The Order, Resolution, or Vote (ORV) Clause

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) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

—Seth Barrett Tillman

Introduction

The Presentment Clause (Article I, Section 7, Clause 2) requires that “Every Bill” passed by the House and Senate must be “presented to the President” for his approval before it can become law. (See Essay No. 36.) This two-step process is known as bicameralism and presentment. Article I, Section 7, Clause 3 imposes a further requirement: “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) shall be presented to the President of the United States.” This provision is known as the Order, Resolution, or Vote (ORV) Clause. It has also been called the Second or Residual Presentment Clause or Presentment of Resolutions Clause. The Presentment Clause mandated the requirements of bicameralism and presentment for all statutory lawmaking. INS v. Chadha (1983) held that the ORV Clause accomplished the same general purpose.¹ Chadha saw the ORV Clause entirely as an anti-evasion clause designed to prevent Congress from opting out of the Presentment Clause’s bicameralism and presentment requirements merely by denominating a bill by some other name, such as an order, resolution, or vote.

The alternative view is that the ORV Clause was an alternative procedural mechanism for making binding law, but not in the form of traditional statutes. The ORV Clause procedure was used a single time by the First Congress and subsequently fell into desuetude or disuse.

The Constitutional Convention

On August 15, 1787, the Convention agreed on the outlines of the Presentment Clause.² James Madison of Virginia observed that “if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes [etc.]”³ In other words, Madison warned that Congress could evade the possibility of a presidential veto by simply denominating a “bill” as a resolution, vote, or something else. For that reason, Madison made a motion to insert the words “or resolve” after the word “bill” in the Presentment Clause. With Madison’s revision, the Presentment Clause would have read in part: “Every Bill or resolve which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.” Madison characterized the debate on his motion as “short and rather confused.”⁴ It was the only such debate at the Convention that was characterized as “confused.” Madison’s motion was defeated by a vote of eight to three.⁵ The Convention then approved a proposal to change the time limit provision in the Pocket Veto Clause from seven days to ten days.⁶ (See Essay No. 37.)

The following day, on August 16, Edmund Randolph of Virginia proposed a freestanding clause:

[E]very order, resolution or vote, to which the concurrence of the Senate and House of representatives may be necessary (except on a question of adjournment, and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force, shall be approved by him, or, being disapproved by him, shall be repassed by the Senate & House of Reps according to the rules & limitations prescribed in the case “of a Bill.”⁰

Randolph’s August 16 proposal was nearly identical to what would become the final language of the ORV Clause. The Convention, without recorded debate or explanation, approved Randolph’s proposal nine to one.⁷ Seven states that had voted against Madison’s proposal the day before voted for Randolph’s proposal, which Madison characterized as “a new form [of his own prior] motion, putting votes, Resolutions &c. on a footing [equal] with Bills.”⁸

Several inferences can be drawn both from this drafting history of Article I, Section 7 and from the text of related provisions of the Constitution. First, it seems unlikely that Randolph’s proposal and Madison’s accomplished the same purpose. Whereas Madison merely added two words to the draft Presentment Clause, Randolph proposed a freestanding clause that was more than seventy-five words long.

Second, the two provisions apply in different circumstances. The Presentment Clause applies when a bill is “passed [by] the House of Representatives and the Senate.” The ORV Clause applies when “the Concurrence of the Senate and House of Representatives may be necessary” for an “Order, Resolution, or Vote.” The former provision expressly mandates bicameralism for bill passage; with the latter provision, unicameral action is implicitly recognized. In other words, orders, resolutions, and votes are primarily single-house instruments.

Third, Madison’s proposal was defeated by a lopsided majority, and Randolph’s proposal the very next day was approved by a lopsided majority. If the two clauses accomplished the same basic purpose, it seems unlikely that the seven states that had voted against Madison’s proposal, after less than a day had passed and absent any record of substantive debate, suddenly changed their minds and voted for Randolph’s proposal. The better explanation is that Randolph’s proposal accomplished an end that was substantively different from the one that was accomplished by Madison’s proposal.

Fourth, Madison reported that the debate on his proposal was “confused.” If it was clear that the two proposals accomplished the same basic purpose, then there should not have been any confusion. It is possible that Madison was “confused” because he had pigeonholed Randolph’s proposal as accomplishing the same basic purpose that was accomplished by his own failed proposal.

Fifth, the Committee of Detail reported its draft Constitution on August 6. In that draft, the President was granted a general “Power to convene the Legislature on extraordinary Occasions.”⁹ The ORV Clause was added to the draft on August 16, and the President’s convening power was expanded on September 8. The revised Convening Clause was amended to read: “[The President] may convene both or either of the Houses on extraordinary occasions.”¹⁰ If Madison’s understanding of the Presentment Clause applied to the ORV Clause, there was little reason to grant the President a power to convene just the House of Representatives. In fact, the grant of this specific power would puzzle Alexander Hamilton in Federalist No. 77, written in response to the Anti-Federalist Cato’s Letter No. VII.¹¹ (Hamilton was in attendance on September 8 and should have heard the debate on the clause’s amendment on that day.) By contrast, the amendment to the Convening Congress Clause can be explained if the ORV Clause permits Congress by statute to delegate limited legislative powers to a single house of Congress.

Finally, nine provisions of the original Constitution and two provisions in the Bill of Rights provide that Congress must act “by law.”¹² Office of Personnel Management v. Richmond (1990) explained that “by law” means “by statute.”¹³ However, most clauses authorizing congressional action have no such limiting “by law” language. If Madison was correct, and if bills and orders, resolutions, and votes are substantively the same legal instruments but merely titled differently, then this “by law” language in these nine provisions is superfluous. Such an interpretation is not favored. By contrast, if bills are different from orders, resolutions, and votes, then the “by law” limitation in these nine clauses is functional: This “by law” language restricts Congress to the traditional statutory lawmaking processes set down in the Presentment Clause for these particular nine clauses. But where the “by law” language is not present, Congress can pass a traditional statute, and that statute could authorize further lawmaking by a single house in the form of an order, resolution, or vote that would be subject to separate presentment to the President just as the prior authorizing statute would be.

In short, the default rule is that Congress can engage in lawmaking, broadly understood, either by the Presentment Clause’s procedures in Article I, Section 7, Clause 2 or by the ORV Clause’s procedures in Article I, Section 7, Clause 3. But where a constitutional provision demands congressional action “by law,” then Congress can engage in lawmaking only by the Presentment Clause’s traditional statutory lawmaking procedures: bicameralism and presentment.

The ORV Clause in the First Congress

What was the original public meaning of the ORV Clause? Was it, as Madison suggested in his personal convention Notes, a method to ensure that Congress could not evade the requirements of bicameralism and presentment by denominating a bill as something other than a bill? Or did the ORV Clause, per Randolph’s proposal, do something else? The actions of the First Congress shed some light on these questions.

In 1789, the First Congress enacted An Act to Establish the Treasury Department.¹⁴ This statute required the Secretary of the Treasury to “give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives . . . .” In short, Congress by statute prospectively authorized each house of Congress, acting separately, to request information from the Secretary of the Treasury, and the statute made it the secretary’s duty to report to a single house of Congress. Congress certainly could impose such an obligation through bicameralism and presentment, but this statute did not do that. Rather, this statute delegated the power to each house of Congress, acting separately, to compel the Secretary of the Treasury to report information to it. In other words, each house of Congress, through a unicameral or simple resolution, could impose a legal obligation on the executive branch. This resolution would not be a statute, but it would still have the force of law. That is what the ORV Clause states: Orders, resolutions, and votes are not characterized as “laws” but “take effect” as laws. One scholar has asserted that “[t]he Constitution itself avoids [a] grammatical ambiguity, always carefully referring to federal legislative output as ‘Law’ or ‘legislation’ (which Congress ‘makes’ or ‘passes’).”¹⁵ However, he did not discuss the ORV Clause.

If Madison’s understanding was correct, and if the ORV Clause was designed to prevent evasion of the Presentment Clause’s requirements, then this reporting provision imposed by statute by the First Congress was unconstitutional. Under Madison’s understanding of the Presentment Clause and the ORV Clause, Congress enacts bills, as well as orders, resolutions, and votes, into law via bicameralism and presentment. But through this statute, the first Congress delegated a share of its lawmaking authority to either house of Congress acting separately. This statute’s reporting provision amounts to a rejection of Madison’s reading of Article I, Section 7, Section 3. It is worth noting that in 1789, Madison served in the first Congress, and Hamilton was the Treasury Secretary. They both would have played some role in regard to the statute.

What was the original public meaning of the ORV Clause? In my view, the Clause permits Congress by statute to delegate some of its lawmaking power to a single house.¹⁶ When a single house acts under that delegated authority, its statutory instrument (an order, resolution, or vote) must be intra vires—that is, the single-house statutory instrument must conform to the authorizing statute. Moreover, the single house’s order, resolution, or vote must be separately presented to the President just as the prior authorizing statute was presented. In other words, in some circumstances, Congress can opt out of bicameralism, but it cannot opt out of presentment. In this limited sense, Madison was correct. Because both traditional statutes and statutory instruments (orders, resolutions, and votes) must be presented to the President, the latter are “on a footing [equal] with bills.” But orders, resolutions, or votes that are not statutory instruments—that are not passed in compliance with a congressional delegation—are not on equal footing with bills and therefore do not have the force of law.

For all of these reasons, the better reading of the ORV Clause is:

Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the [order, resolution, or vote] shall take Effect [as a statutory instrument or regulation per the prior statutory authorization], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case].

Modern Congressional Practice Involving Resolutions

Today, not all resolutions of Congress require presidential approval, because not all such resolutions are intended to be laws, statutes, or acts of Congress. In modern practice, there are three general types of resolutions: joint resolutions, concurrent resolutions, and single-house or simple resolutions.

Joint resolutions are passed by both houses, are presented to the President, and if approved have the force of law. Joint resolutions are simply statutes, but they usually apply to specifically designated persons or have a limited scope or have a one-time effect.¹⁷ By contrast, statutes apply indefinitely into the future to persons and cases unknown. For these reasons, a declaration of war is passed as a joint resolution. For reasons that are not entirely clear, a congressionally proposed amendment to the Constitution is also styled as a joint resolution even though it is not subject to the President’s veto power. Perhaps this is because the Article V amendment process operates independently of the presentment strictures in Article I, Section 7, which apply to bills and other bill-like congressional instruments.¹⁸

Concurrent resolutions are passed by both houses but are not presented to the President. They are not intended to have the force of law. They are often expressions of the opinion of both houses of Congress or affect the procedures of one or both houses. In addition to the concurrent resolutions that express the opinions or “the sense of the Congress” on an issue, many other concurrent resolutions set revenue and spending goals or fix the time for adjournment.

Simple resolutions are passed by a single house but are not presented to the President. They are not intended to have the force of law. Customarily, such resolutions simply express the opinion of a single house of Congress. Additionally, these resolutions deal with a single house’s internal procedures, such as fixing the time for a short adjournment, imposing censure on a Member, or setting spending limits for particular committees.

INS v. Chadha and the ORV Clause

Federal statutes often empower executive branch officers to make discretionary decisions. However, in some twentieth-century statutes,¹⁹ Congress also expressly provided that such exercises of discretion could be reversed by both houses of Congress acting together in a concurrent resolution or even by a unicameral simple resolution. Such congressional expressions of disapproval, sometimes called legislative vetoes, would not be presented to the President for his signature or veto.

INS v. Chadha (1983) held that Congress could not use a resolution by one house and, by extension, a concurrent resolution by both houses, to “veto” an executive action.²⁰ The Supreme Court ruled that this “one house veto” violated the ORV Clause. The Chadha Court went further and accepted Madison’s understanding of the provision: that the purpose of the clause was to prevent Congress from evading bicameralism and presentment, which is required for bills, by using a single-house instrument. In his opinion for a majority of the Court, Chief Justice Warren Burger wrote that “[d]uring the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that [the Presentment Clause] might easily be evaded by the simple expedient of calling a proposed law a ‘resolution’ or ‘vote’ rather than a ‘bill.’”²¹ As a result, Burger continued, “Art. I, § 7, cl. 3 [the ORV Clause] was added.”²² The Chadha Court adopted Madison’s view that Randolph proposed the ORV Clause to ensure that mechanisms laid out in the Presentment Clause were not circumvented.

The few modern scholarly sources that discuss the ORV Clause have consistently adopted Madison’s understanding that the purpose of the clause is to preclude Congress from evading the President’s veto by denominating a bill as something other than a bill. Professor Akhil Reed Amar, for example, has affirmed the correctness of INS v. Chadha.²³ However, like Chadha, these modern sources do not account for the significant textual differences between Madison’s proposal and Randolph’s proposal, as well as the Treasury Act from the First Congress. Moreover, the Madisonian reading renders the Constitution’s “by law” language, appearing in many provisions of the Constitution of 1788, surplusage. The Congressional Research Service has reported the view that the ORV Clause permitted statutory delegations to a single house.²⁴

Open Questions

There is some evidence that Chadha’s interpretation of the ORV Clause was incorrect as an originalist matter. What kind of test case would allow the Supreme Court to revisit Chadha?²⁵ One suggestion would be a statute in which Congress delegated significant legislative powers to a single house when all of the members of the other house had been killed or incapacitated by war, natural disaster, or a pandemic. Likewise, where an executive order or regulation impinging on private rights is authorized by a single-house order and the latter single-house order is authorized by a prior statute, private litigants could test the validity of the regulation, which would implicitly test the constitutionality of congressional action under the aegis of Article I, Section 7, Clause 3.

1. 462 U.S. 919 (1983). ↩︎
2. 2 Farrand’s 295. ↩︎
3. Id. at 301. ↩︎
4. Id. at 302. ↩︎
5. Id. ↩︎
6. Id. at 302. ↩︎
7. Id. at 305; 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 Reasoned, 83 Tex. L. Rev. 1265, 1314 n.106 (2005). ↩︎
8. 2 Farrand’s 304. ↩︎
9. Id. at 158, 171, 185. ↩︎
10. Id. at 547 (emphasis added). ↩︎
11. Storing 2.6.45–48. ↩︎
12. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 378–83 (2023). ↩︎
13. Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990). ↩︎
14. An Act to establish the Treasury Department, ch. 12, § 2, 1 Stat. 65, 65–66 (1789). ↩︎
15. Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1216 (2010). ↩︎
16. Tillman & Blackman, supra at 424. ↩︎
17. Robert Luce, Legislative Procedure: Parliamentary Practices and the Course of Business in the Framing of Statutes 554–558 (1922); 1 Statutes at Large 96–98, 187, 224–25 (Richard Peters ed., Boston, Charles C. Little & James Brown 1845). ↩︎
18. Hawke v. Smith, 253 U.S. 221, 229 (1920); Chadha, 462 U.S. at 955 n.21. ↩︎
19. Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 371 (2012). ↩︎
20. 462 U.S. at 959. ↩︎
21. Id. at 947 (citing 2 Farrand’s 301–02). ↩︎
22. Id. (citing 2 Farrand’s 304–05). ↩︎
23. Amar, supra at 369–72. ↩︎
24. Cong. Rsrch. Serv., The Constitution of the United States of America: Analysis and Interpretation 301 n.2, S. Doc. No. 117-12, 117th Cong., 2d Sess. (2023). ↩︎
25. Seth Barrett Tillman, Model Continuity of Congress Statute, 4 Pierce L. Rev. 191 (2006). ↩︎