Orders, Resolutions, and Votes Clause

Original meaning: closing the relabeling loophole

Story's Commentaries identify the Clause's purpose precisely: "The remaining clause merely applies to orders, resolutions, and votes, to which the concurrence of both houses may be necessary; and as to these, with a single exception, the same rule is applied, as is by the preceding clause applied to bills. If this provision had not been made, congress, by adopting the form of an order or resolution, instead of a bill, might have effectually defeated the president's qualified negative in all the most important portions of legislation." Joseph Story, Commentaries on the Constitution 2:§889 (1833).

The Clause's presentment requirement therefore rides on the same original-meaning foundation as Clause 2's veto power — a qualified, overridable negative, deliberately chosen over the British Crown's absolute negative and over proposals to add the judiciary to a Council of Revision. See Presentment Clause for the Convention debate establishing that structure.

Scope: what counts as "necessary"

"Necessary" means necessary to have the force of law. A resolution or order requiring the concurrence of both Houses to take binding legal effect falls within the Clause; a preliminary vote or a concurrent resolution merely expressing the "sense" of Congress, with no legal effect of its own, does not require presentment.

The constitutional-amendment exception

The one settled exception is a resolution proposing a constitutional amendment under Art. V. Because ratification runs through the states rather than through ordinary lawmaking, such a resolution does not require presidential presentment despite requiring the concurrence of both Houses. Hollingsworth v. Virginia, 3 U.S. 378 (1798), upheld the Eleventh Amendment on this basis, and every subsequent case has followed it.

Relationship to the legislative-veto cases

The modern doctrine applying this Clause (together with Clause 2) to strike down one-house and two-house legislative vetoes, and to bar unilateral presidential cancellation of enacted spending items, is developed on the Presentment Clause page: see INS v. Chadha (1983) and Clinton v. City of New York (1998). Those cases treat Clauses 2 and 3 as a single bicameralism-plus-presentment requirement, turning on substance — whether an act "has the purpose and effect of altering the legal rights, duties and relations of persons... outside the Legislative Branch" — rather than on the form Congress gives the action.