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Rolled by the "Enrolled Bill" Rule:

Yesterday the U.S. Court of Appeals for the D.C. circuit turned away Public Citizen's challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.

The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards, upheld the district court's holding that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that "the judiciary must treat the attestations of 'the two houses, through their presiding officers' as 'conclusive evidence that a bill was passed by Congress.'" Once a bill is signed by the leaders of the House and Senate, it is an attested "enrolled bill" that "should be deemed complete and unimpeachable" for purposes of the Constitution's bicameralism requirement. This "enrolled bill" rule precludes the sort of challenge Public Citizen sought to advance. Public Citizen sought to distinguish its case from Marshall Field in various ways, or suggest that the decision had been tacitly overruled, but the D.C. Circuit rejected these arguments.

One interesting aspect of the court's ruling is it's conclusion that the enrolled bill rule presents a threshold question that may be resolved before concluding that the court has jurisdiction to hear the claim in the first place. Therefore, the D.C. Circuit concluded, it could dismiss the case under the enrolled bill rule before determining whether Public Citizen had standing to challenge the legality of the DRA in the first place. According to the court, it "is not obliged to decided jurisdictional issues before certain nonjurisdictional rules designed not merely to defeat the asserted claims, but to preclude judicial inquiry." In this case, the enrolled bill rule established by Marshall Field is "a non-merits threshold ground for dismissal."

Also interesting to note are the two rationales for the enrolled bill rule established in Marshall Field: separation of powers and the need for certainty in "the statute laws of the land." The Court rejected the idea that the judiciary should challenge the validity of laws that the two political branches attest were passed in accordance with the relevant constitutional requirements. Such a "spectacle" would subordinate" the legislature to the judiciary and "disregard" its coequal position in the government. Moreover, it could lead to unnecessary uncertainty in the law.

Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act . . . should at any and all times be liable to be put in issue and impeached . . . . Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.
Thus, an enrolled bill attested to by the Congressional leadership is itself "conclusive evidence" that it was passed by Congress and "the enrollment itself is the record, which is conclusive as to what the statute is."

M. Lederman (mail):
Jonathan: I wrote about this back when the "bill" was signed. What's interesting to me about this, as I wrote, is that it's a fascinating test case of the Constitution "outside the courts."

The rationale of the Marshall Field rule is that, for reasons of comity and practicality, the courts ought to apply a strong presumption that the political branches have acted in good faith -- that we should trust that the signatures of the Speaker, President Pro Tem and U.S. President as conclusive proof that the constitutional requirements were, in fact, satisfied. And the Court does so because it assumes those officials are acting in good faith, and in accord with their constitutional oaths.

But once the Court announced that it would stay out of such questions, that decision itself eliminated all (practical) incentive for the political actors to take their constitutional oaths seriously. They quickly moved from "it's not justiciable" to "it doesn't matter whether the House and Senate voted on the same bill." And so it was only a minor step to where the Speaker and President Pro Tem provided an attestation that they knew to be fraudulent, and the President signed the bill, even though they all knew the bill was not a law in the Constitutional sense -- all because they understood that they could "get away with it."
5.30.2007 12:16pm
Eli Rabett (www):
OK, so there are substantive differences. Which bill is law?? This sounds like the lawyers full employment act.
5.30.2007 12:23pm
Milhouse (www):
So last year, what was to stop Hastert and Cheney from bypassing Congress altogether and simply sending a bill to the President claiming that it was passed?

In NY State we have effectively government by a triumvirate: Spitzer, Silver and Bruno. The three of them negotiate in a room, and the Assembly and Senate rubber-stamp whatever Silver and Bruno tell them to, sight unseen. But at least they do have to hold votes. Under this doctrine they don't even need to do that. All they have to do is declare that the votes were held.
5.30.2007 12:35pm
jimbino (mail):
Shouldn't original posers be required to use a spell-checker?
5.30.2007 12:52pm
Jonathan H. Adler (mail) (www):
Marty --

Thanks for noting your prior post.

One thing that is interesting here is that the Marshall Field opinion explicitly acknowledges the possibility of bad faith attestation, and considers that risk to be less than that caused by the legal uncertainty that could be generated were such challenges allowed.

The Court confronted a similar trade-off in the Walter Nixon impeachment case, when it held that claims that Senate procedures did not constitute a "trial" as required by the Constitution were non-justiciable. Justice Souter's concurrence suggested that a bad faith proceeding, such as an impeachment by coin toss, would be reviewable by the courts, but I've always read the Rehnquist majority opinion as suggesting otherwise.

I am not sure whether the Marshall Field enrolled bill rule of dismissal is correct, but I do not find the possibility that the rule allows unconstitutional actions by political actors to escape review to be dispositive. Judicial review has its own drawbacks and I believe there is a set of cases in which the Constitution should remain "outside the courts" despite this risk.

JHA
5.30.2007 1:14pm
Steve:
Prof. Lederman is right that the Court handed out a sort of free license to act in bad faith. However, I think it's always an open question how much bad faith would really be tolerated.

Consider what happened here: the House and Senate passed two different bills, different because they contained two different dollar amounts in one spot. The Republican leadership knew that that one specific dollar figure hadn't made any real difference in getting the bill passed, but that it had been a tough vote nonetheless and they really didn't want to hold a new vote and face the possibility of defections. So instead, they just signed a false attestation that the House and Senate had passed the same bill, and the President, either not knowing or not caring, signed it into law. I don't think there's any reasonable dispute that the attestation was false and knowingly so.

But you could easily imagine a scenario with far worse bad faith than that. Let's say Nancy Pelosi and Harry Reid sign an attestation falsely claiming that the House and Senate have passed a bill to nationalize health care, even though the bill was never even considered by Congress, and President Hillary Clinton signs it into law. Would the courts really stay out of the issue, even if it was this bad?

If they wanted to, I'm sure the courts could manufacture some distinction that would distinguish the previous cases where the bad faith wasn't so blatant. On the other hand, maybe their thinking is that if the bad faith is this clear, there's going to be a political remedy (like impeachment), and thus maybe they should just steer clear rather than issue a decision that might just be ignored.

Very interesting fact pattern and case. One thing should be obvious: Judge Harry Edwards is no GOP-enabling hack!
5.30.2007 1:26pm
Jonathan H. Adler (mail) (www):
Steve --

Good points. You are absolutely correct about Judge Edwards. Note also that he was joined in his opinion by two Clinton appointees, Judges David Tatel and Merrick Garland.

JHA
5.30.2007 1:35pm
Scaldis Noel:
Eli Rabett, I had essentially the same question you had, "so which version is law?"

The D.C. Circuit opinion addresses the issue specifically. The Senate version, which was sent to the President and which he signed, is the version that is law. The clerical error was that when the bill was sent from the Senate to the House, "13 months" was changed to "36 months" in a provision related to timeframes for Medicare payments for medical equipment. That is clearly substantive to how the law is applied.

However, while the versions approved by the House and Senate are substantively different, it does seem reasonable to me that because the intent of the House and Senate was to vote on the identical version of the bill, and the version agreed upon in conference committee was sent to the president, that it is a reasonable decision.
5.30.2007 1:37pm
Guest101:
How is the "legal uncertainty" created by judicial review of the procedural validity of a law any greater than that created by review of its substantive constitutionality? It seems to me that the question whether the same version of the bill was passed by the House and Senate is a much simpler one, the resolution of which is therefore far less uncertain, than the question whether a given piece of legislation violates the Court's complicated constitutional doctrines. If we're going to accept the latter kind of judicial review, I see no good reason not to accept the former.
5.30.2007 2:10pm
NaG (mail):
I would think that two houses of Congress passing different versions of the same bill would be creating the "unnecessary uncertainty" in the first place.
5.30.2007 2:11pm
Dave N (mail):
I would note something that no one else has commented upon: Marshall Field is Supreme Court precedent. Just because the Supreme Court decided the case over a hundred years ago does not give a Circuit Court of Appeals license to disregard it.

For some of the hypotheticals mentioned (Milhouse suggeted Republican skullduggery, Steve made it bipartisan by suggesting Democrats acting in bad faith in the future), the answer is simple: the backstop is the Supreme Court itself. It certainly has both the power and the authority to overrule or modify Marshall Field should it decide to do so.
5.30.2007 2:23pm
CrazyTrain (mail):
Dave N -- Everyone in this thread has agreed that the DC Circuit did the right thing by following Supreme Court precedent. So your comment is not very interesting, and in fact presupposes that you are dealing with a commentariat not as enlightened as the general commentariat here who would be expected to understand how our judicial system works. The question we are discussing here implicitly is whether the Supreme Court should revisit htat holding, which it most assuredly has power to do and this case would present it with the opportunity to do so (however, I would bet dollars to donuts that cert will be denied without comment -- these types of issues do not seem to interest anyone on the Court. The Warren Court liked this stuff however (See Adam Clayton Powell case)).
5.30.2007 2:32pm
CrazyTrain (mail):
Dave N -- Everyone in this thread has agreed that the DC Circuit did the right thing by following Supreme Court precedent. So your comment is not very interesting, and in fact presupposes that you are dealing with a commentariat not as enlightened as the general commentariat here who would be expected to understand how our judicial system works. The question we are discussing here implicitly is whether the Supreme Court should revisit htat holding, which it most assuredly has power to do and this case would present it with the opportunity to do so (however, I would bet dollars to donuts that cert will be denied without comment -- these types of issues do not seem to interest anyone on the Court. The Warren Court liked this stuff however (See Adam Clayton Powell case)).
5.30.2007 2:32pm
AskWhy:
Presumably the same result would obtain if the plaintiff was a Member of Congress or Senator. But what if one house of Congress determined that the bill was wrongly passed? Or the presiding officer of such house determined that (s)he made an error in certifying a bill?
5.30.2007 2:36pm
Mark Field (mail):
Those who wonder how far the courts will go in upholding dubious legislation might want to take a look at Planned Parenthood v. Swoap, 173 Cal. App. 3d 1187 (1985).
5.30.2007 4:35pm
Eli Rabett (www):
Thanks Scaldis, should have read the opinion myself.
5.30.2007 4:47pm
Dave N (mail):
Crazy Train--

Duh!! I never would have figured that out.

I was commenting specifically on at least two posters, who thought, well, maybe skullduggery would allow something malevolent to be enacted on the say so of the President, Speaker of the House, and President of the Senate. Perhaps I was pointing out the obvious. However, I am not seeing that "everyone" posting prior to me agreed that the D.C. Circuit got the case right.

I certainly would hope and expect the Supreme Court to revisit Marshall Field if Steve or Milhouse's scearios came to pass.
5.30.2007 5:06pm
KeithK (mail):
For some of the hypotheticals mentioned (Milhouse suggeted Republican skullduggery, Steve made it bipartisan by suggesting Democrats acting in bad faith in the future), the answer is simple: the backstop is the Supreme Court itself.

Actually I think it's more than that. The true backstop is the American people. If Congressional leadership ever tries to blatantly ignore the rules and fake a law (about something that matters) we'll have a Constitutional crisis. Maybe the Supremes will settle it, if the culprits care enough about the rules to listen. But if they do it will be because the American people care enough to protest loudly. If the issue were something important (and not a technicality mostly of interest to the types of folks who read this blog) I suspect they would.

The fact is that a democracy is always dependant on its particpants acting in good faith.
5.30.2007 8:21pm
David M. Nieporent (www):
The fact is that a democracy is always dependant on its particpants acting in good faith.
I agree. My reaction to Milhouse's question, or Steve's, is, "If that happens, we have a lot bigger problem than whether the two versions of the law match." What happens if Trent Lott kidnaps Harry Reid's kids and demands that he vote "Yes" on a bill to give the president unlimited power to suspend the Constitution?
5.30.2007 10:10pm
Steve:
I think that's an overstatement. Lots of people act in bad faith; that's why we have checks and balances. In many cases, it's the courts that provide the remedy for cases of governmental bad faith. This case involves a very specific form of bad faith, where the courts have decided that a remedy is better left to the political process. But it hardly stands for the proposition that the courts won't do anything about bad faith by the other two branches.
5.30.2007 10:24pm
Brett Bellmore:
No, it stands for the proposition that the courts won't do anything about this type of bad faith by the other two branches... Which I suspect is unusual only in that it became public. Is anybody out there systematically comparing enrolled bills to what actually got voted on?

An awful lot of unconstitutional mischief is protected by the term "non-judiciable".
5.30.2007 10:38pm
Steve:
No, it stands for the proposition that the courts won't do anything about this type of bad faith by the other two branches

That's exactly what I said.
5.31.2007 2:20am
Public_Defender (mail):
The courts won't get involved, but the voters can. Arrogance and ethical problems were a large part of what got the Republicans kicked out of congressional leadership.

Also, if you have any other rule, you will have to ask how much of a difference would invalidate a bill. It wouldn't make sense to invalidate a law if one version corrects a clearly typographical error or turns a comma into a semi-colon. If that happens in a use of force resolution, should the Supreme Court order the troops home?
5.31.2007 7:27pm