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.
In August 1787 following the submission of the draft by the Committee of Detail, 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 Clause (Article I, Section 7, Clause 2) was defeated, the following day Edmund Randolph proposed a freestanding clause with more exacting language, and the Convention approved it. Even before the posthumous publication of Madison’s Convention record, Justice Joseph Story took 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.” Commentaries on the Constitution of the United States (1833). 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 except the Twenty-first Amendment, 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. 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.
For many decades, Congress attempted to use a simple or concurrent resolution (or, at times, so has even a committee within one house) to “veto” executive actions. Congressional expression of disapproval would not go to the President for his signature or veto. In INS v. Chadha (1983), the Supreme Court invalidated the use of a resolution by one house (or by extension, a concurrent resolution by both houses) to “veto” an executive action as violative of the Presentment of Resolutions Clause.
By the time of INS v. Chadha, there were 295 various types of legislative vetoes in 195 different statutes. Congress initiated the device in 1932, giving President Herbert Hoover the authority to reorganize the executive branch, subject to the approval of Congress. Other versions of the legislative veto became more numerous as the administrative state grew, particularly in the 1940s.
Despite the Chadha decision ruling legislative vetoes unconstitutional, legislative vetoes still occur in pieces of legislation. By one scholar’s count, between the date of the Court’s decision in Chadha and 2005, 400 legislative veto-type provisions had been enacted or instituted. Most of these provisions are informal and concern a power of a committee or subcommittee to require its approval before an executive action may go forward. These kinds of arrangements were not directly addressed by the Chadha case and have continued ever since.
Often, a President will object to a formal legislative veto in a congressional enactment in his signing statement, citing Chadha. Signing statements, however, do not reach “vetoes” that are the result of amicable relationships between members of executive agencies and Members of Congress at the legislative committee and subcommittee levels. An executive agency will agree, for example, not to exceed a budgetary limit except by permission of a particular Congressional committee. As a result, through informal agreements, committees maintain an even stronger veto-type power over executive action. An example of an early informal agreement to allow committee-level vetoes occurred with the “Baker Accord” of 1989, when Secretary of State James Baker allowed certain committees and party leaders the ability to block aid sent to the Nicaraguan Contras.
Some legislation that Chadha purportedly struck down is still seen by some as being legitimate. In particular, many in Congress argue that the War Powers Act of 1973 is still in force, though the central component of the legislation is a legislative veto. After Chadha, there were proposals to change the War Powers Act from a concurrent resolution from both houses that does not require presentment to a joint resolution of disapproval. Those proposals failed.
CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS (MARY COHN ED., 4TH ED. 1991)
LOUIS FISHER, CONG. RESEARCH SERV., RS22132, LEGISLATIVE VETOES AFTER CHADHA (2005), at http:// www.loufisher.org/docs/lv/4116.pdf
Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 TEX. L. REV. 1373 (2005)
David A. Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 VA. L. REV. 253 (1982)
Seth Barrett Tillman, A Textualist Defense of Article 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)
Darren A. Wheeler, Actor Preference and the Implementation of INS v. Chadha, 23 BYU J. Pub. L. 83 (2008)
Hollingsworth v. Virginia, 3. U.S. (3 Dall.) 378 (1798)
I.N.S. v. Chadha, 462 U.S. 919 (1983)