Presentment of Resolutions
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.Article I, Section 7, Clause 3
During the Constitutional Convention, James Madison noted that Congress could evade the possibility of a presidential veto by simply denominating a "bill" as a "resolution." Although his motion to insert the words or resolve after the word bill in the Presentment of Resolutions Clause was defeated, the following day Edmund Randolph proposed a freestanding clause with more exacting language, and the Convention approved it. Justice Joseph Story, writing prior to the posthumous publication of Madison's Convention record, in his Commentaries on the Constitution of the United States, appears to have taken a view similar to Madison's: "[C]ongress, by adopting the form of an order or resolution, instead of a bill, might have effectually defeated the president's qualified negative in all the most important portions of legislation." Nearly all commentators have agreed with that interpretation.
Nonetheless, not all resolutions of Congress require presidential approval because not all are intended to be law. Generally, joint resolutions do require presentment to the President as they are designed to have the force of law. They differ from bills only in that they usually deal with a single subject, such as a declaration of war. Congressionally proposed amendments to the Constitution are also styled as joint resolutions, but they are not presented to the President. Under the form of the amending process in Article V that has been followed in all cases, Congress proposes and three-quarters of the legislatures of the several states approve. Thus, no presidential involvement is necessary for a joint resolution proposing an amendment to the Constitution. Hollingsworth v. Virginia (1798).
Concurrent resolutions, passed by both Houses, apply only to subjects affecting the procedures of both houses, such as fixing the time for adjournment, or to express "the sense of the Congress" on an issue of public policy, or to set revenue and spending goals. Simply put, concurrent resolutions are not "law" and are not presented to the President. Similarly, simple resolutions (sometimes just known as resolutions) do not have the force of law and apply only to the operations of a particular branch of Congress dealing with its internal procedures, imposing censure on a Member, setting spending limits for particular committees, or expressing the viewpoint of one House on a public issue. A bill of impeachment passed by the House of Representatives could technically be seen as in the form of a simple resolution (as might also be Senate approval of treaties and presidential appointments), although it may not officially be designated as such. The Senate's resolution to convict is similar. In I.N.S. v. Chadha (1983) the Supreme Court invalidated the use of a resolution by one House (or by extension, a joint resolution by both Houses) to "veto" an executive action as violative of the Presentment of Resolutions Clause.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law