BURNING DOWN THE HOUSE (AND SENATE): A PRESENTMENT REQUIREMENT FOR LEGISLATIVE SUBPOENAS UNDER THE ORDERS, RESOLUTIONS, AND VOTES CLAUSE
Gary Lawson
Boston University School of Law Working Paper 04-07
The Constitution's Orders, Resolutions, and Votes Clause,
U.S. Const. Article I, Section 7, Clause 3, requires presentment to the
President of 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) . . . before the Same shall take Effect. The
conventional wisdom, bred more than 200 years ago by James Madison, holds
that this clause simply prevents Congress from evading the presentment
requirement for bills in Article I, Section 7, Clause 2 by labelling legislative
action something other than a bill. Seth Tillman, however, argues in a
forthcoming article that the clause imposes a presentment requirement
on single-house action taken pursuant to prior bicameral authorization.
See 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 Decided, http://ssrn.com/abstract=475204.
Mr. Tillman is likely correct, but he does not clearly identify the classes
of single-house action to which this provision might refer. I elaborate
on Mr. Tillman's important work by arguing that the most significant,
and perhaps the only, single-house actions subject to this clause are
the issuance of legislative subpoenas. Neither house of Congress has an
enumerated power to issue such subpoenas, but bicameral authorization
for their issuance could come from legislation under the Sweeping Clause
of Article I, Section 8, clause 18. On this understanding, the Orders,
Resolutions, and Votes Clause then requires each subpoena to be presented
to the President for signature or veto before the Same shall take Effect.
This presentment requirement for subpoenas makes sense as a matter of
both text and structure.
Keywords: orders, resolutions, votes, presentment, subpoenas
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Gary S. Lawson Contact Information
glawson@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-8747
Presentation and Publication Information:
SSRN location:
Lawson, Gary, "Burning Down the House (and Senate): A Presentment
Requirement for Legislative Subpoenas Under the Orders, Resolutions, and
Votes Clause" (June 14, 2004). http://ssrn.com/abstract=556789
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