Patterico's Pontifications


Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All

Filed under: General — Patterico @ 9:25 am

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:

2. Hmmmmm…
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!)

I will also be sending this post to those who shared my previous position — Ed Morrissey, Simon Dodd, and Jonathan Adler at Volokh — to see if I can convince them that my current reading is correct.

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.

36 Responses to “Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All”

  1. This is another reminder to be less strident in my opinionating. Because it hurts to rant that hard and have to take it back.

    Patterico (906cfb)

  2. Pat, at least you have the honesty to admit you’re wrong after a hard rant. Lots of bloggers would just entrench themselves, trying to defend their initial position in the face of overwhelming evidence to the contrary. That’s why I respect you.

    Some chump (4c6c0c)

  3. And no you see the difference between a conservative blogger and a liberal blogger.

    The liberal blogger would not only have refused to admit a mistake, he/she would have doubled down and then started smearing anyone who disagreed with him/her.

    The conservative blogger, after going through the process above, chalks it all up to a learning experience and tries harder.

    Of course I never make a mistake and I’m never wrong, so I’ve never done any of this. *wink*

    evilned (8fa39f)

  4. Any chance you have trackbacks from left-of-center blogs for your first post bashing the Republican Congressmen as being blatantly partisan in trying to pass an obviously unconstitutional bill? Can we check to see if those blogs will note your changing stance after receiving more information on the subject?

    I just think it would be an interesting case study to see how certain blogs portray information when it comes from sources with differing viewpoints.

    NJRob (174ea8)

  5. this is all Cap’n Ed’s fault

    happyfeet (a55ba0)

  6. Hell, I was mocking this bill a few days ago. I guess my general lack of confidence in the GOP has made me susceptible to the same mistake Patterico did. I really value the constitutional process, too, magnifying the outrage.

    Good job, Milhouse. And thanks for being honest, Patterico. That’s why you have fans.

    Dustin (c16eca)

  7. Here’s another angle on the resolution:

    By voting for this bill, no Democratic Senator has to vote for, and the President doesn’t have to sign, H.R. 1.

    Oh sure, that’s a “technicality”, but by approving this they can be against the cuts in H.R. 1 both before and after they vote for it, and they never voted for it anyway, they just voted for this “other” bill, which is a really good one, that has some clause those darned Tea Partiers snuck in, so it is really all their fault for tricking those honest, upstanding, forthright, transparent, Democrats.

    I see it as just another procedural trick like the “deemed to have passed” shtick that was played in passing Obamacare.

    Sam (8d527c)

  8. Well done,Patterico.

    What I find perhaps most interesting as I re-read the previous thread is that it kind of reinforced the old saw “if you’re a hammer everything looks like a nail to you”. By that, I mean that the lawyers here from the get-go appeared to come at the situation from a differing start point and first impression than the avowed political junkies did. I’m not casting aspersions at either political junkies or lawyers. It’s just an observation about the lenses people use. (In this case, a plain reading of the words of the bill-versus assuming there must be a (lawful) strategy that informs both the purpose and the wording of the bill and trying to figure out what it is.)

    My own alarm bell went off early in the thread when it occurred to me that there simply seemed to be too many quality and respectable and reputable Republicans voting for this bill for it not to pass parliamentary muster for constitutionality. I reasoned they just couldn’t all be that dumb or clueless. I wanted to learn more. And I did from the postings at the thread.

    The original thread last night about this bill was one of the most informative, thought provoking and well argued on both sides I’ve ever seen on this or any other blog. The absence of trolls and thread jackers made it all the better. Thank you for providing such an open and intelligent forum, Patterico.

    elissa (8a5611)

  9. Elissa, I wholeheartedly agree. something we must all file away for future reference, virtually to a man/woman, those lawyers who make politics their livelihood have rarely if ever actually USED those law degrees for anything. They were merely a stepping stone to their current positions. The same is usually true of staffers who actually draft these laws, they have usually spent their entire legal lives writing law, not practicing it. So when viewing a potential bill/law, it pays to start from a political vs a legal standpoint when trying to get inside their heads.

    Rorschach (c5574d)

  10. Patterico, I want to congratulate you on your honesty and humility, as others have said, this is not the usual course of events in the blogoshpere.

    Rorschach (c5574d)

  11. YOu know, I lightly read the discussion wthat happened here yesterday and I was quite taken with Millhouse. Perhaps I should have said soearlier, but I wasn’t quite up to it. Bravo to Millhouse though, and props to Patterico for admitting he was wrong.

    G (ce0c1b)

  12. Future boilerplate for all Patterico posts:
    “This opinion is infallible. Any correct and contradictory information provided below is hereby incorporated in original.”

    Hmm. Isn’t this official DOJ language?

    Ed from SFV (206325)

  13. It’s probably worth noting that there is a way for a bill to become law without the President’s signature: namely, overriding a veto. Doesn’t happen much, but it’s theoretically possible, which is why no bill would ever include language requiring a presidential signature to become effective.

    Patterico (906cfb)

  14. I added four words to the post (“absent a veto override”) to make that point crystal clear.

    Patterico (906cfb)

  15. The original thread should be recommended reading for classes in US civics, as well as in rhetoric and debate. The way the arguments develop is very interesting, it’s a good case study in exchange-and-reply between two well-educated and articulate camps, and it raises questions that will always be relevant so long as we have the Constitution.

    Hats off to Milhouse for holding his line impressively, to Beldar for his learned arguments, and to Patterico for both trying to make a strong case and then being a complete gentleman.

    If you haven’t already done so, read the amazing exchange of letters between General William Tecumseh Sherman and Confederate General J.B. Hood regarding the evacuation of Atlanta prior to the battle for the city. You can find it reproduced in full in Sherman’s memoirs. One of the best debates I’ve ever read in American history — and they both wrote their arguments in their tents at the front lines in the middle of a war. Should be obligatory in every American classroom.


    d. in c. (6c5d8f)

  16. By the way, speaking of Atlanta, does anybody besides me find their informal motto — “The City Too Busy To Hate” — to be rather alarming? It implies that if only they didn’t happen to be so busy at the moment, hate would be their natural default mode. One of those great failures of language… sort of like the Museum of Tolerance, which implies that Tolerance is long extinct and so we built a museum to preserve its faded memory.

    d. in c. (6c5d8f)

  17. Ditto elissa & Rorschach, in full. I also appreciate the willingness of those with much broader and deeper knowledge of the issue for their accessibility and willingness to lend further perspective to help the layman.

    Dana (9f3823)

  18. All’s fair in the demon pass game.

    snowdrop (7d8afa)

  19. “…So, in less than 24 hours, I have done a complete 180-degree spin…”

    A “180” constitutes a turn, but is there enough rotation for it to constitute a “spin”?

    AD-RtR/OS! (b8ab92)

  20. ‘A “180″ constitutes a turn, but is there enough rotation for it to constitute a “spin”?’

    I would think that rotation about an axis of even 1 degree would constitute ‘spin’. It is the rotation that matters, not the magnitude of that rotation.

    Bugz (22f877)

  21. Well, I’m an old racer, and to constitute a “spin” usually takes at least one full turn of 360-degrees, otherwise it’s just a slide and recovery.

    AD-RtR/OS! (b8ab92)

  22. My own alarm bell went off early in the thread when it occurred to me that there simply seemed to be too many quality and respectable and reputable Republicans voting for this bill for it not to pass parliamentary muster for constitutionality.

    To be honest, vast swaths of the federal budgets and federal statutes passed over the last several decades should never have passed constitutional muster, even when supported by Republicans. And remember that a lot of people being wrong does not mean they are right; it simply means a lot of people are wrong.

    I’ll accept the bill is constitutional, but if it is, that reduces it to something even sillier and nothing more than pure political gesturing.
    I’ll repeat the gist of a comment I made yesterday to explain why it’s a bunch of sound and fury:

    1)the bill declares that if the Senate does not take action by 4/6 on the budget, HR 1 will be enacted.
    2) for the bill to become law, the Senate would need to vote and pass it, followed by presidential signature or veto and veto override, although what Obama would do is irrelevant to the point I’m trying to make.
    3) the Senate voting/passing by 4/6 it would fulfill the requirement for Senate action referenced in step 1.
    4)therefore if the Senate votes on the bill, the bill instantly becomes a piece of worthless paper, whether or not it is formally enacted.

    kishnevi (14ed7d)

  23. Thank you, all, for the compliments. I think this is the most notoriety I’ve had on the ‘net in a long time!

    Kishinevi, I had noticed the paradox you note, but it can be resolved if we parse “a measure” to mean “another measure”. The idea then becomes as this bill’s chief sponsor said, that the Senate pass this bill immediately and send it to the President to become law, but if they get their act together before the deadline and manage to submit some sort of budget proposal of their own, then the referenced provisions will not be enacted. Instead, the two houses can proceed to a conference committee in the usual fashion, and negotiate their differences. Only if the Senate can’t come up with any measure of its own by the deadline will the provisions of HR1 be enacted.

    Milhouse (ea66e3)

  24. Thank you all for the compliments

    Well your a big poopiehead…………just kidding or am i?……….nah i’am.

    DohBiden (984d23)

  25. …Like answers like,
    And measure still for measure.

    — Saint Billy of Stratford

    d. in c. (352bcf)

  26. Over at Volokhs, one of the resident lefties asked whether “demon pass”, as he put it, will now get a retroactive hechsher. And my answer is “no way”. There is a world of difference between (1) what HR1255 does, which is to incorporate by reference the provisions of another document, and enact them into law if certain conditions are fulfilled, and (2) the House passing a resolution agreeing to deem (i.e. pretend) that a referenced bill passed, when it didn’t.

    Supposing the Senate were to pass HR1255 and the President were to sign it, and the trigger conditions happened. That would not turn HR1 into a law. It would merely enact into law the provisions contained in HR1. HR1 itself cannot become a law without being passed by each house, as the constitution provides. “Deem and pass”, OTOH, purports to turn a bill into a law without the House ever voting on it. That cannot stand.

    Milhouse (ea66e3)

  27. Dear Kishnevi (#22): Not quite. Mr Frey makes the same error. Look at Article I section 7, paragraph 2:

    “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

    So The One doesn’t have to sign this bill for it to be a law. He just has to twiddle his thumbs for more than ten days (assuming Congress does not adjourn, which I doubt they will.)

    This may seem like a technicality, but it does open a possibility. For this bill to pass the Senate, Democrats will have to vote for it. If the GOP can somehow steamroll the Senate Dems into doing this, The One is in awkward spot. He can veto the bill, a veto that will almost surely be sustained, given the two-thirds margin needed to override. But if he vetoes it, there’s no budget, the Senate Dems are made to look like fools (a reidculously easy task), and the govt shuts down. The GOP can easily say, Congress did its job, its The One who shut the govt down. Besides not doing anything is the functional equivalent of voting present, a reflex The One has never lost.

    The problem of course is that the Senate Dems are most unlikely to pass this bill. I still think this bill is bad practice for the GOP. It reeks of trickiness in the “demon pass” manner. That sort of game playing is not what the Tea Party is all about, and it shouldn’t be for the GOP either.

    Sincerely yours,
    Gregory Koster

    Gregory Koster (3d16b2)

  28. So…as a technical matter, HR 1255 is constitutional. But, politically: TOTAL FAIL.

    Sure, it appears to have been an attempt at a clever move, “providing cover” for the Senate, making the House position on the budget crystal clear, etc. Maybe even upping the ante by giving the Senate a way to accept HR 1 as fait accompli without actually getting their fingerprints on it, having to propose their own budget, or having to get involved in a political fight during a conference committee. (Or defend a vote “for HR 1” to their nutroots base).

    But…all of that was undone by a single speech by Louise Slaughter. i.e. those hypocritical republicans pretend to care about the constitution, and even made us all read thru it on day 1, but they don’t even know how a bill becomes law.

    Cue Schoolhouse Rock movie clips.

    Sure, Slaughter was lying — or mistaken. But it was an easy lie to believe (or mistake to make): just look — both Patterico and Beldar, two smarty pants lawyers inclined to side with the R’s, fell for the lie (or mistake).

    I’m sure the good intentions of the R’s, and the actual arguments for the constitutionality of HR 1255, were clear to Joe Sixpack when he heard about it on Late Night or the Daily Show.


    BobInFL (bae5a3)

  29. Ahem. BobInFL, we prefer “fancy pants lawyer,” or at least I do.

    Beldar (cd529f)

  30. I completely agree with Bob, pants aside (as usual).

    Dustin (c16eca)

  31. Beldar, it’s possible that you missed this, but (courtesy of Protein Wisdom), Patterico’s official nickname is now “Frumpy Pants Frey”.

    kishnevi (337084)

  32. There was a time in my life when I was known as Poopy Pants, but it was long ago. I couldn’t have been more than in my early 20s.

    Beldar (cd529f)

  33. Beldar,

    I have a new post up which links your post on this topic.


    I have a new nickname for Protein Wisdom: a
    site I no longer read and would prefer not be discussed here.

    It’s not very catchy, but it’s plenty accurate.

    Patterico (9b9b52)

  34. Beldar

    You guys get fancy pants, then the CPA’s who THINK they are lawyers get fancier pants with pleats, you counter with cuffs … and this is why fashion is where it is today

    senseless waste ( or waist?)

    EricPWJohnson (b9728b)

  35. Gregory Koster:

    I am aware of the provision that allows a bill to become law if not signed by the President within the specified person while Congress is in session. I chose not to derail the post with a big detour into what is essentially irrelevant trivia. But in the interest of completeness I will add an asterisk linking to this comment just so everything is completely accurate.

    Patterico (9b9b52)

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