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Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause


Gary Lawson


Boston University School of Law

June 14, 2004

Boston Univ. School of Law Working Paper No. 04-07

Abstract:     
The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. Article I, Section 7, Clause 3, requires presentment to the President of 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) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, Section 7, Clause 2 by labeling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See 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 Decided. Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.

Number of Pages in PDF File: 22

Keywords: orders, resolutions, votes, presentment, subpoenas

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Date posted: June 16, 2004  

Suggested Citation

Lawson, Gary, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause (June 14, 2004). Boston Univ. School of Law Working Paper No. 04-07. Available at SSRN: http://ssrn.com/abstract=556789 or http://dx.doi.org/10.2139/ssrn.556789

Contact Information

Gary Lawson (Contact Author)
Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)
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