Thomas A. Smith on Seth Barrett Tillman on Article I, Section 7
The National Constitution Center's Interactive Constitution project continues to generate interesting clause-specific commentary on the Constitution, often with some originalist orientation. The innovative format, as I've discussed before, is that the Federalist Society and the American Constitution Society each nominate an expert on a particular clause; the experts produce one joint essay noting areas in which they agree, and then separately each write an essay on areas in which they do not agree. (Here are my contributions on the declare war and commander-in-chief clauses with University of Texas law professor Stephen Vladeck, in which we don't manage to disagree on much).
A recent addition is on Article I, Section 7 (basically, how a bill becomes a law), featuring Nicholas Bagley (Michigan) and my colleague Thomas A. Smith. Professor Smith's separate essay in turn relies heavily on co-blogger Seth Barrett Tillman's pathbreaking scholarship on Article I, Section 7:
One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known as the Presentment of Resolutions Clause, or the Order, Resolution, and Vote (ORV) Clause. Subject to a major revelation in the early twenty-first century, its story illustrates originalist legal scholarship in action. (Originalism is an approach to the Constitution that seeks to interpret it according to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to be a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’s work revealed that the Framers’ intent was quite likely otherwise.
The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase “or resolve” after “bill,” achieving the same effect as that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the following day. According to Madison, the ORV Clause was simply a “new form” of his failed amendment. As practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted uncritically by the Supreme Court and legal scholars.
What Tillman uncovered was that Madison’s interpretation of the ORV Clause is actually inconsistent with the constitutional text. Tillman’s 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of single-House actions authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—most notably, INS v. Chadha (1983). In Chadha, the Court struck down the “legislative veto” by the House of Representatives for failing to comply with the principle of bicameralism. ...
UPDATE: The link to Professor Tillman's classic article is here: A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Viriginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned.