Friday, February 10, 2006

Q: When is a Bill Signed by the President Not a Law?

Marty Lederman

A. When it has not been passed by both the House and the Senate. U.S. Const. Art. I, sec. 7, cl. 2.

Civics 101 lesson:

On Wednesday, the President signed S. 1932, the Deficit Reduction Act of 2005. It is, by all accounts, an extremely significant, $39 billion piece of legislation, which sharply divided the legislature. The bill passed the Senate back in December only on the tie-breaking vote of the Vice President. It then went to the House, which purported to agree to the Senate amendment by a vote of 216 to 214 on February 1st. In other words, it doesn't get much closer than that.

But there's a catch -- namely, that the House apparently did not vote for the bill that had passed the Senate.

Section 5101(b)(1)(B) of the bill would limit Medicare payment for rental of oxygen equipment to a period of 36 months, after which the supplier of the equipment must transfer title to the recipient. This had been a controversial provision. Under pre-existing law, Medicare paid for oxygen supply, tanks and maintenance for as long as an eligible patient uses them; and the average usage period is 30 months. The House-Senate Conference had capped payments at 18 months, which caused Sen. George Voinovich, R-Ohio, "normally an immovable budget hawk," to threaten to derail the entire $40 billion deficit-cutting bill. Hence, the 36-month solution in the Senate bill.

For rental of (almost) all other "durable medical equipment," however (e.g., wheelchairs), section 5101(a)(1) of the Senate bill capped payment at 13 months.

Here's the rub: When the Senate sent S.1932 over to the House, the "36 months" language for oxygen tanks in section 5101(b) was included, but that same language was also inserted into section 5101(a), so that the bill provides for reimbursement for other durable medical equipment for the same 36 months as is available for oxygen tanks. (This blurb in yesterday's Washington Post tells the story, but mistakenly refers to the discrepancy as appearing in the oxygen-tank provision, rather than in the catch-all provision.)


The Post story reports that "when the mistake was discovered, a . . . clerk scribbled out '36 months' and wrote in '13 months.'" But that's not quite right. According to a Congressional Quarterly story, the mistake apparently was discovered in mid-January, but was not then corrected, because "no agreement could be reached between the House and Senate about how to resolve the difference from the Senate version other than passing a corrective measure after enacting the reconciliation bill." So the different bill was considered by the House, where it was approved by just two votes.

After the House passed the bill, the Senate clerk "corrected" the error and, according to CQ, "[i]t was then certified by House Speaker J. Dennis Hastert, R-Ill., and Sen. Ted Stevens, R-Alaska, acting in his capacity as president pro-tempore of the Senate, as the correct bill and sent to the president."

The enrolled version that was transmitted to the President tracks the Senate version.

But the House never passed the actual Senate-passed version.

Article I provides that, in order to become a law, a "Bill . . . shall have passed the House of Representatives and the Senate." (For those of you needing a refresher course, listen here.) Has S.1932, which the President signed on Wednesday, passed the House of Representatives?

If not, what comes of it?

[UPDATE: Tom Johnson, in the Comments, cites Field v. Clark for the proposition that "the version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it." "Therefore," Tom writes, "if the version signed by the President included the 13 month language, then that would appear to be the law."

Close, but not quite. Tom is probably correct in suggesting that the courts will enforce the bill as signed by the President, at least if and when the bill is deposited in the public Archives. That's the holding of Field v. Clark, 143 U.S. 649 (1892), in which the first Justice Harlan held for the Court that, once a bill is deposited in the public Archives, a court should not look behind the President's signature, and the attestation of the Speaker and President Pro Tem, to question whether the bill was in fact passed by both houses. (The signed bill in Field v. Clark apparently omitted a section that had been in the version approved by both houses of Congress.)

But that does not determine whether or not the Deficit Reduction Act is a law. The Field rule is an evidentiary rule, motivated by the "respect due to a coordinate branch of the government." The Court explained that for it to look behind the signatures would suggest the possibility of "a deliberate conspiracy" of the presiding congressional officers to send to the President a bill that had not, in fact, been passed by both houses -- something the Court was understandably loathe to do. Id. at 672-673.

Which goes to show, at most, that Hastert and Stevens, et al., might get away with what is, in fact, a "conspiracy" to violate the Constitution. That is to say, Dennis Hastert has violated his constitutional oath by attesting to the accuracy of the bill, knowing that the House version was different (and having intentionally avoided fixing the discrepancy when it came to his attention before the House vote). And Stevens and the President are coconspirators, assuming they, too, knew about the problem before they attested to and signed the bill, respectively.

What's the authority for my conclusion that the bill is not a law? None other than Field v. Clark itself, in which the Court agreed that "it cannot be doubted" that a bill signed by the President "does not become a law of the United States if it ha[s] not in fact been passed by Congress. . . . There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, nor in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress." Id. at 669.

Just because something won't be remedied by the judiciary doesn't mean it's constitutional -- and doesn't mean the President and officers of the Congress can lawfully ignore their constitutional obligations.]


Not quite, Tom. The question isn't whether the courts will enforce it, but whether it is, in fact, a law.

Field v. Clark holds that, once the bill is deposited in the public Archives, a *court* may not look behind the President's signature, and the attestation of the Speaker and President Pro Tem, to question whether the bill was in fact passed by both houses. It's an *evidentiary* rule, adopted because of the "respect due to a coordinate branch of the government," and because to look behind the signatures would suggest the possibility of "a deliberate conspiracy" of the presiding congressional officers to send to the President a bill that had not, in fact, been passed by both houses.

Which goes to show, at most, that they'll get away with it. But here, we do, in fact, have a conspiracy to enroll a bill that is not a law. That is to say, Dennis Hastert has violated his constitutional oath by attesting to the accuracy of the bill, knowing that the House version was different (and having intentionally avoided fixing the discrepancy) -- and the President has, too, if he knew about the problem before he signed the bill.

Just because something won't be remedied by the judiciary doesn't mean it's constitutional -- and doesn't mean the President and officers of the Congress can lawfuly ignore their constitutional obligations.

As I posted on the conlawprof list:

This is a great discussion, but I think it just does not apply to the Deficit Reduction Act of 2005. As I read the information from "Thomas," the House approved the Act (S. 1932) by approving H. Res. 653. That resolution provided that the House concurred in the Senate amendment to S. 1932. The resolution passed 216-214, thus concurring in the Senate version of S. 1932 and allowing the bill to be sent to the President for his signature.

The text that included the mistaken language was not a part of H. Res. 653.

I suppose House members might have been misled as to what the text of the Senate version of S. 1932 was, but they voted to concur in the Senate version. The text of the Senate version (perhaps including the mistaken
language) appears in the Congressional Record immediately following the report of the approval of H. Res. 653, but it does not appear that the mistaken language was part of what was voted on by the House.

It's not that I have nothing better to do than to read the CR. The bill raises (or at least attempts to raise) the filing fee for chapter 11 bankruptcy cases, and I'm citing it in a book that I'm writing. Thus I need to know whether the bill is a law! In fact the bill attempts to amend the wrong subsection of the filing fee provision in 28 U.S.C., but I think the intent is clear enough. (The bill says that "$1,000" in 28 U.S.C. sec.
1930(a)(2) is deleted and replaced with "$2,750," but sec. 1930(a)(2) does not contain the "$1,000" figure; sec. 1930(a)(3) does. I wonder whether Marty or others think the bill is effective to amend a section of the Code to which it does not refer, but rather the section that it must have been intended to amend.)

Here are relevant materials from, dealing with H. Res. 653:

[Text of H. Res. 653 as passed by the House:]


H. Res. 653

In the House of Representatives, U.S.,

February 1, 2006.

Resolved, That the House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1932) to provide for reconciliation pursuant to section 202(a) of the concurrent resolution on the budget for fiscal year
2006 (H. Con. Res. 95).



[Excerpt from Congressional Record regarding passage of H. Res. 653:]

[Page: H68]


The SPEAKER pro tempore (Mr. Foley). The pending business is the vote on adoption of House Resolution 653 on which the yeas and nays are ordered.

The Clerk read the title of the resolution.

The SPEAKER pro tempore. The question is on the resolution.

This will be a 5-minute vote.

The vote was taken by electronic device, and there were--yeas 216, nays 214, not voting 3, as follows:
. . .

Mark S. Scarberry
Pepperdine University School of Law

It would be nice, if the courts cared a bit more whether petty little procedural technicalities were fulfilled. You know, like whether there really was a quorum present when a bill "passed" by voice vote? Or whether a bill members were never afforded the oportunity to read was re-written by the leadership after the vote.

There's a world of dirty dealing shielded by that "non-judiciable" business the courts resort to.

Sen. Biden had a nice interview this week, reminding us conference committee has taken to adding provisions present in neither chamber's bill. At least the committee's work product is unitary, vocabule of the month. He adds that the conference committee in very recent years apparently accepts no minority party input, the majority being the sole author of the version of the bill which the conference committee then reports out.

Lots of subtle distinctions in this issue.

I think even Mr. Scarberry's sequence of events raises some interesting questions. I'm sure someone who knows more than me will immediatly know the answer to these questions but I would love to hear it. The general question is what counts as approval of a bill by both houses of congress. As I understand what it says on thomas in order for both houses to approve a bill it isn't enough for them to merely both endorse the same text or indicate their assent. The same (physical?) bill from the conference report must first be in the possesion of one house of congress voted up by that house of congress and then possesion of that bill must be passed to the other house and then voted up by the other house. From what I can tell that didn't happen here.

Also I don't think the passage of HRes 653 saying you endorse bill S. 1932 counts as passing S. 1932. Passing a resolution saying you approve of bill X simply isn't the same thing as actually passed bill X. Besides I think simple resolutions like this are just different sorts of creatures than the bills they talk about but I don't really understand what the point of HRes 653 might be. Maybe it is just an indication of support?

This is all sorta academic as S.Con RES 80 (a concurent resolution endorsed by both houses) was latter passed deeming that the president's signature of S.1932 counts as its valid enactment


As for the earlier discussion of whether something counts as a law if the supreme court refuses to consider a *valid* procedural challenge to the law because it is non-jurisdictable this is kinda a non-question. The word law has two different meanings in this context. There is the standard word law we use in the everyday sense to refer to a rule governing a country in a pragmatic sense. In this sense of the word law there is no question that if the SC refused to hear a challenge and everyone just went around acting like it was a law it would by definition be a law. This is the sense of law that allows us to talk about the laws of a country which exist in direct opposition to its supposed constitution (e.g. a coup occurs but the government still pays lip service to the constitution).

On the other hand there is also the technical term law as defined in the constution. Clearly the use of this term indicates the founders intent that those and only those things which satisfy their technical definition are laws in the normal sense. However, when the founders state that a bill passed by... shall become law they are surely not making a predictive statement about the future stabillity of the US government, e.g. that no one will cease power and leave congress operating but without any real authority. Nor do I think it is appropriate to regard shall as some sort of normative word here, they are not merely saying that anything passed by both houses of congress should become law. If that was the content of the statement it would be acceptable for a judge to rule that indeed bill X *should* have become law according to the constitution but he isn't going to enforce it because it did not in fact become law (not that if failed some subtle condition...but just that the world failed to live up to the constitution's demand that this bill should become law).

I think the only reasonable interpratation is to take the constition to be defining a term of art 'law'. That is the constitution is defining that when we talk about law in a legal/legislative/constitutional sense we *mean* something which has been passed... If we stipulate that the passage of this bill did not in fact meet these constitutional conditions the deciscions of the supreme court are irrelevant. A law in this sense means something that has properties 1,2 and 3 so as a matter of pure logic if it doesn't have one of these properties it isn't a law. If the constitution had said that bills which congress claims to have enacted and the supreme court won't overturn also count as laws things would be different but the constitution says no such thing (implying the SC has the power to make deciscions on law is a different thing).


Finally I also think the SC should get involved in this sort of issue if there ever was a serious problem (not for little fuck ups like this but if there was a real disagreement amoung congressmen about it). Pragmatically I think the SC is better suited to this sort of narrow technical consideration than other branches of government.

As for the worry about exceding their article 3 powers there is a clever workaround. Article 3 grants them jurisdiction over cases ariseing under *laws* of the US where law is still the technical term defined in the earlier section. Hence the court simply has no authority to consider *any* clain brought up about the supposed law at all.

Yes I agree the courts shouldn't strike down this 'law' (nothing to strike down). However, they can just pretend it doesn't exist at all (and hence any actions taken uner it's color that would not otherwise be authorized simply are illegal) and this is arguably what they are required to do and in effect this amounts to the same thing.

Oops that first sentence came out all wrong. I meant to say that there are interesting questions raised by the sequence of events Mr. scarberry points out. Not to imply that we should be surprised what he said inspired interesting questions.

Hmm, sorry for the third post in a row.

On second thought I'm not entierly sure that even without the 'fix it' resolution what happened would not fit the definition of law given in the constitution. Yes the constitution gives each chamber the power to set its rules and procedures but it isn't totally clear to me that the fact that the house might have violated it's internal rules while voting on a bill that it therefore did not pass the bill.

While there is probably some case law on the subject the status of any such deciscion is also unclear. That is are we to understand a 'law' to be defined to be that which the SC decided meet the conditions for passage. Or do we decide that while is is required to abit by the deciscion such a deciscion leaves the definition of law unmodified and only gives pragmatic rules of behavior, e.g., X may actually be a law even though the SC deemed it not to be and we are obligated to respect the consequences of that deciscion.

In other words my last statement may have been a bit hasty.

However, given the extremely vague language in the constitution itself I'm unclear why we should think the prez/congressional leaders violated their oath. All the needed to do was to believe that congress had 'passed' the bill despite a minor clerical error.

That's a bit of a dodge, isn't it, Publius? Labeling an "internal matter" something that makes the difference between "passage" and non-passage, and thus the difference between citizens going freely about their buisness, or being arrested and tried, and jailed? Yes, purely internal to Congress, and of no concern to outsiders....

The fact is, the Constitution makes certain procedural demands, like the quorum requirement. And they are every bit as much "law", as any other part of the Constitution, and the courts are falling down in their duty by not upholding that law.

And it's not even a matter of the preogatives of Congress, but instead of Congressional leaders, who use such techniques to over-ride the will of Congress as a whole.

Comparted to three Senators "passing" a bill on a voice vote, and not recording the absence of a quorum in the Congressional register, what you're complaining of is small beans.

"Sen. Biden had a nice interview this week, reminding us conference committee has taken to adding provisions present in neither chamber's bill."

John, he's not actually trying to pretend that this is some kind of new development, is he? I can recall, as long ago as a decade, a couple of gun control amendments being inserted into year end omnibus bills in committee, and then being voted into law by a Congress whose members were actually assured by the leadership that there WEREN'T any gun control amendments in the bills.

People are rotting in prison due to that "internal procedural matter".

The statement in an earlier comment that S. Con. Res. 80 has been passed by both the House and Senate is a bit premature. Only the Senate has acted on it as of today (Feb. 11). See Thomas. I continue to think that passage of H. Res. 653 constituted House concurrence in the Senate text of the Deficit Act.

Boy, Prof. Lederman sure lives on a different planet than the one I do, since on his planet a statute that all three branches of government plan on enforcing isn't "law."

Of course, this is really the planet Mystification. Prof. Lederman, like most law professors, has political views dramatically at variance with those of his fellow citizens, and he hopes to trick people into granting his political opinions undue respect by calling them "law," thus robing them in a grandeur they could never achieve on their own merits. The strategy doesn't seem to be working so far, but you never know.

Brett, Perhaps you are correct. I recall much more historically than Biden was willing to depict, though he is gearing up a political campaign. May be like the way Frist insists he has unilateral authority to use a simple plurality to change chamber rules on cloture: the truth is in the narrative, ostensibly; then we do our due diligence and history shows quite otherwise. Biden sounded surprised at the tactic and wronged, though. Omnibus has become quite a different vehicle than in much earlier decades. Biden's comment was about the conference committee workproduct. It was on the KHYY interview program, on which he answered questions from a sole interviewer for 45 minutes. I will see if I can locate a transcript, though, if I recall correctly, it is a barebones outlet of NPR and transcripts are not available. I will seek a clarification from the Senator's public relations as well, as they are very efficient.

Oops, thanks for pointing that out. Must have been confused. Thanks for the correction.

The Biden interview transcript is available at the radio station but Biden's office has not replied to my request for a clarification ten days ago. Biden's own site's transcript page is only as recent as January 29, 2006, so there is still hope his people will transcribe that lengthy interview which touched fairly extensively on the law sausage-making process. Above links are all that are available to me at the moment, with regrets to Brett, whose history so far has appeared more precise. I think it is important to trace the interview statements thoroughly, though now nearly a month later dim is the prospect. Maybe next time Glenn Greenwald is in WA-DC, he might add some impetus to a populist request like this.

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