Abstract

http://ssrn.com/abstract=475204
 
 

Footnotes (247)



 


 



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


National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law


83 Texas Law Review 1265-1372 (2005)

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), also appearing at, http://ssrn.com/abstract=475204. Professor Gary S. Lawson's response appeared at: Lawson, Comment, Burning Down the House (and Senate), 83 TEXAS LAW REVIEW 1373 (2005), also appearing at, http://ssrn.com/abstract=556789. I replied at: Tillman, Reply, The Domain of Constitutional Delegations under the Orders, Resolutions, and Votes Clause, 83 TEXAS LAW REVIEW 1389-97 (2005), also appearing at, http://ssrn.com/abstract=658003.

Number of Pages in PDF File: 108

Keywords: orders, resolutions, votes, resolves, presentment, Hollingsworth, Chadha

Accepted Paper Series


Download This Paper

Date posted: January 5, 2004 ; Last revised: August 13, 2008

Suggested Citation

Tillman, Seth Barrett, 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. 83 Texas Law Review 1265-1372 (2005). Available at SSRN: http://ssrn.com/abstract=475204

Contact Information

Seth Barrett Tillman (Contact Author)
National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )
Ollscoil na hÉireann, Má Nuad
New House (#306)
Maynooth, County Kildare
Ireland
(353) (0) 1474-7216 (Phone)
HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman
Feedback to SSRN


Paper statistics
Abstract Views: 13,513
Downloads: 1,265
Download Rank: 7,631
Footnotes:  247

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.672 seconds