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one draws from the history with respect to the content of bills in the early days in problematical.

Again, to say all this is not to say that Congress may not define the word “bill" so as to make it possible for the President to veto separate parts. But it is to say that one can draw little support from the meaning of the word in the Framers' day or in the first congressional practice and its growth. To enact such a provision raises the same constitutional objections we set out above and requires the same kind of analysis in terms of the express provisions of the veto clause and the implicit constraints upon enlargement of the President's legislative role.

At a more mundane level, it may also be suggested that to adopt. this approach would probably have little practical effect upon lawmaking and the President's veto, should Congress continue to follow the course it has followed over much of our history. This thought emerges from a consideration of what Congress would be doing, should it define "bill" for purposes of the veto clause. It could enact legislation or it could amend its rules. Either way, of course, it is prescribing a rule to govern its internal procedures, to govern how the legislation it passes is to be treated for purposes of presentation to the President. But whether embodied in its rules or in legislation, the procedures of Congress are always subject to alteration by that Congress or a future one without formal repeal of the provision.160 For example, although both Houses of Congress have rules against legislation on appropriations bills (and although the Supreme Court entertains a presumption against finding repeals or alterations of substantive law in appropriations measures),161 "[t]here can be no doubt that . . . [Congress] could accomplish its purpose by an amendment to an appropriations bill.

." 162 "The whole question depends on the intention of Congress as expressed in the statutes." 163 In other words, if Congress disregards a rule, the courts will enforce the result; a law is no less a law because a self-limitation was dispensed with. Of course, such a rule may give rise to a point of order during consideration, but that too is subject to a majority override.

It will be noticed upon a close reading of Congressman Sumners' opinion that he accepts all this. Immediately upon the sentence last quoted above to the effect that Congress should specify which parts of a bill the President may consider separately and which not, he adds: "Otherwise, we would have a situation under which the President could cut away parts of a bill, leaving as the law an incomplete item of legislation which the Houses of Congress would not have approved in that form as an original proposition. The Houses of Congress must have control over legislative processes in order that the people may hold them to full responsibility for the results of legislative processes." Obviously, if Congress is in full control, it could pass as separate bills the items which it did not

160 See 88 Stat. 331, § 904(a)(2), 2 U.S.C. §621 note (reservation and understanding of power to alter rules embodied in statute at any time).

161 Minis v. United States, 15 Pet. (40 U.S.) 423, 445 (1841); TVA v. Hill, 437 U.S. 153, 190-191 (1978).

162 United States v. Dickerson, 310 U.S. 554, 555 (1940).

163 United States v. Mitchell, 109 U.S. 146, 150 (1983). See also United States v. Will, supra,

221-222.

wish to have considered together. Usually, however, for one reason or another, it wants disparate items considered together.

Additionally, it may be noticed that as so construed, the Woodrum amendment quoted above, was not in line with the Sumners' opinion on the constitutional form of an item veto and, as noted above, seems not to have been an item veto at all.

Thus, it appears that achieving an item veto by redefining the word "bill" would, if effectual, be subject to the same constitutional arguments that could be made against any statutory item veto. On the other hand, because of its susceptibility to total congressional control, it may well be a wholly ineffectual way of reaching an item veto result.

Conclusion

To enact an item veto by statute requires that Congress confront fundamental questions of separation of powers. While the branches are not tightly sealed off from each other, they are presumptively restricted to the exercise of their respective functions, save to the extent that the Constitution itself melds them, as in the creation of a legislative role for the President through the veto. The precedents seem to indicate a Supreme Court hesitancy to find an enlargement of the role of one branch in another beyond that expressly provided, the Chadha legislative veto decision being only the latest example.

If this reading be the correct one, a statutory item veto would face a substantial textual barrier in view of the wording of the two clauses governing presentment. An item veto would enlarge the President's legislative role. Moreover, enlargement of that role would appear to raise the balancing standard of a potential disruption of the functions of Congress, necessitating a close scrutiny of the justifications for it. Both methods of accomplishing a statutory item veto are subject to these constitutional arguments. Each additionally may raise problems unique to each, the delegation alternative being the unusual nature of the delegation outside the execution of the laws and the definitional approach being the lack of historical support for the view that the Framers considered a "bill" to be anything other than what Congress chose to place in one document. Further, the definitional approach raises questions of effica

cy.

Finally, none of the foregoing is addressed to the policy issues surrounding the desirability of the item veto. The possible consequence of its institution were touched on occasionally to develop a constitutional argument. But, as the Court observed in INS v. Chadha, "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." 164 Neither, it may be added, would the view that a measure would be inefficient, inconvenient, or harmful justify the raising of constitutional objections, in the absence of plausible grounds. Thus, the foregoing limits itself strictly to an attempt to understand and to apply the often amorphous standards of the separation of powers doctrine.

164 INS v. Chadha, supra, 2780-2781.

CHAPTER IV. PROCEDURAL QUESTIONS

The Constitution requires the House to which a vetoed bill is returned "to proceed to reconsider it," 1 but each House determines by its rules the procedure for such consideration.2 As Speaker Gillett said:

If there is a constitutional mandate, the House ought by its rules to provide for the proper enforcement of that mandate, but it is still a question for the House how and when and under what procedure it shall be done, and a constitutional question, like any other, ought to be decided according to the rules that the House has adopted. 3

If Congress were to grant the President authority to veto items, would changes in House rules and practices be necessary? The procedural implications of an item veto have been largely ignored. The purpose of this section is to indicate that practices designed for reconsideration of vetoed bills may not be neatly applied to vetoed items. The first part of this section explains existing procedures for reconsideration of vetoed bills, emphasizing practices in the House. The second part of the section suggests that further consideration should be given to procedural changes if the President is granted item-veto authority.

RULES AND PRECEDENTS CONCERNING RECONSIDERATION OF VETOED

BILLS

RETURN OF DISAPPROVED BILLS

4

If the President disapproves a bill, he returns it with his objections to the House in which it originated.5 The Clerk of the House and the Secretary of the Senate have been authorized to receive messages from the President, including messages expressing disapproval of bills, during adjournment of the two Houses.6 The Clerk of the House is authorized to receive messages from the President and from the Senate at any time the House is not in session. Formerly, this authority was granted by concurrent resolution. Standing authority for the Clerk to receive messages was added to the Rules of the House in the 97th Congress.8

The House to which a bill is returned with the President's objections must enter the objections on its Journal.9 A veto message re

1 U.S. Const. art I, § 7.

2 Clarence Cannon, 6 Cannon's Precedents of the House of Representatives of the United States § 48 (1936) (hereafter Cannon's Precedents).

[blocks in formation]

6 Lewis Deschler and William Holmes Brown, 37 Procedure in the U.S. House of Representatives, § 8.7-8.8 (1982) (hereafter Deschler's Procedure).

7 Clause 5, Rule III of the Rules of the House of Representatives, 99th Congress.

8 Clause 5, Rule III was added by H. Res. 5, see 127 Cong. Rec. H5 (daily ed. January 5, 1981). 9 U.S. Const. art I, §7; see also Asher Hinds, 4 Hinds' Precedents of the House of Representatives §§ 2726, 3520 (1907). (hereafter Hinds' Precedents).

ceived from the President supersedes the regular order of business and a veto message received in one House by way of the other is considered as if received directly from the President.10 The veto message is laid before the House by the Speaker, read, and included in the Journal.11 If the House receives the message directly from the President, the Speaker usually orders the veto message to be printed as a House document.

The Speaker lays a veto message before the House on the same day it is received, though he may not lay it before the House in the absence of a quorum. 12 It is within the Speaker's discretion to determine the specific time, on the day of receipt, at which a veto message is laid before the House. The Speaker may not defer it to a later day, however, except by order of the House, 13

A veto message is read before the bill is reconsidered. 14 The bill itself may be read by unanimous consent only.15 Other documents, even those referred to in a veto message, are not read or entered on the Journal except by unanimous consent.16 A veto message may not be read in the absence of a quorum, even though the House is about to adjourn sine die.17

RECONSIDERATION IN THE HOUSE

Usually a vetoed bill is read and considered at once. 18 The consideration of a veto message is a matter of the highest privilege; it may interrupt consideration of a conference report if the previous question has not been ordered. 19 Consideration may take the form of debate and vote on the returned bill immediately after the veto message has been read. The constitutional mandate "to proceed to reconsider," however, does not preclude unanimous consent requests or ordinary motions in order when a question is under debate in the House.20 Motions in order under the rules of the House of Representatives (in order of precedence) are: to adjourn, to lay on the table, for the previous question, to postpone to a day certain, and to refer.21 These are discussed below.

10 Hinds' Precedents § 3537 (1907, and 7 Cannon's Precedents §§ 1103, 1109 (1936).

11 24 Deschler's Procedure § 15.1 (1982).

12 7 Cannon's Precedents §§ 1094, 1103 (1936).

13 7 Cannon's Precedents § 1104 (1936).

14 7 Cannon's Precedents § 1105 (1936).

15 7 Cannon's Precedents §§ 1106-7 (1936).

16 7 Cannon's Precedents §§ 1108 (1936). The House may grant a unanimous consent request to have accompanying documents read.

17 4 Hinds' Precedents § 3522 (1907).

18 4 Hinds' Precedents §§ 3534-3536 (1907); 7 Cannon's Precedents 1094-95 (1936). Because it is constitutionally mandated, reconsideration of a vetoed bill even takes precedence over business in order on Calendar Wednesday. A bill privileged by the rules of the House, e.g.; a general appropriation bill, cannot be called up on Calendar Wednesday (7 Cannon's Precedents § 932 (1936)). Because a vetoed bill is privileged under the Constitution, it is in order to consider a vetoed bill on Calendar Wednesday (7 Cannon's Precedents § 912 (1936)).

19 24 Deschler's Procedure § 15.7 (1982).

20 7 Cannon's Precedents § 1105 (1936); see also, 4 Hinds' Precedents §§ 3523, 3542-47, 3549-50 (1907) and 7 Cannon's Precedents §§ 1101, 1103, 1105, 1108, 1112-1114 (1936).

21 Clause 4, Rule XVI of the Rules of the House of Representatives, 99th Congress. See also, 7 Cannon's Precedents §§ 1100, 1105 (1936). Note also 24 Deschler's Procedure § 15.8 (1982): If the Chair has not yet stated the question on overriding the veto to be pending, then the motions to lay on the table, to postpone to a day certain, or to refer take precedence over the question on reconsideration and the motion for the previous question thereon.

Vote and debate

When the veto message is laid before the House the question on passage is pending and a motion from the floor is not required.22 The form of the question now in use is: Will the House, on reconsideration, pass the bill, the objections of the President to the contrary notwithstanding? 23 Debate on the question is under the hour rule. 24 The Speaker ordinarily recognizes the chairman of the committee (or subcommittee) that reported the bill to control the hour.25 On October 25, 1983, the House reconsidered the bill, H.R. 1062, to authorize the Secretary of the Interior to convey certain lards in Lane County, Oregon, which the President had returned to the House.26 The Speaker pro tempore recognized Representative Udall, Chairman of the Committee on Interior and Insular Affairs, to control the hour:

The SPEAKER. The question is, Will the House, on reconsideration, pass the bill, the objections of the President to the contrary notwithstanding?

The SPEAKER pro tempore (Mr. SCHUMER). The gentleman from Arizona (Mr. UDALL) is recognized for 1 hour.

Mr. UDALL. Mr. Speaker, I yield myself such time as I may consume.

The Constitution requires that the vote to pass a vetoed bill on reconsideration must be determined by the yeas and nays and the yeas and nays must be entered on the Journal. 27

If two-thirds of the House to which a vetoed bill is returned agree to pass it, and then two-thirds of the other House also agree, it becomes a law. 28 The two-thirds vote required to pass the bill, notwithstanding the President's objections, is two-thirds of the Members present and voting, not two-thirds of the total membership.29

A motion to reconsider the vote on passage of a vetoed bill is not in order. 30

It is the practice for one House to inform the other by message of its decision, whether it sustains the President's veto or overrides it.31 If both Houses override the President's veto, the last House to act transmits the bill to the Archives. 32

Motion to adjourn

A motion to adjourn has the highest precedence when a question is under debate and the motion is in order when a veto message is under consideration.33 The motion to adjourn has been held in

22 7 Cannon's Precedents §§ 1097-1100 (1936).

23 24 Deschler's Procedure §§ 15.3-15.4 (1982); see also 4 Hinds' Precedents §§ 3534 footnote 2, also §§ 3535-6 (1907) and 7 Cannon's Precedents § 1103 (1936).

24 24 Deschler's Procedure §§ 17.4-17.5 (1982).

25 24 Deschler's Procedure §§ 17.1-17.3 (1982).

26 129 Cong. Rec. H8584 (daily ed. October 25, 1983).

27 U.S. Const. art I, §7; see also, 4 Hinds' Precedents §§ 2726, 3520 (1907) and 7 Cannon's Precedents § 1110 (1936).

28 U.S. Const. art I, § 7.

29 4 Hinds' Precedents §§ 3537, 3538 (1907) and 7 Cannon's Precedents § 1111 (1936); see also, Missouri Pacific Railway Co. v. Kansas, 248 U.S. 276(1919).

30 5 Hinds' Precedents § 5644 (1907) and 8 Cannon's Precedents § 2778 (1936).

31 4 Hinds' Precedents §§ 3539-41 (1907); see also, 24 Deschler's Procedure § 18 (1982).

32 William Holmes Brown, comp., Constitution, Jefferson's Manual and Rules of the House of Representatives of the United States § 109 (1983) (hereafter House Rules and Manual).

33 Clause 4, Rule XVI of the Rules of the House of Representatives, 99th Congress; House Rules and Manual § 783 (1983); 8 Cannon's Precedents § 2641 (1936) 37 Deschler's Procedure § 5.1 (1982).

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