Bills and Resolutions, Redux

June 23rd, 2017

This morning, President Trump tweeted that he has signed “38 Legislative Bills.” According to NPR’s Tamara Keith, Trump has signed 39 laws, but only of them are 20 bills; 19 of them are resolutions. What’s the difference between a bill and a resolution?

In February, President Trump tweeted he signed a “bill,” when in fact he signed a Congressional Review Act resolution of disapproval. At the time, I responded that the Constitution distinguishes between bills and resolutions.

Article I, Section 7, Clause 2 provides the path for a bill to become a law:

Every Bill 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; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

Article I, Section 7, Clause 3, provides a different definition for orders, resolutions, or votes, in general.

3: 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.

But from a legal perspective, there is no difference in effect between a bill and a resolution. For example, in 2002, then-Judge, and future Attorney General, Michael Mukasey ruled that Congress’s 2001 Authorization for Use of Military Force (AUMF) against Al Qaeda had the full force of law, though it was enacted as a resolution, rather than as a bill.

Although the government struggles unsuccessfully to avoid application of the statute, the government is on firmer ground when it argues that even if § 4001(a) applies, its terms have been complied with. The statute permits detention of an American citizen “pursuant to an Act of Congress.” 18 U.S.C. § 4001 (a) (2000). If the Military Force Authorization passed and signed on September 18, 2001, is an “Act of Congress,” and if it authorizes Padilla’s detention, then perforce the statute has not been violated here.

The Joint Resolution is not called an “Act,” but that is the only respect in which it is not an “Act.” Joint resolutions generally, as their name would suggest, require the approval of both Houses of Congress, and if signed by the President, have the force of law. See Bowsher v. Synar, 478 U.S. 714, 756 (1986) (“The joint resolution, which is used for `special purposes and . . . incidental matters, makes binding policy and `requires an affirmative vote by both Houses and submission to the President for approval’ — the full Article I requirements.” (emphasis added) (citation omitted)). That is to say, there is no relevant constitutional difference between a bill and a joint resolution; both require bicameralism — passage by both Houses, and presentment — submission to the President for signature.

Congress itself has intimated that a joint resolution qualifies as an “Act of Congress.” See Joint Resolution of Dec. 15, 1981, Pub.L. No. 97-92, § 140, 95 Stat. 1183, 1200 (“Notwithstanding any other provision of law . . . none of the funds appropriated by this joint resolution or by any other Act shall be obligated or expended to increase, after the date of enactment of this joint resolution, any salary of any Federal judge or Justice of the Supreme Court, except as may be specifically authorized by Act of Congress hereafter enacted.” (emphasis added)). A light smattering of cases suggests the same thing.See Acme of Precision Surgical Co. v. Weinberger, 580 F. Supp. 490, 501-02 (E.D. Pa. 1984) (calling joint resolutions “acts of Congress”);Louisville Nashville R.R. v. Bass, 328 F. Supp. 732, 739 (W.D. Ky. 1971) (equating a joint tesolution with an “Act of Congress”); Berk v. Laird, 317 F. Supp. 715, 723 (E.D.N.Y. 1970) (calling the Gulf of Tonkin Resolution an “act of Congress”).

Principally because the Joint Resolution complies with all constitutional requirements for an Act of Congress, it should be regarded for purposes of § 4001(a) as an “Act of Congress.”

Likewise, the commentary to Thomas Jefferson’s Manual of Parliamentary Practice (§397) found that as a matter of congressional practice, joint resolutions serve the same purpose as bills:

Another development of the modern practice is the joint resolution, which is a bill so far as the processes of the Congress in relation to it are concerned (IV, 3375; VII, 1036). With the exception of joint resolutions proposing amendments to the Constitution (V, 7029), all these resolutions are sent to the President for approval and have the full force of law. They are used for what may be called the incidental, unusual, or inferior purposes of legislating (IV, 3372), as extending the national thanks to individuals (IV, 3370), the invitation to Lafayette to visit America (V, 7082, footnote), notice to a foreign government of the abrogation of a treaty (V, 6270), declaration of intervention in Cuba (V, 6321), correction of an error in an existing act of legislation (IV, 3519; VII, 1092), enlargement of scope of inquiries provided by law (VII, 1040), election of managers for National Soldiers’ Homes (V, 7336), special appropriations for minor and incidental purposes (V, 7319), continuing appropriations (H.J. Res. 790, P.L. 91–33); establishing the date for convening of Congress (H.J. Res. 1041, P.L. 91–182); extending the submission date under law for transmittal of a report to Congress by the President (H.J. Res. 635, P.L. 97–469); and extending the termination date for a law (H.J. Res. 864, P.L. 91–59). At one time they were used for purposes of general legislation; but the two Houses finally concluded that a bill was the proper instrumentality for this purpose (IV, 3370–3373). A joint resolution has been changed to a bill by amendment (IV, 3374), but in the later practice it has become impracticable to do so.

Where a choice between a concurrent resolution and a joint resolution is not dictated by law, the House by its vote on consideration of a measure decides which is the appropriate vehicle (and a point of order does not lie that a concurrent rather than a joint resolution would be more appropriate to express the sense of the Congress on an issue) (Mar. 16, 1983, p. 5669).

A 1998 article in the Yale Law Journal reached much the same conclusion:

A “joint resolution” en- acted by Congress as a public law and signed by the President is a statute of the United States and has the same effect as any other law enacted by Congress. See, e.g., Ann Arbor R. Co. v. United States, 281 U.S. 658, 666 (1930) (treating a joint resolution as equivalent to any other legislation enacted by Congress); JACK DAVIES, LEGISLATIVE LAW AND PROCESS IN A NUTSHELL 66 (2d ed. 1986) (“[A] joint resolution originates in one house and, with the concur- rence of the other house, has the force of official legislative action.”); ROBERT U. GOEHLERT & FENTON S. MARTIN, CONGRESS AND LAW-MAKING: RESEARCHING THE LEGISLATIVE PROCESS 42 (2d ed. 1989) (“In reality there is little difference between a bill and a joint resolu- tion, as a joint resolution goes through the same procedure as a bill and has the force of law.”); HANS A. LINDE ET AL., LEGISLATIVE AND ADMINISTRATIVE PROCESSES 110 (1981) (“The pre- scribed form of a proposal for a statute is generally called a bill, although Congress also uses the form of a joint resolution to enact legislation.” (emphasis added)); HORACE E. READ ET AL., MATERIALS ON LEGISLATION 129 (4th ed. 1982) (“In recent years much major legislation has taken the form of a joint resolution; it is now rather generally conceded that a joint resolution of Congress is just as much a law as a bill afterpassage and approval.” (emphasis added)); L. Harold Levinson, BalancingActs: Bowsher v. Synar, Gramm-Rudman-Hollings,and Beyond, 72 CORNELL L. REv. 527,545 (1987) (“Courts have consistently held that the legal effect of a joint resolution is identical to that of an enacted bill.”). Among the many notable joint resolutions that have been treated as having the effect of law are the joint resolution that annexed Texas to the United States, 9 Stat. 108 (1845); see Texas v. White, 74 U.S. (7 Wall.) 700, 722, 726 (1868), and the joint resolution that annexed Hawai’i to the United States, 30 Stat. 750 (1898); see United States v. Fullard-Leo, 331 U.S. 256,259,265 (1947).

At bottom, we are quibbling about semantics–but text matters. If nothing else, I hope this episode serves a bigger purpose than finding fault with Trump; rather, it affords us a timely opportunity to take the text of the Constitution seriously.