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01/26/2013

Andrew Hyman on Presentment and Proposed Amendments (Corrected)
Michael Ramsey

On presentment and proposed amendments, Andrew Hyman comments:

According to a blog post by Mike Rappaport, the constitutional text unambiguously requires that congressionally-proposed constitutional amendments are subject to presentment and veto.  Presumably, he would uphold the contrary precedent (Hollingsworth v. Virginia) simply because it's longstanding and widely accepted, even though (in his view) it violates original meaning.  But I disagree. 

People unfamiliar with the Hollingsworth case could do a lot worse than reading the Wikipedia article about it which seems quite good in my view. 

Article V says: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution".  To me, this means that Congress can propose amendments at any time (“whenever”) it produces a two-thirds vote, and that can be the initial two-thirds vote instead of a later veto override vote.   Thus, the specific language of Article V makes an exception to the general language of the Presentment Clause, per the ancient canon of statutory construction generalia specialibus non derogant.

So I'd uphold the Hollingsworth precedent too under stare decisis, but only because it's very arguably consistent with the original meaning of the text. 

I also agree with the European legal scholars Anne Wagner and Sophie Cacciaguidi-Fahy, who counsel against rushing to interpret this sentence of Article V differently from the straightforward meaning that the Supreme Court has always attributed to it.  Incidentally, regarding the interesting research by Seth Barrett Tillman about this case, I am not convinced that the Court in Hollingsworth did not adopt the reasoning of Justice Chase and Attorney General Lee, whose statements are included with the Court's decision (it would be very odd for the Court to silently base its decision upon arguments not presented while publishing only arguments and opinions with which it disagreed).

Update:  Andrew Hyman adds this clarification --

The two European legal scholars to whom I referred [in the above comment] were only editors.  The actual essay was written by M. Douglass Bellis, Senior Counsel in the Office of the Legislative Counsel, United States House of Representatives.