Tillman on Lawson on the Orders, Resolutions and Votes Clause
Seth Barrett Tillman (United States Court of Appeals, Third Circuit) has posted The Domain of Constitutional Delegations under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson on SSRN. Here is the abstract:
- 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 Limitations prescribed in the Case of a Bill.
Madison, in his Notes on the Debates in the Federal Convention (Aug. 15 & 16, 1787), said it meant the following:
Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (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 Limitations prescribed in the Case of [other] Bill[s] [properly stylized when enacted per Art. I, S. 7, cl. 2].
Thus, this clause is usually called the residual presentment clause — or, the second presentment clause: it ensures presentment in spite of feared Madisonian legislative legerdemain attempting to manipulatively bypass the president’s veto.
Here is the alternative view put forward by a Commonwealth parliamentarian with whom I corresponded on this question. He is very well informed with regard to 18th century British and colonial parliamentary and administrative (treasury) practices. Indeed, my research relied extensively on contacts with foreign parliamentary officers and counsel, legislative clerks & secretaries.
Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], 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 Limitations prescribed in the Case of a Bill [which is a different case].
Reexamination of colonial and early state records leads me to conclude that the new view better captures the original understanding of the ORV Clause — Madison’s report notwithstanding. This new meaning stands our separation of powers jurisprudence on its head. It means the Supreme Court’s holding in INS v. Chadha — broadly speaking — was fundamentally misconceived. Presentment is necessary, but not bicameralism, where single house orders are first authorized by a prior statute. At a deeper level it means that our interpretive community — judges, legal academics, academics in related fields (government, political science, and history), and lawyers generally — have forgotten what a clause of the Constitution meant, and that recovery of lost meaning required going to a foreigner!
Professor Gary S. Lawson has taken the position that although the new view captures the original meaning of the clause, coordinate constitutional provisions, particularly the vesting clauses of Artices I, II and III, restrict the domain of the clause to congressional subpoenas and contempts.
In this reply, I take the position that Congress’s lawmaking powers under the ORV Clause are nearly coextensive with Congress’s statutory lawmaking powers. Congress’s powers under the ORV Clause extend far beyond congressional subpoenas and contempts.