Article I, Section 7

Some of the most urgent debates in constitutional law 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, most of the constitutional rules governing lawmaking need no judicial enforcement. The House of Representatives, for example, does not attempt to claim the power to make a law without Senate involvement. Nor do the House 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 system that it would be unthinkable to disregard them.

From time to time, however, complex questions do arise about whether Congress and the President have 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 confront a difficult question: how stringently should they apply the open-ended terms of the Constitution?

Take, for example, recent litigation over the Affordable Care Act (ACA), which reformed the nation’s health-care 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 Home Ownership Tax Act of 2009.”

That House-originated bill, however, had nothing whatsoever to do with health care. The bill became the ACA only when the Senate struck the language of the original bill and replaced it with the text of the health-care reform law. Nothing of the original bill remained.

After the ACA’s adoption, lawsuits were filed arguing that this “shell bill” 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 can “propose and concur with Amendments as on other bills,” allowing the Senate to completely replace a House-originated bill would effectively strip the House of its gatekeeping function. The challengers therefore asked the courts to invalidate the ACA in its entirety.

Wisely, however, the courts have unanimously turned aside the constitutional challenge. The shell bill procedure was not born with the ACA; it 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 House-originated bill. In the 1911 case of Flint v. Stone Tracy Company, for example, the Supreme Court affirmed the constitutionality of a Senate amendment that substituted a corporate tax for a House-originated inheritance tax.

In effect, the courts have deferred to Congress’s longstanding practice, even though the practice left the Origination Clause with little work to do. Yet the Republic has not fallen. Over time, the give-and-take 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 directly for the people, reducing the need for the House to retain any special control over bills to raise revenue.

A movement is afoot, however, to use constitutional litigation as a sword to undo what Congress has created. Couched in the rhetoric of restoring the Constitution’s “original meaning,” the movement’s goal is to clip Congress’s wings and undo its handiwork. The lawsuits against the ACA exemplify that movement.

But the Constitution’s meaning was not fixed in stone at the moment of its ratification. The Constitution has instead accrued meaning from history, practice, and an evolving sense of its broader purposes. The Origination Clause may do little work in the modern era, but that’s OK. Times change; so too does the way we read the Constitution.

To be sure, on rare occasions, judicial intervention to enforce Article I, Section 7 may well be necessary. In INS v. Chadha (1983), for example, the Supreme Court was rightly troubled at how a one-house veto over executive-branch action might enable Congress to retain control over the execution of the laws.

But that kind of intervention should be the exception, not the norm. Otherwise, judicial superintendence of the machinery of lawmaking risks thwarting the will of the people without adequate justification. When it comes to the Origination Clause, the courts have so far resisted the blandishments of those who seek to invalidate Congress’s handiwork in the name of restoring the Constitution’s original meaning. They should continue to do so.

One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known as 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 interpret it according to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to be a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’s work revealed that the Framers’ intent was quite likely otherwise.

The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase “or resolve” after “bill,” achieving the same effect as that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the following day. According to Madison, the ORV Clause was simply a “new form” of his failed amendment. As practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted 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’s 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of single-House actions authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—most notably, INS v. Chadha (1983). In Chadha, the Court struck down the “legislative veto” by 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 brief opinion that Congress need not have presented the Eleventh Amendment to President Washington for his approval. Subsequent decisions have interpreted the holding to mean simply that constitutional amendment resolutions are exempt from the presentment requirement. Under Tillman’s interpretation, however, the Hollingsworth mystery is solved: the ORV Clause requires that an order, resolution, or vote must be presented to the President only if it is authorized by a prior statute (“to which the Concurrence of the Senate and House or Representatives may be necessary . . . ”). Because Congress does not rely on any statutory authorization when it passes constitutional amendments, the ORV Clause does not apply, and Congress thus need not present constitutional amendment resolutions to the President.

Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may delegate authority to single Houses or even single congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to do just that. Though Lawson generally agreed with Tillman’s interpretation of the ORV Clause, he found that there likely exists only one category of legislative action to which the ORV Clause could apply: the issuance of legislative subpoenas.

According to Lawson’s reading of the Constitution, Congress may not delegate legislative authority simply to anyone—not to the President, nor the federal courts, nor even itself. The ORV Clause thus cannot require presentment for any actions made by a single House or committee pursuant to delegated legislative authority, because such delegation is constitutionally impermissible. Further, as Lawson interprets the Presentment Clause, the only type of legislation that can become a law is a bill. The ORV Clause, however, alludes to an order, resolution, or vote that “shall take Effect” upon approval of the President or passage by two-thirds of the Senate and the House. If only a bill may become a law, Lawson asks, then how else may an order, resolution, or vote “take Effect”? His answer is that Congress, under the authority 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 issue subpoenas, a law authorizing the issuance of subpoenas by individual Houses could be valid under the Necessary and Proper Clause, which allows Congress “to make all laws which shall be necessary and proper for carrying into Execution” powers elsewhere granted to the respective Houses. As Lawson allows, the power to issue 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 become a law, a legislative subpoena would “take Effect” by compelling testimony in an impeachment hearing. In practice, then, the ORV Clause would require that before any single House issues a subpoena on the authority of a prior statutory authorization, the subpoena be presented to the President for his approval or veto, just as was the prior legislation that authorized the single-House subpoena.

The Tillman-Lawson analysis 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 Court might revisit Chadha, and when it does, these scholars’ arguments may suddenly take on the relevance of living, and contested, law.

Further Reading:

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 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. L. Rev. 1373 (2005).