The 'shell bill' game: avoidance and the origination clause.

Author:Kysar, Rebecca M.
Position::III. The Theoretical Case for a Legislative Process Avoidance Doctrine Under the Origination Clause through Conclusion, with footnotes, p. 698-720

    I have argued above that the Court's jurisprudence under the Origination Clause can largely be explained as an expression of its reluctance to conduct a searching review of the legislative process, thus predicting an expansive reading of the Senate's amendment power. I have also defended this reading from the standpoint of constitutional history, text, and precedent, both judicial and congressional. Separation of powers principles support the Court's approach to interpreting the Origination Clause and can be articulated as a legislative process avoidance doctrine, with possible application to other areas of constitutional law.

    The legislative process avoidance doctrine counsels that courts should construe ambiguous constitutional provisions in a manner that avoids searching review of the legislative process. For instance, where the Constitution does not clearly prescribe conditions for legislative enactment, the judiciary should be hesitant to interpret additional ones. The case for doing so appears especially strong in the matter at hand since the Origination Clause is closely associated with congressional procedure and gives the amendment power to the Senate "as on other Bills," thus leaving the interpretative task to Congress. (208) Whether the case for the legislative process avoidance doctrine is as strong in other areas of constitutional law is a subject for future inquiry. As a preliminary matter, questions left open by Article I, Section 7, such as the precise requirements of whether a bill "passes" a house or whether a house could delegate to a committee the power to present a passed bill to the President, are likely candidates for the doctrine's application. (209) As explained in this Part, separation of powers concerns, as embodied in the Rulemaking Clause and the political question doctrine, can be marshaled to support a legislative process avoidance doctrine, at least where the text indicates interpretive delegation to Congress. In areas of traditional legislative concern, ambiguity may even imply such delegation.

    1. The Rulemaking Clause and its Underpinnings

      Madison rightly predicted that the Origination Clause would be "a source of frequent [and] obstinate altercations," (210) yet the Framers did little to resolve its ambiguities. Did they wish Congress or the judiciary to settle disputes under the Clause? In warning that the Clause would become "a source of perpetual contentions" between the houses, James Wilson in fact assumed that there would be "no mediator to decide [such contentions]." (211) After all, at the time of the Federal Constitutional Convention, the legitimacy of judicial review, as a general matter, was unsettled. (212) It is likely that the judicial review of the internal workings of the legislature would have proven even more controversial, given the legislative prerogative over its internal proceedings.

      1. An Expansive Interpretation of the Rulemaking Clause

        The principle that the legislature has unfettered discretion over the lawmaking process has its textual roots in the Rulemaking Clause of the Constitution, and its historical roots in British and American law dating back centuries. (213) Under the Rulemaking Clause, which provides that "[e]ach House may determine the Rules of its Proceedings," (214) the houses are free to make, amend, repeal, suspend, ignore, or waive their internal rules. (215) The Clause was adopted without discussion, reflecting the view, expressed by Justice Story, that the power over legislative rules is inherent in Congress's lawmaking authority:

        No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority. (216) So fundamental is this legislative power that it could be argued that the Rulemaking Clause is superfluous; it merely confirms generally accepted separation of powers principles. (217) It is often noted that procedure determines outcomes in the legislative process. If the judiciary could meddle with legislative procedure, it would essentially alter the statutory law, a troublesome result.

        Some trace the legislature's unfettered discretion over its internal processes to the British theory of legislative sovereignty, which attempted to counter the long history of monarchical interference. (218) It makes sense to question, then, whether this legislative prerogative should endure given the American break from the British theory in favor of sovereignty of the people. (219) In other words, as a matter of constitutional design, were the Framers justified in giving to Congress the power over its internal proceedings?

        In many respects, the Constitution imposes limitations on the formulation of Congress's internal rules. For instance, Sections 4 and 5 of Article I include rules for legislative assembly, selection of officers, discipline of members, and voting and quorum rules, among others. (220) These limitations thus represent the American rejection of the British tradition of legislative sovereignty. Accordingly, under the principles of judicial review established by Marbury v. Madison, (221) the judiciary may properly enforce them. (222) Nonetheless, where the people have not adopted constitutional provisions concerning legislative procedure, the judiciary's involvement in the workings of legislative process is problematic.

        Indeed, the Constitution leaves ample room for Congress to supply certain details of the lawmaking process. Article 1, Section 7 says little about the actual process of creating legislation, focusing instead on the Presidential veto and override process. For instance, there is no requirement that an identical bill be passed by the two houses; instead the houses are left to their own devices in designing a method of agreeing upon the bill that is to be sent to the President. (223) The manner of passage is also left vague. Accordingly, under current legislative rules, only one member of the majority need be present for a bill to pass, and there is no constitutional requirement that legislators read the text of a bill or have a factual basis for its contents. (224) To be sure, the Court has emphasized that the "finely wrought and exhaustively considered" enactment process of Article I, Section 7 cannot be circumvented, (225) but that apparatus leaves many gaps to be filled in by Congress under its rulemaking authority.

        Additionally, the Court has interpreted the Rulemaking Clause broadly, affording Congress great flexibility over the legislative process. For instance, in United States v. Ballin, the Court deferred to the House's interpretation of the constitutional "Quorum to do Business" requirement to include both voting and non-voting members, reasoning that the Rulemaking Clause of the Constitution empowers each house to create its legislative rules. According to the Ballin Court, the Rulemaking Clause preempts judicial review of such rules. (226) The Ballin Court reasoned: "The power to make rules ... is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." (227)

        Other Supreme Court and lower federal cases adopt an expansive view of the Clause, seldom reviewing rules and capitulating to Congress unless the rule infringes upon constitutional limitations (228) or the fundamental rights of individuals (especially when Congress functions in a semi-judicial capacity). (229) A more recent case indicates the Court's hesitance to review legislative rules even when they implicate individual rights. In Nixon v. United States, the Court held non-justiciable a Senate rule that delegated fact-finding in an impeachment proceeding to a committee, invoking the political question doctrine and reading the text of the Impeachment Trial Clause to prevent judicial review. (230)

        The judicial reluctance to review legislative rules is in accordance with its unwillingness to review the legislative process as a general matter. The Court has held, for instance, that the due process clause does not apply to legislatures (231) and has failed to adopt a "due process of lawmaking" in spite of academic calls for such judicial inquiry. (232) Field v. Clark, which was decided the same year as Ballin and pronounced the enrolled bill doctrine discussed above, (233) did not involve a direct interpretation of the Rulemaking Clause but can be viewed as the Clause's analogue, protecting even egregious errors from judicial review so long as the bill is certified as enrolled by the appropriate officer. (234)

      2. Munoz-Flores and the Rulemaking Power

        These precedents display the Court's unwillingness to review legislative process, though it could be argued that the Court has specifically opted out of this principle in the Origination Clause context. Munoz-Flores, for instance, recognizes the general justiciability of the Clause and specifically lies in tension with the Field holding. (235) As one scholar has argued, the two cases "cannot peacefully coexist" since it is illogical for the judiciary "to police Article I's 'Origination Clause' requirement (which focuses on where a bill started, not whether it was ever passed), but not to police Article I's requirement of bicameral approval as a precondition for lawmaking." (236) Although the Munoz-Flores Court attempted to distinguish Field because it did not implicate a constitutional provision, it is difficult to see how Field did not involve the Presentment Clause's bicameral requirements for bill passage. (237)

        Perhaps the two...

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