Posted by Jonathan Adler:
Rolled by the "Enrolled Bill" Rule:
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180537295
Yesterday the U.S. Court of Appeals for the D.C. circuit turned away
Public Citizen's challenge to the validity of the Deficit Reduction
Act of 2005 (DRA) in [1]Public Citizen v. United States District Court
for the District of Columbia. According to Public Citizen, the DRA was
invalid because the House and Senate did not both approve the same
version of the DRA. Rather, due to an alleged clerical error (that
nonetheless altered substantive provisions of the bill), the two
versions were different. This means the DRA never became a law,
according to Public Citizen, because the bill signed by the President
did not first pass both the House and Senate in accordance with
Article I, section 7 of the Constitution.
The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards,
upheld the district court's holding that the claim was foreclosed by
[2]Marshall Field & Co. v. Clark, an 1892 case in which the Supreme
court held that "the judiciary must treat the attestations of 'the two
houses, through their presiding officers' as 'conclusive evidence that
a bill was passed by Congress.'" Once a bill is signed by the leaders
of the House and Senate, it is an attested "enrolled bill" that
"should be deemed complete and unimpeachable" for purposes of the
Constitution's bicameralism requirement. This "enrolled bill" rule
precludes the sort of challenge Public Citizen sought to advance.
Public Citizen sought to distinguish its case from Marshall Field in
various ways, or suggest that the decision had been tacitly overruled,
but the D.C. Circuit rejected these arguments.
One interesting aspect of the court's ruling is it's conclusion that
the enrolled bill rule presents a threshold question that may be
resolved before concluding that the court has jurisdiction to hear the
claim in the first place. Therefore, the D.C. Circuit concluded, it
could dismiss the case under the enrolled bill rule before determining
whether Public Citizen had standing to challenge the legality of the
DRA in the first place. According to the court, it "is not obliged to
decided jurisdictional issues before certain nonjurisdictional rules
designed not merely to defeat the asserted claims, but to preclude
judicial inquiry." In this case, the enrolled bill rule establshed by
Marshall Field is "a non-merits threshold ground for dismissal."
Also interesting to note are the two rationales for the enrolled bill
rule established in Marshall Field: separation of powers and the need
for certainty in "the statute laws of the land." The Court rejected
the idea that the judiciary should challenge the validity of laws that
the two political branches attest were passed in accordance with the
relevant constitutional requirements. Such a "spectacle" would
subordinate" the legislature to the judiciary and "disregard" its
coequal position in the government. Moreover, it could lead to
unnecessary uncertainty in the law.
Better, far better, that a provision should occasionally find its
way into the statute through mistake, or even fraud, than that
every act . . . should at any and all times be liable to be put in
issue and impeached . . . . Such a state of uncertainty in the
statute laws of the land would lead to mischiefs absolutely
intolerable.
Thus, an enrolled bill attested to by the Congressional leadership is
itself "conclusive evidence" that it was passed by Congress and "the
enrollment itself is the record, which is conclusive as to what the
statute is."
References
1. http://pacer.cadc.uscourts.gov/docs/common/opinions/200705/06-5232a.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=143&invol=649
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