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The Domain of Constitutional Delegations Under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson


Seth Barrett Tillman


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


83 Texas Law Review 1389-97 (2005)

Abstract:     
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.

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 Articles 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.

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: 9

Keywords: Order, resolution, vote, ORV clause, Lawson, Tillman, parliament

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Date posted: February 1, 2005 ; Last revised: August 13, 2008

Suggested Citation

Tillman, Seth Barrett, The Domain of Constitutional Delegations Under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson. 83 Texas Law Review 1389-97 (2005). Available at SSRN: http://ssrn.com/abstract=658003

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
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