What Bill Must Begin in the House of Representatives
Common Interpretation
Commodity I, Section 7
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 procedure that promotes thorough deliberation over the wisdom of any new legislation.
The Origination Clause derived from an English language parliamentary practice requiring all money bills to have their kickoff reading in the House of Commons. The Framers borrowed this practice, hoping that information technology would confer the "power of the handbag" on the legislative body most responsive to the people—the House of Representatives. As such, merely the House may introduce bills "for raising revenue," although the Senate is explicitly empowered to amend House-originated bills. Any other type of nib may originate in either the Senate or the House.
The Origination Clause was office of the Great Compromise. A concession to the larger states, which were dissatisfied with the smaller states' disproportionate ability in the Senate, information technology limits the ability to introduce revenue enhancement and tariff bills exclusively to the Firm of Representatives, where the larger states enjoyed greater representation. Simply while the Clause was hotly contested during the Constitutional Convention and the ratification debates, the Senate'south power to meliorate revenue-raising bills has deprived the Clause of much practical significance.
The Presentment Clause is no such newspaper tiger. The Clause provides that a bill tin become a law only if, after passage past both Houses of Congress, it is presented to the President. The President and then has ten days either to sign the nib into police force or refuse the neb 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 Firm in which it originated. This procedure is known every bit 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 increment the likelihood of presidential approval. Alternatively, Congress may override the President's veto if both Houses tin can pass the bill by at least a two-thirds vote. The nib then becomes police force without further "presentment" to the President.
Matters are more than complicated if the President does nothing by the end of the x-day window. If Congress is in session, the bill becomes a law—a phenomenon known as "default enactment." If Congress is out of session, yet, the President has no place to return a pecker that he or she wishes to veto. In those circumstances, the President may finer veto the neb by taking no action. This process, offset used by James Madison during an intersession recess in 1812, is known equally a "pocket veto." Congress may not override a pocket veto.
What exactly constitutes an banishment for the purposes of a pocket veto has been a source of conflict. Does whatsoever banishment count, for instance, or just those adjournments that end the legislative session? The Supreme Courtroom provided some insight in the Pocket Veto Case (1929), property that "the determinative question" is whether Congress has adjourned in a manner "that 'prevents' the President from returning the bill to the Business firm in which it originated within the fourth dimension allowed." Because both Houses had adjourned in the Pocket Veto Case, even though the legislation session was non over, a pocket veto was permissible.
The Court refined that estimation in Wright v. Us (1938), ruling that a three-mean solar day adjournment of but one Firm of Congress does not permit a pocket veto. For cursory adjournments of a single Business firm, the Court ruled, the originating Business firm may designate an agent, such as a Secretarial assistant or Clerk, to receive a vetoed bill. Modern practice is more fluid than Wright may suggest, withal. 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 equally the Presentment of Resolutions Clause, concerns the presentment of orders, resolutions, and whatsoever 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 past fashioning a bill as a "resolution" or "order." To avoid that circumvention, the Clause says that whatsoever upshot requiring the concurrence of the House and the Senate—whatever that issue happens to exist called—must be presented to the President. A congressional declaration of war, for case, comes in the class of a joint resolution. Although it is not denominated a "bill," information technology 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 get 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 detail 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 approving.
The Supreme Courtroom reinforced the Presentment of Resolutions Clause (and vindicated Madison'due south prediction) most famously in I.Due north.S. 5. 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'due south power to execute the laws.
Matters of Debate
Judicial Enforcement of Article I, Department seven
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 Firm of Representatives, for example, does non attempt to claim the power to make a police without Senate interest. Nor do the Firm 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 then entrenched in our constitutional system that information technology would be unthinkable to disregard them.
From time to time, nonetheless, complex questions do ascend nearly whether Congress and the President accept been faithful to the lawmaking process that Article I, Section seven 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 Intendance Act (ACA), which reformed the nation'southward wellness-care arrangement. Technically, the ACA adhered to the Origination Clause, which says that "[a]ll Bills for raising Acquirement shall originate in the House of Representatives." The beak that became the ACA was first introduced and passed in the House equally the "Service Members Home Ownership Tax Act of 2009."
That Business firm-originated neb, however, had nothing whatsoever to do with health intendance. The pecker became the ACA only when the Senate struck the language of the original nib and replaced it with the text of the health-care reform law. Zip of the original bill remained.
Another Perspective
This essay is role 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.
Later on the ACA's adoption, lawsuits were filed arguing that this "vanquish pecker" process violated the Origination Clause. The challengers had a indicate. The Origination Clause is supposed to requite the Firm of Representatives the start say in whether and when to exercise the ability to tax. Although the Senate tin can "suggest and concur with Amendments as on other bills," allowing the Senate to completely supersede a House-originated neb would effectively strip the House of its gatekeeping office. The challengers therefore asked the courts to invalidate the ACA in its entirety.
Wisely, however, the courts have unanimously turned bated the ramble challenge. The shell nib procedure was not built-in with the ACA; it is, in fact, a process that the Senate has used for 200 years. And the courts have never felt information technology necessary to examine whether Senate amendments are "germane" to a Firm-originated bill. In the 1911 case of Flint v. Rock 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 take deferred to Congress's longstanding practise, even though the practice left the Origination Clause with petty work to do. Yet the Republic has non fallen. Over time, the give-and-take between the Business firm 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 Subpoena, state legislatures selected the Senators that would correspond the states in Congress. Today, both Houses tin can credibly claim to speak directly for the people, reducing the need for the House to retain whatever special control over bills to raise revenue.
A movement is itinerant, however, to utilize constitutional litigation as a sword to undo what Congress has created. Couched in the rhetoric of restoring the Constitution'due south "original meaning," the motility's goal is to clip Congress's wings and undo its handiwork. The lawsuits against the ACA exemplify that move.
But the Constitution'south pregnant was not stock-still in rock at the moment of its ratification. The Constitution has instead accrued significant from history, practice, and an evolving sense of its broader purposes. The Origination Clause may practise lilliputian work in the modern era, but that's OK. Times change; and then as well does the way nosotros read the Constitution.
To be certain, on rare occasions, judicial intervention to enforce Article I, Section vii may well be necessary. In INS v. Chadha (1983), for example, the Supreme Courtroom was rightly troubled at how a one-business firm veto over executive-branch action might enable Congress to retain control over the execution of the laws.
Only that kind of intervention should be the exception, non 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'southward original significant. They should continue to do so.
Matters of Fence
The Future of Commodity I, Section seven
One of the most interesting recent developments in our agreement of Article I, Department seven 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 20-first century, its story illustrates originalist legal scholarship in activeness. (Originalism is an approach to the Constitution that seeks to interpret information technology according to its original public meaning.) Though the ORV Clause was widely understood for more than than 200 years to be a failsafe against Congress disguising a bill every bit a "resolution" and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman's work revealed that the Framers' intent was quite probable otherwise.
The popular estimation 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 "neb," achieving the same upshot every bit 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 only a "new form" of his failed amendment. As practically the only surviving commentary, Madison's oddly simplistic business relationship of the ORV Clause was accustomed uncritically past the Supreme Courtroom and legal scholars.
What Tillman uncovered was that Madison's interpretation of the ORV Clause is really inconsistent with the constitutional text. Tillman'southward 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, only too subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of unmarried-Firm actions authorized past prior, bicameral legislation. That Congress may legislatively authorize a single Business firm to human action 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 declining 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 non have presented the Eleventh Subpoena to President Washington for his blessing. Subsequent decisions have interpreted the holding to mean simply that constitutional amendment resolutions are exempt from the presentment requirement. Under Tillman'south estimation, however, the Hollingsworth mystery is solved: the ORV Clause requires that an order, resolution, or vote must be presented to the President merely if information technology is authorized by a prior statute ("to which the Concurrence of the Senate and Business firm or Representatives may be necessary . . . "). Because Congress does non rely on any statutory authorization when it passes ramble amendments, the ORV Clause does not apply, and Congress thus need non present constitutional subpoena resolutions to the President.
Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may consul say-so to single Houses or even unmarried congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to exercise but that. Though Lawson generally agreed with Tillman'southward interpretation of the ORV Clause, he found that there likely exists simply i category of legislative action to which the ORV Clause could employ: the issuance of legislative subpoenas.
Another Perspective
This essay is part of a word about Article I, Section seven with Nicholas Bagley, Professor of Law, The University of Michigan Law Schoolhouse. Read the full discussion here.
Co-ordinate to Lawson's reading of the Constitution, Congress may not delegate legislative say-so 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 potency, considering such delegation is constitutionally impermissible. Further, as Lawson interprets the Presentment Clause, the only type of legislation that tin can get a law is a bill. The ORV Clause, however, alludes to an order, resolution, or vote that "shall take Consequence" upon approval of the President or passage by two-thirds of the Senate and the Business firm. If only a pecker may become a police, Lawson asks, and so how else may an guild, resolution, or vote "take Issue"? His reply is that Congress, under the authority of the Necessary and Proper Clause, may enact legislation authorizing each Business firm to outcome subpoenas.
While the Constitution grants neither House of Congress the power to issue subpoenas, a law authorizing the issuance of subpoenas past private Houses could be valid under the Necessary and Proper Clause, which allows Congress "to make all laws which shall be necessary and proper for conveying into Execution" powers elsewhere granted to the respective Houses. Equally 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 information technology could non get a law, a legislative amendment would "accept Effect" by compelling testimony in an impeachment hearing. In practice, so, the ORV Clause would require that before any unmarried House issues a subpoena on the authority of a prior statutory say-so, the subpoena be presented to the President for his approval or veto, just as was the prior legislation that authorized the unmarried-House amendment.
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 Courtroom might revisit Chadha, and when it does, these scholars' arguments may suddenly take on the relevance of living, and contested, constabulary.
Further Reading:
Seth Barrett Tillman, A Textualist Defense of Article I, Department 7, Clause iii: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS five. Chadha Was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005).
Gary Lawson, Called-for Downwardly the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).
Source: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/766
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