Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All
One of the great things about the Internet is that a blogger with a decent-sized audience can tap the collective wisdom of his readers. This is important because, no matter how smart a blogger thinks he is, collectively, his readers are smarter.
Meaning that, if you’re willing to listen, you can learn something.
In the last 24 hours I learned from my commenters that I have been hoodwinked regarding the constitutionality of a recent bill passed by House Republicans.
Yesterday I engaged in a no-holds-barred rant about the bill, declaring the following language clearly unconstitutional — and anyone who disagreed a moron or a dishonest blind partisan (!):
If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.
My problem with it was that I thought it purported to enact a law without the participation of the Senate or President. Any bill that purports to do that would, of course, be blatantly unconstitutional. And so I ranted and raved about the 221 House Republicans who voted (or so I claimed) for a bill that says the House can make a law on its own, without its being passed by the Senate or signed by the president.
The only problem is, as pointed out by my commenter Milhouse, it actually doesn’t say that.
When Milhouse pointed that out, I went through a three-step stage in reaction:
3. I think you’re right.
Given my initial total contempt for the maneuver I believed was being pulled, it was hard for me to get to Step 3. But I’m there, with the help of Milhouse and others.
Here is the best way I can explain it. We all know that, absent a veto override, a bill must be passed by the House and Senate and signed by the president to become law.* But the final language must read as though it is a law — because, once it goes through the process, it will be. So there is nothing odd at all about a bill having language to the effect “is hereby enacted into law.”
Once you realize that, the next step is to realize that a second bill can incorporate an earlier one by reference — which, when you read this bill closely, is what seems to be happening here (“the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law”).
But has the House ever tried to incorporate another bill by reference and claim it is “hereby enacted into law”? As it turns out, the answer to that question is a resounding “yes.” It has happened — quite often. Confirming this is an excellent blog post by another insightful commenter, MI, who has gathered no fewer than 13 examples. Here are a couple:
There is hereby enacted into law H.R. 3750, as introduced in the House of Representatives on December 11, 1987.
Section 423 of H.R. 1361, as passed the House of Representatives on May 9, 1995, is hereby enacted into law.
MI supplements that post with a comment that sets forth case law that authorizes incorporation by reference using the “hereby enacted into law” language:
The “hereby enacted into law” language has been deemed permissible under the Presentment Clause. See Hershey Foods Corp. v. USDA, 158 F. Supp. 2d 37, 41 (D.D.C. 2001) (“Congress may incorporate by cross-reference in its bills if it chooses to legislate in that manner. Nothing in the Presentment Clause, or elsewhere in the Constitution, demands otherwise.”), aff’d, 293 F.3d 520 (D.C. Cir. 2002). More generally, as noted in a recent GAO letter report, “[l]egislative incorporation by reference is well founded historically and the Supreme Court has accepted it as a legislative tool without objection.” U.S. GOV’T ACCOUNTABILITY OFFICE, B-316010, CONSOLIDATED APPROPRIATIONS ACT, 2008—INCORPORATION BY REFERENCE 9 (2008).
But, but, but … they said the Senate doesn’t have to vote and the president doesn’t have to sign! Except, as Milhouse points out, they didn’t. There is no specific provision in this bill that says the roles of the Senate and president are to be discarded. The only basis for saying this is that “hereby enacted into law” language — language that, again, is commonly used in bills — and which makes sense if you view this as a bill incorporating another bill, whose provisions will indeed be enacted into law if the Senate approves the bill and the president signs it.
Milhouse’s killer point, I think, is this: the bill opens with the traditional language of every bill: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.” That sounds like a bill whose language requires it to follow the normal process to be enacted into law.
Another objection I initially had was shared by Beldar: why re-enact H.R. 1 when it was already enacted? Isn’t Congress assumed not to engage in superfluous acts? And what is the deal with this deadline triggering the bill?
Milhouse had good responses, I thought, in the comments to my previous post. As a political body, the House may have decided to say: if the Senate does not come up with a counter-proposal by a certain date, we are resubmitting our budget. Just to make it crystal clear that WE want to see a budget passed.
Milhouse is right. The House can do that.
Beldar wrote a couple of posts, here and here, arguing that the floor debate shows many Democrats raising the objection I initially raised, that the bill purports to make law without the assent of the Senate and president. Beldar says that, in his view, Republicans did not persuasively rebut these arguments. Beldar put a lot of time into those posts, and they make for interesting reading. After fully considering Beldar’s posts, I have two responses.
First, as quoted at Beldar’s second link, one of the Congressmen did make the exact point that Milhouse and others made here:
There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn’t want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President’s desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.
Look at what he is saying. The Senate will still have to pass this bill. The president will still have to sign it. There is nothing unconstitutional about that.
Beldar complains that the same Congressman mushes up the clarity of this point with other confusing language. Maybe so . . . but that leads me to my second and more important point.
More fundamentally, the constitutionality of the bill cannot depend upon the persuasiveness of the arguments made in floor debates. In fact, as I have argued before, floor debates (and other extrinsic evidence) revealing the subjective intent of legislators cannot be properly used to determine the meaning of a law. I subscribe to Justice Scalia’s view that all such extrinsic evidence must be entirely discounted, leaving the proper interpretation of a law to an analysis of the text, and what that text would mean to a reasonable audience. The subjective intent of any legislator or group of legislators cannot decide the proper interpretation of a law unless that intent is made manifest in the text of the law. Anything else is the rule of man and not the rule of law.
I realize that the above analysis in support of the constitutionality of this bill looks like desperate spinning at first blush. All I can say is: that’s what I thought too. This bill confused a number of lawyers — me, Beldar, and others — I think in part because of the unusual triggering language. Even with my new understanding of the bill, it is difficult to interpret what it says.
Difficult, but not impossible.
So, in less than 24 hours, I have done a complete 180-degree spin in how I view this bill. I retract my previous comments about the Republicans who voted for it, and apologize to them. I thank Milhouse and MI (and others) for their thoughtful analyses — and Beldar for all his thoughtful work and argument, whether he ultimately agrees with me or not. (I admit to being very interested to know whether he will!)
SUCCESS! KIND OF: Adler updates to say I have made a strong case for the bill’s constitutionality. He now seems to take issue only with the wisdom of the measure.