A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned

Seth Barrett Tillman

Abstract

SYNOPSIS: U.S. Constitution: art. I, S. 7, cl. 3 reads:

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.

I have good reason to believe Madison wrong. Here is the 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, 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].

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!

My opening article appeared at: Tillman, A Textualist Defense, 83 TEXAS LAW REVIEW 1265-1372 (2005). Professor Gary S. Lawson's response appeared at: Lawson, Comment, Burning Down the House (and Senate), 83 TEXAS LAW REVIEW 1373 (2005). I replied at: Tillman, Reply, The Domain of Constitutional Delegations under the Orders, Resolutions, and Votes Clause, 83 TEXAS LAW REVIEW 1389-97 (2005).

[May 17, 2009]