You remember our friend Bill, the lonely parchment "sitting up on Capitol Hill" awaiting to be considered by the Congress so that he might have the chance to become a law?
The "textbook" model of the legislative process tells us, in a very linear fashion, that a bill has a starting point, several hurdles to overcome, and an ending point whereby the two chambers of Congress vote on an identical piece of legislation, which is then sent on its way to the president where he gets 10 whole days to consider signing it or vetoing it. But if you had the kind of public education that I had, you are as much in the dark as I was at what could possibly take 10 days to consider whether you wish to sign or veto a bill? Particularly, as I was taught, when you know that the president is very active during the entire legislative process in marshaling a bill through each stage that is as close to his liking as possible. So it isn't like he doesn't know what the bill entails, and thus must take 10 days to "crib" in order to make a decision.
With this in mind, Slate's Jacob Leibenluft wrote an article on "how a new piece of legislation gets delivered to the White House," where he asks: DOES CONGRESS E-MAIL THE PRESIDENT? And it is a must-have for high school teachers and American Government faculty all of the US.
Once a bill is passed by both chambers, it is considered an "enrolled" bill, so designated on the website Thomas by the letters ENR. The enrolled bill is supposed to be in identical form, yet there has been moments in the past where that hasn't happened, including the recent farm bill sent to and vetoed by President Bush. That bill was missing 34 pages, requiring the Congress to vote twice to override the president's veto.
The enrolled bill, after certification from the House Clerk or the secretary of the Senate, is then printed on parchment, which in the days of the First Congress was animal skin but today is a special type of paper that resembles animal skin (lamb or goat). Once the final preparations are made, the clerk or secretary (which depends on the chamber the bill originated), and the leadership in each chamber sign off, leaving the bill to be hand delivered to the executive clerk in the White House. The bill is also sent electronically to the Government Printing Office to be displayed online and in print. As Leibenluft notes, if there is an error in the bill, it may be ignored by the president (if it is minor) or the president may issue a signing statement demanding corrections. Leibenluft brings up the "Vicksburg National Military Park" bill as an example of a bill that was sent to President Bush with error. In President Bush's signing statement of the bill, he writes:
The second sentence of section 3(b) of the Act reads: ``Upon the acquisition of the property referenced in this subsection,
the Secretary add it to the Vicksburg National Military Park and shall modify the boundaries of the park to reflect its
inclusion.'' It is plain in reading the sentence that a word is missing between the words ``Secretary'' and ``add.''
In accordance with section 106 of title 1 of the United States Code, enrolled bill S. 1175 was presented to
me bearing the signatures of the Speaker of the House of Representatives and the President pro tempore
of the Senate, which attests that both Houses passed the bill. In accordance with the principles enunciated by the
U.S. Supreme Court in Marshall Field & Co. v. Clark in 1892, I take the bill presented as being duly enrolled and
shall not turn to the journals of either House, the reports of congressional committees, or other documents
printed by the authority of Congress in an effort to determine whether an error in the enrollment of S. 1175 has occurred.
Now, what happens when the bill is hand delivered to the Executive Clerk?
In a 1979 Political Science Quarterly article by professors Stephen Wayne, Richard Cole, and James Hyde, Jr., provide the details of what takes place once the bill arrives at the White House. Copies of the bill are made by the Legislative Reference Division within the Office of Management and Budget and sent to all agencies and departments that are implicated by the legislation, which also includes a copy that is sent to the Office of Legal Counsel within the Department of Justice. The OLC will look for constitutionally problematic provisions while the agencies and departments will make their recommendations as to whether the bill should be signed or vetoed. All have 48 hours to make their recommendations and get them back to the LRD. If they recommend a veto, the agencies and departments also include a veto message that can be used should the president veto. They also include language that may be used in the case of the president attaching a signing statement to the legislation--for instance, many of the constitutional signing statements--that is, the challenges to defective provisions of a bill--originate in the OLC--in fact, the language is lifted verbatim from the OLC recommendations. From here:
The Legislative Reference Division then collects the recommendations and prepares a cover memo for the president. This memo briefly describes the purpose of the bill, lists the department and agency positions, indicates the OMB recommendation, and discusses the major issues of the legislation. The cover memo and the accompanying statements of the departments and agencies are then forwarded to the White House not later than the fifth day of the 10-day period within which the president must act.
What the president does next is solely and completely up to him and those closest to him. As we have seen in the current administration, constitutional challenges have been added by the vice-president and his staff after the OLC has made its recommendations (and one of the reasons why the challenges are as high as they are). Or, advisers close to the president may toss overboard the constitutional challenges of the OLC, all for political expediency. For instance, when I was working on my dissertation, I interviewed Doug Kmiec about his role in the Reagan administration in developing the signing statement into the weapon it has become, and also to ascertain his view from the perch at OLC. In particular, in 1986, the Reagan administration offered a contradictory interpretation to a provision of an immigration bill because the provision was left undefined after a battle between the House and the Senate. Kmiec stated:
I thought this statement had in essence been "hijacked" by a few people...at the White House who wanted, somewhat imprudently in my judgment, to express political rather than legal concerns that did not fairly reflect...either legislative intent or a constitutional evaluation that necessarily must qualify that intent.
Kmiec also described another instance in 1988 when Congress passed a whistleblower protection bill that OLC objected to. In this instance, those closest to VP Bush were cutting deals with members of Congress to mitigate OLC's recommendation that the bill be vetoed. Thus once the bill arrives in the Oval Office, the president can take whatever course of action he wishes to take. What is important to note, however, is just how much the recommendations from the inferior offices limit those actions the president may take. Thus Congress must take into account not just the wishes of the president, but also the views of these inferior political players.
