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When Is A Bill Signed By the President Not a Law?:
Marty Lederman has the scoop.
TomJ:
The general rule, the enrolled bill rule, as articulated in Field v. Clark, 143 US 649 (1892), states that the version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it. Therefore, if the version signed by the President included the 13 month language contained in the Senate version, then that would appear to be the law.
2.10.2006 12:02pm
RJL (mail):
It will turn on what the official journals of the house and senate say.

I was actually involved in a somewhat similar case, even though it did not, in fact, happen in my kitchen.

enrolled bills case
2.10.2006 12:05pm
RJL (mail):
Ok, so I don't know how to post a link! I have inserted a space if anyone care to cut and paste.

This case involved changing the word "excluding" to "including" in two places.

At one point during my reasearch I found a case (I don't have the case or the brief at hand right now) in which a court basically said that the inner procedural mechanations of a legislature remain a mystery to the court and probably to most legislators as well. Unfortunately, the quote did not make it into the brief.

http://www.courts.state.nh.us/ supreme/opinions/2005/baine047.htm
2.10.2006 12:20pm
John Lederer (mail):
Speaking from the bench, Judge Hoffman of the ED of Virginia once declaimed a corollary to Bismark's famous quip of "Laws are like sausages, it is best not to see them made" that courts should also be "reluctant to remove the casing once the sausage has been made"
2.10.2006 12:57pm
M. Lederman (mail):
Field v. Clark indicates that the Court won't examine whether the bill is, in fact, a law -- but it also holds that the bill is not, in fact, a law, and that "there is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, nor in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress."

That is to say, just because the courts won't remedy it, doesn't mean that Hastert, et al. have not violated their constitutional oath, and doesn't mean that the bill is, in fact, a law. I've posted a bit more about this as an update to the original post.
2.10.2006 1:05pm
Joshua:
RJL: To post a link, you highlight the text you want in your hyperlink, then click the Link button and enter the URL in the user-prompt box that comes up.
2.10.2006 1:26pm
Justin (mail):
How far does Field v. Clark go? Can Hastart, Stevens, and Bush rule by triumverate? If not, what are the boundaries?
2.10.2006 1:34pm
Moral Hazard (mail):

When Is A Bill Signed By the President Not a Law?

When he's paying by credit card?
2.10.2006 1:45pm
AppSocRes (mail):
I've run across one or two cases where there were slight discrepancies between bills as engrossed and as published in US Statutes and/or US Public Laws. If I remember correctly the final version in time is the defining version. I'm not a lawyer and I don't usually sweat detail like this. Can a conspiracy member provide enlightenment?
2.10.2006 2:15pm
Apodaca:
AppSocRes, the Statutes and the Public Laws are the same (as printed in Statutes at Large, a/k/a "Stat"). The discrepancy sometimes occurs between Stat and the US Code.

Certain titles of US Code have been "enacted into positive law," in which case they are the official law. In other cases, Stat controls in case of a disparity with US Code. There have been a few Supreme Court cases in recent years addressing such anomalies; perhaps others can cite specific examples.
2.10.2006 2:47pm
AppSocRes (mail):
Apodaca: Thanks for the information. You are correct: I was thinking of discrepancies between USC and the Statutes at Large. But I think I also once got involved in a discussion about what was the "official law" when someone noticed a discrepancy between the engrossed version of a bill and the law as it eventually appeared in the Statutes at Large. As someone outside the profession I find these things quite wonderful. That people do worry about technicalities like this helps ensure the rule of law which is a blessed miracle.
2.10.2006 3:09pm
RJL (mail):
Justin: You are right, that is one of the risks, but it is about as real as what would happen if the supreme court made a ruling that people simply ignored. Political pressure, rather than pure law, is the force that prevents the presiding officers from simply doing whatever they please.
2.10.2006 3:29pm
GCallas:
I think Mr. Lederman is being too cute by half. That's like saying that just because a jury found a defendant not guilty, that doesn't mean he's not guilty. Uh, yes it does from the law's point of view. <i>Field</i> says that the signatures of the presiding officers provide conclusive evidence of the bill's language. Therefore, because the presiding officers signed it, <i>the law is valid</i>. You are right to say that it's an evidentiary rule, but the point is that the evidentiary rule is dispositive in the determination of legal validity. This is not an issue of the court refusing to rule on validity; rather, it is an issue of the court limiting the evidence it will consider when it does rule on validity.
2.10.2006 4:19pm
RJL (mail):
I disagree that it is an evidentiary rule. I think it has to do with justiciability, which is a self-imposed limit on the court's jurisdiction caused by judicial respect for separation of powers.
2.10.2006 4:27pm
Justin (mail):
RJL, I suspect much of that political pressure is misplaced.
2.10.2006 4:40pm
Justin (mail):
To clarify, I suspect if Bush utilized this to get around impasses, he would not pay a political price.
2.10.2006 4:43pm
GCallas:
From Field v. Clark: "The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation.... And when a bill, thus attested, has received receives [the President's] approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable." (143 U.S. 649, 672 (1892))

This seems to directly contradict Lederman's argument that it's not a law.
2.10.2006 5:10pm
nunzio (mail):
2.10.2006 11:24pm
Mark Scarberry (mail):
As I posted on the conlawprof list and on Balkinization:

This is a great discussion, but I think it just does not apply to the Deficit Reduction Act of 2005. As I read the information from "Thomas," the House approved the Act (S. 1932) by approving H. Res. 653. That resolution provided that the House concurred in the Senate amendment to S. 1932. The resolution passed 216-214, thus concurring in the Senate version of S. 1932 and allowing the bill to be sent to the President for his signature.

The text that included the mistaken language was not a part of H. Res. 653.

I suppose House members might have been misled as to what the text of the Senate version of S. 1932 was, but they voted to concur in the Senate version. The text of the Senate version (perhaps including the mistaken
language) appears in the Congressional Record immediately following the report of the approval of H. Res. 653, but it does not appear that the mistaken language was part of what was voted on by the House.

It's not that I have nothing better to do than to read the CR. The bill raises (or at least attempts to raise) the filing fee for chapter 11 bankruptcy cases, and I'm citing it in a book that I'm writing. Thus I need to know whether the bill is a law! In fact the bill attempts to amend the wrong subsection of the filing fee provision in 28 U.S.C., but I think the intent is clear enough. (The bill says that "$1,000" in 28 U.S.C. sec.
1930(a)(2) is deleted and replaced with "$2,750," but sec. 1930(a)(2) does not contain the "$1,000" figure; sec. 1930(a)(3) does. I wonder whether Marty Lederman or others think the bill is effective to amend a section of the Code to which it does not refer, but rather the section that it must have been intended to amend.)

Here are relevant materials from thomas.loc.gov, dealing with H. Res. 653:

[Text of H. Res. 653 as passed by the House:]

HRES 653 EH

H. Res. 653

In the House of Representatives, U.S.,

February 1, 2006.

Resolved, That the House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1932) to provide for reconciliation pursuant to section 202(a) of the concurrent resolution on the budget for fiscal year
2006 (H. Con. Res. 95).

Attest:

Clerk.



[Excerpt from Congressional Record regarding passage of H. Res. 653:]


[Page: H68]

---

The SPEAKER pro tempore (Mr. Foley). The pending business is the vote on adoption of House Resolution 653 on which the yeas and nays are ordered.

The Clerk read the title of the resolution.

The SPEAKER pro tempore. The question is on the resolution.

This will be a 5-minute vote.

The vote was taken by electronic device, and there were--yeas 216, nays 214, not voting 3, as follows:
. . .

Mark Scarberry
Pepperdine University School of Law
2.11.2006 11:25am