of the presentment issue made clear, however, that two-House veto provisions, despite their compliance with bicameralism, and committee veto provisions suffer the same constitutional infirmity.524 In the words of dissenting Justice White, the Court in Chadha “sound[ed] the death knell for nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto.’ ”525

In determining that veto of the Attorney General’s decision on suspension of deportation was a legislative action requiring presentment to the President for approval or veto, the Court set forth the general standard. “Whether actions taken by either House are, in law and in fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative in its character and effect.’ [T]he action taken here . . . was essentially legislative,” the Court concluded, because “it had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch.”526

The other major component of the Court’s reasoning in Chadha stemmed from its reading of the Constitution as making only “explicit and unambiguous” exceptions to the bicameralism and presentment requirements. Thus the House alone was given power of impeachment, and the Senate alone was given power to convict upon impeachment, to advise and consent to executive appointments, and to advise and consent to treaties; similarly, the Congress may propose a constitutional amendment without the President’s approval, and each House is given autonomy over certain “internal matters,” e.g., judging the qualifications of its members. By implication then, exercises of legislative power not falling within any of these “narrow, explicit, and separately justified” exceptions must conform to the prescribed procedures: “passage by a majority of both Houses and presentment to the President.”527

The breadth of the Court’s ruling in Chadha was evidenced in its 1986 decision in Bowsher v. Synar.528 Among that case’s rationales for holding the Deficit Control Act unconstitutional was that Congress had, in effect, retained control over executive action in a manner resembling a congressional veto. “[A]s Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly—by passing new legislation.”529 Congress had offended this principle by retaining removal authority over the Comptroller General, charged with executing important aspects of the Budget Act.

That Chadha does not spell the end of some forms of the legislative veto is evident from events since 1983, which have seen the enactment of various devices, such as “report and wait” provisions and requirements for various consultative steps before action may be undertaken. But the decision has stymied the efforts in Congress to confine the discretion it confers through delegation by giving it a method of reviewing and if necessary voiding actions and rules promulgated after delegations.

The Line Item Veto.

For more than a century, United States Presidents had sought the authority to strike out of appropriations bills particular items—to veto “line items” of money bills and sometimes legislative measures as well. Finally, in 1996, Congress approved and the President signed the Line Item Veto Act.530 The law empowered the President, within five days of signing a bill, to “cancel in whole” spending items and targeted, defined tax benefits. In acting on this authority, the President was to determine that the cancellation of each item would “(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest.”531 In Clinton v. City of New York,532 the Court held the Act unconstitutional because it did not comply with the Presentment Clause.

Although Congress in passing the Act considered itself to have been delegating power,533 and although the dissenting Justices would have upheld the Act as a valid delegation,534 the Court instead analyzed the statute under the Presentment Clause. In the Court’s view, the two bills from which the President subsequently struck items became law the moment the President signed them. His cancellations thus amended and in part repealed the two federal laws. Under its most immediate precedent, the Court continued, statutory repeals must conform to the Presentment Clause’s “single, finely wrought and exhaustively considered, procedure” for enacting or repealing a law.535 In no respect did the procedures in the Act comply with that clause, and in no way could they. The President was acting in a legislative capacity, altering a law in the manner prescribed, and legislation must, in the way Congress acted, be bicameral and be presented to the President after Congress acted. Nothing in the Constitution authorized the President to amend or repeal a statute unilaterally, and the Court could construe both constitutional silence and the historical practice over 200 years as “an express prohibition” of the President’s action.536

Footnotes

514
See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed. 1937), 301–302, 304–305; 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 889, at 335 (1833). [Back to text]
515
Seth Barrett Tillman, A Textualist Defense of Art. 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). [Back to text]
516
S. REP. NO. 1335, 54th Congress, 2d Sess.; 4 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 3483 (1907). [Back to text]
517
3 U.S. (3 Dall.) 378 (1798). [Back to text]
518
Although Hollingsworth did not necessarily so hold (see Tillman, supra), the Court has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229 (1920) (in Hollingsworth “this court settled that the submission of a constitutional amendment did not require the action of the President”); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in Hollingsworth the Court “held Presidential approval was unnecessary for a proposed constitutional amendment”). [Back to text]
519
Act of June 30, 1932, § 407, 47 Stat. 414. [Back to text]
520
See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January 30, 1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor Disputes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect. [Back to text]
521
From 1932 to 1983, by one count, nearly 300 separate provisions giving Congress power to halt or overturn executive action had been passed in nearly 200 acts; substantially more than half of these had been enacted since 1970. A partial listing was included in The Constitution, Jefferson’s Manual and Rules of the House of Representatives, H. Doc. No. 96–398, 96th Congress, 2d Sess. (1981), 731–922. A more up-to-date listing, in light of the Supreme Court’s ruling, is contained in H. Doc. No. 101–256, 101st Cong., 2d sess. (1991), 907–1054. Justice White’s dissent in INS v. Chadha, 462 U.S. 919, 968–974, 1003–1013 (1983), describes and lists many kinds of such vetoes. The types of provisions varied widely. Many required congressional approval before an executive action took effect, but more commonly they provided for a negative upon executive action, by concurrent resolution of both Houses, by resolution of only one House, or even by a committee of one House. [Back to text]
522
A bill providing for this failed to receive the two-thirds vote required to pass under suspension of the rules by only three votes in the 94th Congress. H.R. 12048, 94th Congress, 2d sess. See H. REP. NO. 94–1014, 94th Congress, 2d sess. (1976), and 122 CONG. REC. 31615–641, 31668. Considered extensively in the 95th and 96th Congresses, similar bills were not adopted. See Regulatory Reform and Congressional Review of Agency Rules: Hearings Before the Subcommittee on Rules of the House of the House Rules Committee, 96th Congress, 1st sess. (1979); Regulatory Reform Legislation: Hearings Before the Senate Committee on Governmental Affairs, 96th Congress, 1st sess. (1979). [Back to text]
523
462 U.S. 919 (1983). [Back to text]
524
Shortly after deciding Chadha, the Court removed any doubts on this score with summary affirmance of an appeals court’s invalidation of a two-House veto in Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982), aff’d sub nom. Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983). Prior to Chadha, an appellate court in AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982), had voided a form of committee veto, a provision prohibiting the availability of certain funds for a particular purpose without the prior approval of the Committees on Appropriations. [Back to text]
525
Chadha, 462 U.S. at 967. Justice Powell concurred separately, asserting that Congress had violated separation of powers principles by assuming a judicial function in determining that a particular individual should be deported. Justice Powell therefore found it unnecessary to express his view on “the broader question of whether legislative vetoes are invalid under the Presentment Clauses.” Id. at 959. [Back to text]
526
462 U.S. at 952 (citation omitted). [Back to text]
527
462 U.S. at 955–56. [Back to text]
528
478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). [Back to text]
529
Bowsher v. Synar, 478 U.S. 714, 733 (1986). This position was developed at greater length in the concurring opinion of Justice Stevens. Id. at 736. [Back to text]
530
Pub. L. 104–130, 110 Stat. 1200, codified in part at 2 U.S.C. §§ 69192. [Back to text]
531
Id. at § 691(a)(A). [Back to text]
532
524 U.S. 417(1998). [Back to text]
533
E.g., H.R. CONF. REP. NO. 104–491, 104th Cong., 2d Sess. 15 (1996) (stating that the proposed law “delegates limited authority to the President”). [Back to text]
534
524 U.S. at 453 (Justice Scalia concurring in part and dissenting in part); id. at 469 (Justice Breyer dissenting). [Back to text]
535
524 U.S. at 438–39 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)). [Back to text]
536
524 U.S. at 439. [Back to text]