As a follow-up to this post, Josh Blackman has posted updates with comments, including a long one from Seth Barrett Tillman (scroll to the bottom).
The question is whether, when Congress approves an interstate compact, the approval must be presented to the President for signature or veto. I agree with Professor Tillman (or at least, his result, and a good bit of his reasoning): yes.
Briefly, the compact clause (Art. I, Sec. 10):
No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ...
And the "second" presentment clause (Art. I, Sec. 7, last paragraph):
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 …
Approval of an interstate compact requires a "vote" reflecting the "concurrence of the Senate and the House of Repressentatives." There's no other way to establish the consent of Congress, because Congress can only act through a vote of its two constituent bodies. Moreover, the textual exception for adjournment strongly implies that there are no other exceptions. So, presentment is required. That's not so hard, is it?
The main counterargument is that by this analysis Congress' recommendation of a constitutional amendment requires presentment, as it entails a "vote" reflecting the "concurrence of the Senate and the House of Repressentatives." To which I respond (a) well, then, that's what it requires; and (b) nonetheless, possibly something in Article V (providing the amendment mechanism) overrides Article I, Section 7. But fairly obviously, nothing in the compacts clause overrides Article I, Section 7.
Notably, the framers did not think that anything in Article I, Section 5 (providing for adjournment) overrode the presentment clause -- else they would not have needed to add the express exception for adjournment in the presentment clause. And Article I, Section 5 uses the same phrase as the compact clause: "consent".
It's worth noting, too, how carefully crafted these provisions are. Obviously presentment isn't required for impeachment and conviction. But why not? Because neither impeachment nor conviction -- each considered independently -- are a vote to which the concurrence of both the Senate and the House are required. So, no presentment clause exception is needed for impeachment and conviction, and there isn't one. Ordinarily adjournment would similarly be considered a vote of a single house -- e.g., whether the Senate should adjourn would be a question for the Senate. But per Article I, Section 5, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn..." Thus the adjournment of the Senate is (somewhat counterintuitively) a vote requiring the "concurrence" (or "Consent") of both Houses; as a result, the framers saw that the presentment clause would require presentment of motions to adjourn unless they added a specific exception, which they did.
The framers did not always think so carefully about their language, but when they did, we should be especially attentive to the exceptions they included and the ones they did not. There is no exception to the presentment clause for the "consent" needed to approve interstate compacts, even though there is an exception for the "consent" needed to adjourn. That makes it an easy case for me.
SETH BARRETT TILLMAN ADDS --
My view is that 1/7/2 (the Presentment Clause) and 1/7/3 (the Second Presentment Clause) are different procedures. When a substantive constitutional provision requires Congress to act "by law", then Congress must exclusively use 1/7/2. But absent 1/7/2-related "by law" language, Congress can use either 1/7/2 or 1/7/3 procedures -- the latter allows Congress to opt of bicameralism, but not presentment. To put it another way, the absence of a "by law" limitation in a substantive grant of congressional power is not an allowance for Congress to opt out of presentment (eg, by concurrent resolution per Treanor); rather, the absence of express "by law" language permits Congress to opt out of bicameralism (where authorized by a prior statute). Under my view INS v Chadha was 1/2 correct—a single House legislative veto cannot bypass the President or escape presentment. But INS v Chadha is also 1/2 incorrect—Congress can opt of bicameralism if authorized to do so by a prior statute. Once Congress tries to make use of that specific statutory authorization, using the vehicle of a single house order, resolution, or vote, then that single house order, resolution, or vote must be separately presented to the President—just like a bill is presented to the President.
To put it another way ... the traditional reading of Article I, Section 7, Clause 3 is:
Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (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 [other] Bill[s] [which are properly stylized when enacted per U.S. Const. art. I, § 7, cl. 2].
But I believe, the correct reading, as a matter of original public meaning, 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 Same shall take Effect [as a regulation (or, more accurately, as delegated legislation) per the prior organic act], 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 [per U.S. Const. art. I, § 7, cl. 2, which is a different procedure].
One final point ... there is almost no early commentary on 1/7/3. Likewise, there is little modern commentary. So much so, that it has disappeared from the radar of nearly all modern commentators. Here are two examples illustrating how this clause has “disappeared”. Professor Akhil Amar’s America’s Constitution (2005) has commentary on every provision of the Constitution of 1787—except the Counterfeiting Clause and 1/7/3. Likewise, Professor Rosenkranz wrote:
Congress acts by making laws. But the product of the action of Congress—the statute, the public law—is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. The Constitution itself avoids this grammatical ambiguity, always carefully referring to federal legislative output as “Law” or “legislation” (which Congress “makes” or “passes”).
Rosenkranz, Subjects of the Constitution at 1215-16 (emphasis added).
Simply put, you cannot square Rosenkranz’s position with 1/7/3. 1/7/3 speaks to orders, resolutions, and votes, not to “acts”, “laws”, “legislation” or, even, “statutes”.
The intellectual status quo in regard to 1/7/3 should be unsettling—at least for originalists—particularly because the clause is directed, in some fashion, towards the legislative process.