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Saturday, December 02, 2006

The Power To Say What the Law Is, Except When It "Isn't"

I've been meaning to blog for some time now about this summer's controversy over the Deficit Reduction Act (DRA) and the so-called "enrolled bill" rule.  Since I spent much of this week putting together my syllabus for my Constitutional Law I class next semester, which includes Judge Bates's decision in Public Citizen v. Clerk, U.S. District Court for the District of Columbia, now seemed as good a time as ever.

The short version: Apparently, when President Bush signed the DRA into law on February 8, he was signing a bill that passed the House and Senate in different form, in violation of the Bicameralism requirement of Article I, Section 7. Although such a bill might therefore be said to not be a "law" for constitutional purposes, the "enrolled bill rule," created by the Supreme Court in 1892 in Marshall Field & Co. v. Clark, provides that the authentication of an enrolled bill by the Speaker of the House, President of the Senate, and President of the United States is "complete and unimpeachable" proof of the bill's constitutional validity--and the law's concomitant force. That is, so long as the bill is signed by the right three officials, courts may not entertain a claim that the House and the Senate passed different versions of the Act, no matter how conclusive and incontrovertible the evidence is to such effect.

And so, if Marshall Field means what it says, courts cannot entertain challenges to Acts of Congress on the ground that the Act isn't an "Act" in the first place. So, although the federal courts generally have the power to say what the law "is," they lack the power to say that a law "isn't."

(More below the fold...)

To be fair, the modern Supreme Court has refused to extend the "enrolled bill rule" into other contexts. So, for example, the Court in 1990 refused to extend the rule to an Origination Clause challenge to a statute (an argument that a revenue bill unconstitutionally originated in the Senate, as opposed to the House). But in the process, the Court expressed no skepticism with the continuing force of Marshall Field in bicameralism cases, a point on which Judge Bates relied in throwing out Public Citizen's challenge to the DRA. [On November 6, Judge Edmunds (E.D. Mich.) threw out the House Democrats' challenge on similar grounds.]

Especially these days, when recordkeeping is far more sophisticated than it was in 1892, and when it is far easier to determine the subject of various votes in the House and Senate, I wonder if the "enrolled bill rule" remains worth its clear downside.  Judge Bates thinks so, and suggests that many of the policy considerations that motivated the Marshall Field Court could remain today (his defense of the rule is far more sophisticated and elegant than the Marshall Field Court's was...).  But I worry that the result could be disastrous in a case where the repercussions were more than just monetary (as in the case of the DRA). 

If the "enrolled bill rule" is to continue to have full effect, there is simply no means to challenge a statute on bicameralism grounds so long as it is signed by the Speaker of the House and the Vice President. And if Congress subsequently seeks to fix its mistake, but the mistake benefitted the incumbent President, it would need a veto-proof supermajority in both Houses to do so. [For more analysis, see Vik Amar's excellent discussion on FindLaw before the dismissals of the suits challenging the DRA.]

I'm all for giving broad deference to the enrolled bill, and for placing an extremely high burden on plaintiffs to show that the two Houses passed different versions of a bill.  But if that burden can be carried, it strikes me as horrifyingly anachronistic, and potentially dangerous, to deny the courts the power to strike down laws that, for constitutional purposes, simply aren't.

Posted by Steve Vladeck on December 2, 2006 at 02:03 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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This is a very interesting post. A few tentative thoughts for people to consider:
1. Regarding whether the enrolled bill rule is undermined if we have better evidence available today of what "really" passed (because of better technology, organization, etc.): Most of the evidence is still in the control of the House -- its journals and papers, its employees, etc. It seems kind of odd to go looking through all this internal stuff when there is a certification addressed to the outside world -- the presiding officer's signature. The house could expunge its journal. And do we want to call a clerk to the stand to contradict the speaker's signature? The enrolled bill rule is not, I'd say, really a rule about 19th century journals being unreliable. There is a very good case for just going with the presiding officer's official act of attestation.
2. How much of a problem does the enrolled bill rule really create? The situation last year, I'd say, was not a "mistake," or at least not one for the courts to fix. Hastert could have just gotten the House to repass the other version of the bill. So it was really just a "shortcut" that he took. (But what if it wouldn't have passed, you ask? Well, if the majority didn't agree with what he did, they could de-throne him from the Speaker's chair.)
3. If one wanted to make an ex-ante-incentives kind of argument, one would say that the way to make congressional officers more careful in what they certify is to stick them with the enrolled bill. (I'm not sure I agree with this reasoning, but it's worth noting.)
Incidentally, some of these topics -- the enrolled bill rule, the norms/rules/statutes/constitutional provisions governing the details of bicameral passage, etc. -- are addressed in a forthcoming law review colloquy:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=932574 (full text)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=505822 (abstract only for this paper)

Posted by: AaronBruhl | Dec 3, 2006 8:46:53 AM

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