Against Mix-and-Match Lawmaking

Abstract

In a thought-provoking article entitled Noncontemporaneous Lawmaking, published in the Cornell Journal of Law & Public Policy, Seth Barrett Tillman presents the argument that the Constitution's plan for lawmaking does not require that the House and Senate both pass a particular bill during the term of the same Congress. Rather, as his article's subtitle indicates, the Senate of the 110th Congress could enact a bill passed by the House during the 109th Congress. This argument runs contrary to the conventional wisdom, which holds that a bill passed by only one house dies at the end of the two-year Congress. Is Tillman right, or should the Constitution be interpreted to avoid his surprising result?

In this brief response, I defend the conventional view that the Constitution includes a principle of contemporaneity. The contemporaneity requirement is one of those constitutional rules that 'everyone knows' (or at least thinks they know) but that is seldom explained. Although Tillman is correct that the constitutional text is at best coy regarding the need for contemporaneity, various structural, practical, and historical factors support some type of contemporaneity requirement. I do, however, leave open the possibility that the contemporaneity requirement might be satisfied by procedures that differ from those with which we are familiar.

Keywords: bicameralism, presentment, Congress, legislative process, Twenty-Seventh Amendment, treaty formation