Presentment of Resolutions Clause

Abstract

The Presentment of Resolutions Clause at the Federal Convention.

On August 15, 1787, after the outlines of the Veto or Presentment Clause (Article I, Section 7, Clause 2) had been agreed upon, James Madison noted that Congress could evade the possibility of a presidential veto by simply denominating a “bill” as a “resolution[], vote[], &c” [5 Elliot’s Debates 431.] For that reason, he made a motion to insert the words “or resolve” after the word “bill” in the Presentment Clause. Madison characterized the debate on his motion as “confused”—this was the only such debate at the Convention that was so characterized. And his motion was defeated 8 to 3. [Id.]

The following day Edmund Randolph proposed a freestanding clause—with extensive and exacting language. Indeed, Randolph’s initial proposal was nearly identical to the final language which emerged from the Convention as Article I, Section 7, Clause 3. The Convention, without debate or explanation, approved Randolph’s proposal 9 to 1. [5 Elliot’s Debates 431; Tillman, Textualist, 1314 n.106.] Seven states that voted against Madison’s proposal voted for Randolph’s. Nevertheless, Madison characterized Randolph’s measure as “a new form [of Madison’s prior] motion putting votes, resolutions, &c., on a footing [equal] with bills.” [5 Elliot’s Debates 431.]

There does not appear to be any substantial debate on the clause from the ratification era—at the Convention, in the state ratifying conventions, or within other public materials, such as newspapers. Although many modern sources discussing the Constitution omit all discussion of the clause, those that do discuss it, have consistently adopted Madison’s understanding of the clause: the purpose of the clause is to preclude Congress’s evading the President’s veto by denominating a bill something other than a bill. [Compare AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY passim (2006), with CONGRESSIONAL RESEARCH SERVICE / LIBRARY OF CONGRESS, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 301, S. DOC. NO. 117-12, 117th Cong., 2d Sess. (Jeanne M. Dennis et al. eds., with cases decided by the Supreme Court of the United States to June 30, 2022).]

There is some reason to doubt that Chadha was correctly decided as a matter of original public meaning. Or, to put it another way, as a matter of original public meaning, there are some good reasons to doubt the correctness of the standard Madisonian reading of this clause.