ArtI.S7.C3.1 Passage of Orders, Resolutions, or Votes

Article I, Section 7, Clause 3:

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 Limitation prescribed in the Case of a Bill.

The Veto Power

The veto provisions, the Supreme Court has told us, serve two functions. On the one hand, they ensure that the President shall have suitable opportunity to consider the bills presented to him. . . . It is to safeguard the President's opportunity that Paragraph 2 of § 7 of Article I provides that bills which he does not approve shall not become law if the adjournment of the Congress prevents their return.1 At the same time, the sections ensure that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes.2 The Court asserted that [w]e should not adopt a construction which would frustrate either of these purposes.3

In one major respect, however, the President's actual desires may be frustrated by the presentation to him of omnibus bills or of bills containing extraneous riders. During the 1980s, on several occasions, Congress lumped all the appropriations for the operation of the government into one gargantuan bill. But the President must sign or veto the entire bill; doing the former may mean he has to accept provisions he would not sign standing alone, and doing the latter may have other adverse consequences. Numerous Presidents from Grant on have unsuccessfully sought by constitutional amendment a line-item veto by which individual items in an appropriations bill or a substantive bill could be extracted and vetoed. More recently, beginning in the FDR Administration, it has been debated whether Congress could by statute authorize a form of the line-item veto, but, again, nothing passed. 4

That the interpretation of the provisions has not been entirely consistent is evident from a review of the only two Supreme Court decisions construing them. In The Pocket Veto Case, 5 the Court held that the return of a bill to the Senate, where it originated, had been prevented when the Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President. The word adjournment was seen to have been used in the Constitution not in the sense of final adjournments but to any occasion on which a house of Congress is not in session. We think that under the constitutional provision the determinative question in reference to an 'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that 'prevents' the President from returning the bill to the House in which it originated within the time allowed.6 Because neither House was in session to receive the bill, the President was prevented from returning it. It had been argued to the Court that the return may be validly accomplished to a proper agent of the house of origin for consideration when that body convenes. After first noting that Congress had never authorized an agent to receive bills during adjournment, the Court opined that delivery of the bill to such officer or agent, even if authorized by Congress itself, would not comply with the constitutional mandate.7

However, in Wright v. United States, 8 the Court held that the President's return of a bill to the Secretary of the Senate on the tenth day after presentment, during a three-day adjournment by the originating House only, was an effective return. In the first place, the Court thought, the pocket veto clause referred only to an adjournment of the Congress, and here only the Senate, the originating body, had adjourned. The President can return the bill to the originating House if that body be in an intrasession adjournment, because there is no practical difficulty in effectuating the return. The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive the bill.9 Such a procedure complied with the constitutional provisions. The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.10 The concerns activating the Court in The Pocket Veto Case were not present. There was no indefinite period in which a bill was in a state of suspended animation with public uncertainty over the outcome. When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time and is promptly reported and may be reconsidered immediately after the short recess is over.11

The tension between the two cases, even though at a certain level of generality they are consistent because of factual differences, has existed without the Supreme Court yet having occasion to review the issue again. But, in Kennedy v. Sampson, 12 an appellate court held that a return is not prevented by an intra-session adjournment of any length by one or both Houses of Congress, so long as the originating House arranged for receipt of veto messages. The court stressed that the absence of the evils deemed to bottom the Court's premises in The Pocket Veto Case – long delay and public uncertainty – made possible the result.

The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum. 13 After a bill becomes law, of course, the President has no authority to repeal it. Asserting this truism, the Court in The Confiscation Cases14 held that the immunity proclamation issued by the President in 1868 did not require reversal of a decree condemning property seized under the Confiscation Act of 1862. 15

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. 16 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. 17 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. 18

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, 19 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. 20

The Legislative Veto

Beginning in the 1930s, the concurrent 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, 21 and was really furthered by the necessities of providing for national security and foreign affairs immediately prior to and during World War II. 22 The proliferation of congressional veto provisions in legislation over the years raised a series of interrelated constitutional questions. 23 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. 24

In INS v. Chadha, 25 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. 26 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.'27

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.28

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.29

The breadth of the Court's ruling in Chadha was evidenced in its 1986 decision in Bowsher v. Synar. 30 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.31 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. 32 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.33 In Clinton v. City of New York, 34 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, 35 and although the dissenting Justices would have upheld the Act as a valid delegation, 36 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. 37 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. 38

Footnotes

  1.  Jump to essay-1Wright v. United States, 302 U.S. 583 (1938).
  2.  Jump to essay-2302 U.S. at 596.
  3.  Jump to essay-3302 U.S. at 596.
  4.  Jump to essay-4See Line Item Veto: Hearing Before the Senate Committee on Rules and Administration, 99th Cong., 1st sess. (1985), esp. 10-20 (CRS memoranda detailing the issues). Some publicists have even contended, through a strained interpretation of clause 3, actually from its intended purpose to prevent Congress from subverting the veto power by calling a bill by some other name, that the President already possesses the line-item veto, but no President could be brought to test the thesis. See Pork Barrels and Principles: The Politics of the Presidential Veto (National Legal Center for the Public Interest, 1988) (essays).
  5.  Jump to essay-5279 U.S. 655 (1929).
  6.  Jump to essay-6279 U.S. at 680.
  7.  Jump to essay-7279 U.S. at 684.
  8.  Jump to essay-8302 U.S. 583 (1938).
  9.  Jump to essay-9302 U.S. at 589-90.
  10.  Jump to essay-10302 U.S. at 589.
  11.  Jump to essay-11302 U.S. at 595.
  12.  Jump to essay-12511 F.2d 430 (D.C. Cir. 1974). The Administration declined to appeal the case to the Supreme Court. The adjournment here was for five days. Subsequently, the President attempted to pocket veto two other bills, one during a 32-day recess and one during the period in which Congress had adjourned sine die from the first to the second session of the 93d Congress. After renewed litigation, the Administration entered its consent to a judgment that both bills had become law, Kennedy v. Jones, 412 F. Supp. 353 (D.D.C., decree entered April 13, 1976), and it was announced that President Ford will use the return veto rather than the pocket veto during intra-session and intersession recesses and adjournments of the Congress, provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session. President Reagan repudiated this agreement and vetoed a bill during an intersession adjournment. Although the lower court applied Kennedy v. Sampson to strike down the exercise of the power, but the case was mooted prior to Supreme Court review. Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated and remanded to dismiss sub nom. Burke v. Barnes, 479 U.S. 361 (1987).
  13.  Jump to essay-13Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919).
  14.  Jump to essay-1487 U.S. (20 Wall.) 92 (1874).
  15.  Jump to essay-1512 Stat. 589 (1862).
  16.  Jump to essay-16See 2 Max 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).
  17.  Jump to essay-17Seth 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).
  18.  Jump to essay-18S. Rep. No. 1335, 54th Congress, 2d Sess.; 4 Hinds' Precedents of the House of Representatives § 3483 (1907).
  19.  Jump to essay-19 3 U.S. (3 Dall.) 378 (1798).
  20.  Jump to essay-20Although 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).
  21.  Jump to essay-21Act of June 30, 1932, § 407, 47 Stat. 414.
  22.  Jump to essay-22See, 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.
  23.  Jump to essay-23From 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.
  24.  Jump to essay-24A 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).
  25.  Jump to essay-25462 U.S. 919 (1983).
  26.  Jump to essay-26Shortly 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.
  27.  Jump to essay-27Chadha, 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.
  28.  Jump to essay-28462 U.S. at 952 (citation omitted).
  29.  Jump to essay-29462 U.S. at 955-56.
  30.  Jump to essay-30478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
  31.  Jump to essay-31Bowsher 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.
  32.  Jump to essay-32Pub. L. No. 104-130, 110 Stat. 1200, codified in part at 2 U.S.C. §§ 691-92.
  33.  Jump to essay-33Id. at § 691(a)(A).
  34.  Jump to essay-34524 U.S. 417(1998).
  35.  Jump to essay-35E.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).
  36.  Jump to essay-36524 U.S. at 453 (Justice Scalia concurring in part and dissenting in part); id. at 469 (Justice Breyer dissenting).
  37.  Jump to essay-37524 U.S. at 438-39 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
  38.  Jump to essay-38524 U.S. at 439.