The Orders, Resolutions, and Votes Clause, Constitution Article 1.7.3

I took some time off from Constitutional study to work on the administrative side of my blog (see my pretty new URL?) and watch the entire Marvel cinematic universe while my kids were home on break.

The Constitution can’t defend itself, and we can’t defend it either if we don’t know what it says. So lets get back to the articles. Last time I learned about Article One, Section 7, Clause 2, which described how a bill becomes law. Next up: Article One, Section 7, Clause 3.

Article 1 §7.3, the Orders, Resolutions, and Votes Clause, also fondly referred to as the ORV Clause (no really, read page 152 of the Annotated Constitution if you don’t believe me) reads as follows:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Let’s break this down. Last time we saw that bills have to be approved by both houses of Congress before becoming law. Now we see that there is another step. Once both houses have approved a bill, the bill goes to the president for approval. If he approves, it’s a law.

If the president won’t sign a bill, there is still a chance for it to become law. If Congress holds another vote, and approves the law by a two thirds majority in both houses, they can override the president’s veto.

That seems like a fair and elegant process to me. But often legal topics are only straightforward on the surface. Is this one of those times? Well, yes, there is some case law relating to this clause.

What Isn’t Said

It appears that this clause on the presidential veto occasions discussion of the congressional, or legislative, veto, which was a thing Congress did for much of the 20^th century. It was found unconstitutional (what with it not being in the Constitution) and is no longer practiced. But apparently it’s not completely dead, because Congress has used a variety of shenanigans to since the mid-1980’s to accomplish its own version of a veto, and not all of those have been legally addressed. In fact, there’s an entire 83-page article (short book?) dedicated to the implications of ORV: Seth Barrett Tillman’s A Textualist Defense of Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005). I am not going to take that deep dive, but if you choose to read it, you can guest post on my blog anytime.

Procedural History of Article 1 §7.3

First up, you may have noticed that the clause doesn’t say how the president approves a law. In 1868, Gardner v. The Collector determined that the president merely needs to sign the bill presented to him. He does not need to write “Approved” on it or even mark the date.

However, dating the signature is a good idea, since the bill becomes law on the date of its approval by the president. (There is some extremely wonky case law relevant to this fact as well, but the Annoted Constitution p.149 footnotes have left a wily trail that I just don’t have the energy to track down today.)

In 1899, the case La Abra Silver Mining Co. v. United States determined that Congress did not have to be in session when the president signs a bill into law.

In 1932, Edwards v. United States determined that the president has ten days to sign a bill after it is presented to him.

History of Presidential Veto Power

Of much greater interest than these procedural details is the president’s power to veto. This is an important check on Congressional power, and there have been cases to test how the veto affects the balance between the two branches.

According to Wright v. United States, on the one hand is the concern that “the President shall have suitable opportunity to consider the bills presented to him.” This is partly covered by 1 §7.2, which says bills which the president does not approve shall not become law if the adjournment of the Congress prevents their return. On the other hand, Congress should have appropriate opportunities to consider the president’s objections to bills and potentially pass them over his veto.

The real potential for sneakiness, however, comes in the form of omnibus bills and riders. The omnibus rose to popularity in the 1980’s, when Congress started lumping all the appropriations for the operation of government into one gargantuan bill, which the president had to approve or veto in total. Presidents since Grant (18) have tried to get a line-item veto, but so far with no luck – Clinton (42) briefly won the power, but SCOTUS took it back.