Each of the four methods of formal amendment can proceed only with the approval of the President

One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known as the Presentment of Resolutions Clause, or the Order, Resolution, and Vote (ORV) Clause. Subject to a major revelation in the early twenty-first century, its story illustrates originalist legal scholarship in action. (Originalism is an approach to the Constitution that seeks to interpret it according to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to be a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’s work revealed that the Framers’ intent was quite likely otherwise.

The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase “or resolve” after “bill,” achieving the same effect as that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the following day. According to Madison, the ORV Clause was simply a “new form” of his failed amendment. As practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted uncritically by the Supreme Court and legal scholars.

What Tillman uncovered was that Madison’s interpretation of the ORV Clause is actually inconsistent with the constitutional text. Tillman’s 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of single-House actions authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—most notably, INS v. Chadha (1983). In Chadha, the Court struck down the “legislative veto” by the House of Representatives for failing to comply with the principle of bicameralism.

Tillman’s findings also neatly resolved an otherwise puzzling Supreme Court decision from 1798. In Hollingsworth v. Virginia, the Court ruled in a brief opinion that Congress need not have presented the Eleventh Amendment to President Washington for his approval. Subsequent decisions have interpreted the holding to mean simply that constitutional amendment resolutions are exempt from the presentment requirement. Under Tillman’s interpretation, however, the Hollingsworth mystery is solved: the ORV Clause requires that an order, resolution, or vote must be presented to the President only if it is authorized by a prior statute (“to which the Concurrence of the Senate and House or Representatives may be necessary . . . ”). Because Congress does not rely on any statutory authorization when it passes constitutional amendments, the ORV Clause does not apply, and Congress thus need not present constitutional amendment resolutions to the President.

Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may delegate authority to single Houses or even single congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to do just that. Though Lawson generally agreed with Tillman’s interpretation of the ORV Clause, he found that there likely exists only one category of legislative action to which the ORV Clause could apply: the issuance of legislative subpoenas.

This essay is part of a discussion about Article I, Section 7 with Nicholas Bagley, Professor of Law, The University of Michigan Law School. Read the full discussion here.

According to Lawson’s reading of the Constitution, Congress may not delegate legislative authority simply to anyone—not to the President, nor the federal courts, nor even itself. The ORV Clause thus cannot require presentment for any actions made by a single House or committee pursuant to delegated legislative authority, because such delegation is constitutionally impermissible. Further, as Lawson interprets the Presentment Clause, the only type of legislation that can become a law is a bill. The ORV Clause, however, alludes to an order, resolution, or vote that “shall take Effect” upon approval of the President or passage by two-thirds of the Senate and the House. If only a bill may become a law, Lawson asks, then how else may an order, resolution, or vote “take Effect”? His answer is that Congress, under the authority of the Necessary and Proper Clause, may enact legislation authorizing each House to issue subpoenas.

While the Constitution grants neither House of Congress the power to issue subpoenas, a law authorizing the issuance of subpoenas by individual Houses could be valid under the Necessary and Proper Clause, which allows Congress “to make all laws which shall be necessary and proper for carrying into Execution” powers elsewhere granted to the respective Houses. As Lawson allows, the power to issue subpoenas may be necessary and proper for carrying into execution the impeachment powers the Constitution grants to each of the Houses. Though it could not become a law, a legislative subpoena would “take Effect” by compelling testimony in an impeachment hearing. In practice, then, the ORV Clause would require that before any single House issues a subpoena on the authority of a prior statutory authorization, the subpoena be presented to the President for his approval or veto, just as was the prior legislation that authorized the single-House subpoena.

The Tillman-Lawson analysis may strike one as excessively technical, but in this as in many other parts of our Constitution, the devil is in the details. The Supreme Court might revisit Chadha, and when it does, these scholars’ arguments may suddenly take on the relevance of living, and contested, law.