Article I, Section 7 of the Constitution creates certain rules to govern how Congress makes law. Its first Clause—known as 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 any 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 practice, hoping that it would confer the “power of the purse” on the legislative body most responsive to the people—the House of Representatives. As such, only the House may introduce bills “for raising revenue,” although the Senate is explicitly empowered to amend House-originated bills. Any other type of bill may originate in either the Senate or the House.
The Origination Clause was part 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 tax and tariff bills exclusively to the House of Representatives, where the larger states enjoyed greater representation. But while the Clause was hotly contested during the Constitutional Convention and the ratification debates, the Senate’s power 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 bill can become a law only if, after passage by both Houses of Congress, it is presented to the President. The President then has ten days either to sign the bill into law or reject the bill and return 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 House in which it originated. This process is known as a “veto,” though the word does not actually appear in the text of the Constitution. Congress may then modify the bill, responding to the President’s stated objections, to increase the likelihood of presidential approval. Alternatively, Congress may override the President’s veto if both Houses can pass the bill by at least a two-thirds vote. The bill then becomes law without further “presentment” to the President.
Matters are more complicated if the President does nothing by the end of the ten-day window. If Congress is in session, the bill becomes a law—a phenomenon known as “default enactment.” If Congress is out of session, however, the President has no place to return a bill that he or she wishes to veto. In those circumstances, the President may effectively veto the bill by taking no action. This process, first used by James Madison during an intersession recess in 1812, is known as 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 Court 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 within 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 v. United States (1938), ruling that a three-day adjournment of just one House of Congress does not permit a pocket veto. For brief adjournments of a single House, the Court ruled, the originating House may designate an agent, such as a Secretary or Clerk, to receive a vetoed bill. Modern practice is more fluid than Wright may suggest, however. Several recent Presidents have purported to pocket veto bills even when the originating House of Congress has designated an agent to receive a veto message.
The third and final 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 by fashioning a bill as a “resolution” or “order.” To avoid that circumvention, the Clause says that any issue requiring the concurrence of the House and the Senate—whatever that issue happens to be called—must be presented to the President. A congressional declaration of war, for example, comes in the form of a joint resolution. Although it is not denominated a “bill,” it must be submitted for presidential approval.
Not all issues require presentment, however. The Clause explicitly exempts questions of adjournment and, under Article V, congressionally proposed amendments to the Constitution are sent to state legislatures for approval, not to the President. More generally, resolutions that are not meant to become law 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 apply only to the operation of a particular House, such as imposing censure on a House member or expressing “the mood” of the House. By the same token, legislative subpoenas are not presented to the president for his approval.
The Supreme Court reinforced the Presentment of Resolutions Clause (and vindicated Madison’s prediction) most famously in I.N.S. v. Chadha (1983), ruling that it was unconstitutional for Congress to use a resolution to overturn an executive action. The Court reasoned that such a “legislative veto” circumvents the presentment process and infringes on the President’s power to execute the laws.
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.
This essay is part of a discussion about Article I, Section 7 with Thomas A. Smith, Professor of Law, University of San Diego School of Law. Read the full discussion here.
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.
This essay is part of a discussion about Article I, Section 7 with Nicholas Bagley, Professor of Law, The University of Michigan Law School. Read the full discussion here.
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.
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).