an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The bill would authorize expenditure of $700 billion, "with $250 billion available immediately and an additional $100 billion released upon [the Treasury Secretary's] certification that funds are needed," and the "final $350 billion is subject to a Congressional joint resolution of disapproval."
That final provision has led some to suggest that the bill would violate the Presentment Clause of Article I the Constitution, because it (allegedly) would be a "legislative veto," i.e., because Congress could cancel the authorization by a vote of both Houses, without the signature of the President.
Not so fast. For one thing, the Supreme Court has never held directly that a two-House (as opposed to the one-House veto declared invalid in INS v. Chadha) is unconstitutional. But it has summarily reversed judgments upholding such two-house vetoes -- see, e.g., United States Senate v. FTC, 463 U.S. 1216 (1983) -- and so it's quite likely that such two-House vetoes would be held invalid, at least on the assumption that the appropriation here (or its withdrawal) would have "the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch," Chadha, 462 U.S. at 952.
More to the point, however, there's no reason to think that this bill will include a two-House veto. The agreement on principles refers to the $350 billion being subject to a "joint resolution of disapproval." A joint resolution -- as opposed to a "concurrent" resolution -- is a variant of a plain ol' law: it's presented to the President for his signature, and does not become effective without that signature (or a veto override by two-thirds of both Houses).
Thus, all that the agreement on principles seems to be indicating is the fairly unremarkable proposition that if Congress passes a subsequent law withdrawing the appropriation for the final $350 billion, that later-enacted law will govern. No constitutional problem there.
(NOTE: The reference to the joint resolution might suggest that the drafters are intending to impose some sort of fast-track procedure within Congress, e.g., requiring an additional up-or-down vote on the final $350 billion, perhaps without some of the usual procedural prerequisites. But, if so, the result would nonetheless be a law presented to the President.) Posted
by Marty Lederman [link]