No Runny Eggs

The repository of one hard-boiled egg from the south suburbs of Milwaukee, Wisconsin (and the occassional guest-blogger). The ramblings within may or may not offend, shock and awe you, but they are what I (or my guest-bloggers) think.

Wednesday HOT read – Field v. Clark

by @ 8:12 on March 17, 2010. Filed under Health Care Reform, Lawgivers-In-Black, Politics - National.

Yes, there is a reason why I fully-capitalized “HOT” in the title. Once you’re done reading the portion of the opinion of the Supreme Court in Field v. Clark (courtesy dealing with a challenge regarding differences between an “enrolled” bill as signed by the President and the same bill as voted out of Congress, your blood will be boiling at the worst decision of SCOTUS ever, yes, even worse than the Dred Scott decision.

First, a bit of background. Yesterday, Mark Tapscott kicked over an anthill when he found that Nancy Pelosi and Louise Slaughter are hypocrites when it comes to the Constitutional requirement that a bill that is presented to the President be voted on by both Houses in identical form. Ed Morrissey, among others, noted that the group Pelosi and Slaughter sided with in 2005 lost their challenge that the House passed a slightly-different (specifically, a two-character difference) version of a bill than the Senate, with the appellate court relying on Marshall.

That led me to the actual Marshall decision, and I note that, while there is a dissent-in-part, that dissent does not extend to this portion of the opinion of the Court. Rather than excerpt it, I’ll give you the entire section that deals with the differences between the “enrolled” and “voted upon” versions of the bill in question, starting at 143 U.S. 662:

MR. JUSTICE HARLAN delivered the opinion of the Court.

Duties were assessed and collected, according to the rates established by what is known as the “Tariff Act of October 1, 1890,” on woolen dress goods, woolen wearing apparel, and silk embroideries, imported by Marshall Field & Co., on silk and cotton laces imported by Boyd, Sutton & Co., and on colored cotton cloths imported by Herman, Sternbach & Co. 26 Stat. 567, c. 1244, § 1.

The importers severally protested against the assessment upon the ground that the act was not a law of the United States. Upon appeal to the Board of General Appraisers under the Act of June 10, 1890, known as the “Customs Administrative Act,” the decision of the collector in each case was approved, c. 407, secs. 14, 15, pp. 131, 137. The judgment of the board having been affirmed by the circuit courts of the United States in the respective districts in which these matters arose, the cases have been brought here for review.
The appellants question the validity of the Act of October 1, 1890, upon three grounds, to be separately examined.

First. The seventh section of Article I of the Constitution of the United States provides:

“All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if the 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. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases, the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house, respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.”

“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.”
The Revised Statutes provide that

“Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Secretary of State from the President, and whenever a bill, order, resolution, or vote is returned by the President with his objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Secretary of State from the President of the Senate, or Speaker of the House of Representatives, in whichsoever house it shall last have been so approved, and he shall carefully preserve the originals.”

The original enrolled act in question, designated on its face “H.R. 9416,” was received at the Department of State October 1, 1890, and, when so received, was attested by the signatures of Thomas B. Reed, Speaker of the House of Representatives, and Levi P. Morton, Vice-President of the United States and President of the Senate, and had thereon these endorsements:

“Approved October 1, 1890 BENJ. HARRISON”

“I certify that this act originated in the House of Representatives.”


It is made the duty of the Secretary of State to furnish to the congressional printer

“a correct copy of every act and joint resolution as soon as possible after its approval by the President or after it has become a law, in accordance with the Constitution, without such approval.”
That duty was performed by the Secretary of State with respect to the act in question, and the act appears in the volume of statutes published and distributed under the authority of the United States. Rev.Stat. §§ 210, 3803, 3805, 3807, 3808.

The contention of the appellants is that this enrolled act, in the custody of the Secretary of State and appearing upon its face, to have become a law in the mode prescribed by the Constitution, is to be deemed an absolute nullity in all its parts, because — such is the allegation — it is shown by the congressional records of proceedings, reports of committees of each house, reports of committees of conference, and other papers printed by authority of Congress, and having reference to House Bill 9416, that a section of the bill, as it finally passed, was not in the bill authenticated by the signatures of the presiding officers of the respective houses of Congress and approved by the President. The section alleged to have been omitted was as follows:

“SEC. 30. That on all original and unbroken factory packages of smoking and manufactured tobacco and snuff, held by manufacturers or dealers at the time the reduction herein provided for shall go into effect, upon which the tax has been paid, there shall be allowed a drawback or rebate of the full amount of the reduction, but the same shall not apply in any case where the claim has not been presented within sixty days following the date of reduction, and such rebate to manufacturers may be paid in stamps at the reduced rate, and no claim shall be allowed or drawback paid for a less amount than five dollars. It shall be the duty of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to adopt such rules and regulations, and to prescribe and furnish such blanks and forms, as may be necessary to carry this section into effect. For the payment of the rebates provided for in this section there is hereby appropriated any money in the Treasury not otherwise appropriated.”

The argument, in behalf of the appellants, is that a bill, signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. In view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted. There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, not in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress.

But this concession of the correctness of the general principle for which the appellants contend does not determine the precise question before the Court, for it remains to inquire as to the nature of the evidence upon which a court may act when the issue is made as to whether a bill, originating in the House of Representatives or the Senate, and asserted to have become a law, was or was not passed by Congress. This question is now presented for the first time in this Court. It has received, as its importance required that it should receive, the most deliberate consideration. We recognize, on one hand, the duty of this Court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the consequences that must result if this Court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been authenticated by the signatures of the presiding officers of the two houses of Congress, and by the approval of the President, and been deposited in the public archives as an act of Congress, was not in fact passed by the House of Representatives and the Senate, and therefore did not become a law.

The clause of the Constitution upon which the appellants rest their contention that the act in question was never passed by Congress is the one declaring that

“Each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment require secrecy, and the yeas and nays of the members of either house on any question shall at the desire of one-fifth of those present, be entered on the journal.”

Article I, Section 5. It was assumed in argument that the object of this clause was to make the journal the best, if not conclusive, evidence upon the issue as to whether a bill was in fact passed by the two houses of Congress. But the words used do not require such interpretation. On the contrary, as Mr. Justice Story has well said,

“the object of the whole clause is to insure publicity to the proceedings of the legislature and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism and integrity and wisdom obtain their due reward, and votes are ascertained, not by vague conjecture, but by positive facts. . . . So long as known and open responsibility is valuable as a check or an incentive among the representatives of a free people, so long a journal of their proceedings and their votes, published in the face of the world, will continue to enjoy public favor and be demanded by public opinion.”

2 Story on the Constitution §§ 840, 841.

In regard to certain matters, the Constitution expressly requires that they shall be entered on the journal. To what extent the validity of legislative action may be affected by the failure to have those matters entered on the journal we need not inquire. No such question is presented for determination. But it is clear that in respect to the particular mode in which, or with what fullness, shall be kept the proceedings of either house relating to matters not expressly required to be entered on the journals; whether bills, orders, resolutions, reports, and amendments shall be entered at large on the journal, or only referred to and designated by their titles or by numbers — these and like matters were left to the discretion of the respective houses of Congress. Nor does any clause of that instrument either expressly or by necessary implication prescribe the mode in which the fact of the original passage of a bill by the House of Representatives and the Senate shall be authenticated or preclude Congress from adopting any mode to that end which its wisdom suggests. Although the Constitution does not expressly require bills that have passed Congress to be attested by the signatures of the presiding officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under which the two bodies have acted since the organization of the government require that mode of authentication.

The signing by the Speaker of the House of Representatives and by the President of the Senate, in open session, of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill thus attested receives his approval and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept as having passed Congress all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act so authenticated is in conformity with the Constitution.

It is admitted that an enrolled act thus authenticated is sufficient evidence of itself — nothing to the contrary appearing upon its face — that it passed Congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form in which it was signed by the presiding officers of the two houses and approved by the President. It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act in the custody of the Secretary of State, attested by the signatures of the presiding officers of the two houses of Congress and the approval of the President, is conclusive evidence that it was passed by Congress according to the forms of the Constitution would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate officers charged with the duty of keeping them.

The views we have expressed are supported by numerous adjudications in this country, to some of which it is well to refer. In Pangborn v. Young, 32 N.J.Law 29, 37, the question arose as to the relative value as evidence of the passage of a bill of the journals of the respective houses of the legislature and the enrolled act, authenticated by the signatures of the speakers of the two houses and by the approval of the governor. The bill there in question, it was alleged, originated in the House and was amended in the Senate, but as presented to and approved by the governor did not contain all the amendments made in the Senate. Referring to the provision in the Constitution of New Jersey requiring each house of the legislature to keep a journal of its proceeding — which provision is in almost the same words as the above clause quoted from the federal Constitution — the court, speaking by Chief Justice Beasley, said that it was impossible for the mind not to incline to the opinion that the framers of the Constitution, in exacting the keeping of the journals, did not design to create records that were to be the ultimate and conclusive evidence of the conformity of legislative action to the constitutional provisions relating to the enactment of laws. In the nature of things, it was observed, these journals must have been constructed out of loose and hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly. The Chief Justice said:

“Can anyone deny that if the laws of the state are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all written law will be shaken to its very foundation? Certainly no person can venture to say that many of our statutes, perhaps some of the oldest and most important, those which affect large classes of persons or on which great interests depend, will not be found defective, even in constitutional particulars, if judged by this criterion. . . . In addition to these considerations, in judging of consequences, we are to remember the danger, under the prevalence of such a doctrine, to be apprehended from the intentional corruption of evidences of this character. It is scarcely too much to say that the legal existence of almost every legisaltive act would be at the mercy of all persons having access to these journals, for it is obvious that any law can be invalidated by the interpolation of a few lines or the obliteration of one name and the substitution of another in its stead. I cannot consent to expose the state legislature to the hazards of such probable error or facile fraud. The doctrine contended for on the part of the evidence has no foundation, in my estimation, on any considerations of public policy.”

The conclusion was that, upon grounds of public policy as well as upon the ancient and well settled rules of law, a copy of a bill bearing the signatures of the presiding officers of the two houses of the legislature and the approval of the governor, and found in the custody of the Secretary of State, was conclusive proof of the enactment and contents of a statute, and could not be contradicted by the legislative journals or in any other mode. These principles were affirmed by the New Jersey Court of Errors and Appeals in Freeholders of Passaic v. Stevenson, 46 N.J.Law 173, 184, and in Standard Underground Co. v. Attorney General, 46 N.J.Eq. 270, 276.

In Sherman v. Story, 30 Cal. 253, 276, the whole subject was carefully considered. The court, speaking through Mr. Justice Sawyer, said:

“Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times, be liable to be put in issue and impeached by the journals, loose papers of the legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable. . . . The result of the authorities in England and in the other states clearly is that at common law, whenever a general statute is misrecited, or its existence denied, the question is to tried and determined by the court as a question of law — that is to say, the court is bound to take notice of it and inform itself the best way it can; that there is no plea by which its existence can be put in issue and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself is the record, which is conclusive as to what the statute is, and cannot be impeached, destroyed, or weakened by the journals of Parliament or any other less authentic or less satisfactory memorials, and that there has been no departure from the principles in the United States except in instances where a departure has been grounded on, or taken in pursuance of, some express constitutional or statutory provision requiring some relaxation of the rule in order that full effect might be given to such provisions, and in such instances the rule has been relaxed by judges with great caution and hesitation, and the departure has never been extended beyond an inspection of the journals of both branches of the legislature.”

The provisions of the California Constitution, in force when the above case was decided relating to the journals of legislative proceedings, were substantially like the clause upon that subject in the Constitution of the United States. The doctrines of the above case were reaffirmed in People v. Burt, 43 Cal. 560. But it should be observed that at a subsequent date, a new Constitution was adopted in California under which the journals have been examined to impeach an enrolled bill. County of San Mateo v Southern Pacific Railroad Co., 13 F.7d 2.

A case very much in point is Ex Parte Wren, 63 Miss. 512, 527, 532. The validity of a certain act was there questioned on the ground that although signed by the presiding officers of the two houses of the legislature and approved by the governor, it was not law because it appeared from the journals of those bodies, kept in pursuance of the constitution, that the original bill, having passed the house, was sent to the senate, which passed it with numerous amendments, in all of which the house concurred, but the bill as approved by the governor did not contain certain amendments which bore directly upon the issues in the case before the court. The court, in a vigorous opinion delivered by Mr. Justice Campbell, held that the enrolled act, signed by the president of the senate and the speaker of the house of representatives and the governor, is the sole exposition of its contents, and the conclusive evidence of its existence according to its purport, and that it is not allowable to look further to discover the history of the act or ascertain its provisions. After a careful analysis of the adjudged cases, the court said:

“Every other view subordinates the legislature and disregards that coequal position in our system of the three departments of government. If the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, difficulty, and painful uncertainty appalling in its contemplation, and multiplying a hundred-fold the alleged uncertainty of the law. Every suit before every court where the validity of a statute may be called in question as affecting the right of a litigant will be in the nature of an appeal or writ of error or bill of review for errors apparent on the face of the legislative records, and the journals must be explored to determine if some contradiction does not exist between the journals and the bill signed by the presiding officers of the two houses. Where the law is to be declared by the court, it must inform itself as best it can what is the law. If it may go beyond the enrolled and signed bill, and try its validity by the record contained in the journals, it must perform this task as often as called on, and every court must do it. A justice of the peace must do it, for he has as much right, and is as much bound, to preserve the Constitution and declare and apply the law as any other court, and we will have the spectacle of examination of journals by justices of the peace, and statutes declared to be not law as the result of their journalistic inquiry, and the circuit and chancery courts will be constantly engaged in like manner, and this court, on appeal, have often to try the correctness of the determination of the court below as to the conclusion to be drawn from the legislative journals on the inquiry as to the validity of the statutes thus tested. . . . Let the courts accept as statutes, duly enacted, such bills as are delivered by the legislature as their acts, authenticated as such in the prescribed mode.”

In Weeks v. Smith, 81 Me. 538, 547, it was said:

“Legislative journals are made amid the confusion of a dispatch of business, and therefore much more likely to contain errors than the certificates of the presiding officers to be untrue. Moreover, public policy requires that the enrolled statures of our state, fair upon their faces, should not be put in question after the public have given faith to their validity. No man should be required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and the president of the senate and approved by the governor, is a statute or not. The enrolled act, if a public law, and the original, if a private act, have always been held in England to be records of the highest order, and, if they carry no ‘death wounds’ in themselves, to be absolute verity, and of themselves conclusive.”

To the same general effect are Brodnax v. Commissioners, 64 N.C. 244, 248; Nevada v. Swift, 10 Nev. 176; Evans v. Browne, 30 Ind. 514; Edger v. Randolph County Comm’rs, 70 Ind. 331, 338; Pacific Railroad v. Governor, 23 Mo. 353, 362, et seq.; Lottery Co. v. Richoux, 23 La.Ann. 743. There are cases in other state courts which proceed upon opposite grounds from those we have indicated as proper. But it will be found upon examination that many of them rested upon constitutional or statutory provisions of a peculiar character, which, expressly or by necessary implication, required or authorized the court to go behind the enrolled act when the question was whether the act, as authenticated and deposited in the proper office, was duly passed by the legislature. This is particularly the case in reference to the decisions in Illinois. Spangler v. Jacoby, 14 Ill, 297; Turley v. County of Logan, 17 Ill. 151; Prescott v. Canal Trustees, 19 Ill. 324; Supervisors v. People, 25 Ill. 181; Ryan v. Lynch, 68 Ill. 160; People v. Baranes, 35 Ill. 121. In the last-named case, it was said:

“Were it not for the somewhat peculiar provision of our constitution, which requires that all bills, before they can become laws, shall be read three several times in each house and shall be passed by a vote of a majority of all the members-elect, a bill thus signed an approved would be conclusive of its validity and binding force as a law. . . . According to the theory of our legislation, when a bill has become a law, there must be record evidence of every material requirement, from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.”

But the court added:

“We are not, however, prepared to say that a different rule might not have subserved the public interest equally well, leaving the legislature and the executive to guard the public interest in this regard, or to become responsible for its neglect.”

The case of @ 73 U. S. 511, was relied on in argument as supporting the contention of the appellants. The question there was as to the time when an act of Congress took effect, the doubt upon that point arising from the fact that the month and day, but not the year, of the approval of the act by the President appeared upon the enrolled act in the custody of the Department of State. This omission, it was held, could be supplied in support of the act from the legislative journals. It was said by the Court:

“We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.”

There was no question in that case as to the existence or terms of a statute, and the point in judgment was that the time when an admitted statute took effect, not appearing from the enrolled act, could be shown by the legislative journals. It is scarcely necessary to say that that case does not meet the question here presented.

Nor do the cases of South Ottawa v. Perkins, 94 U. S. 260; Walnut v. Wade, 103 U. S. 683, and Post v. Supervisors, 105 U. S. 667, proceed upon any ground inconsistent with the views we have expressed. In each of those cases, it was held that the question whether a seeming act of the legislature became a law in accordance with the Constitution was a judicial one, to be decided by the courts and judges, and not a question of fact to be tried by a jury, and without considering the question on principle, this Court held, in deference to the decisions of the Supreme Court of Illinois interpreting the constitution of that state, that it was competent for the court, in determining the validity of an enrolled act, to consult the legislative journals.

Some reliance was also placed by appellants upon section 895 of the Revised Statutes, providing that
“Extracts from the journals of the Senate, or of the House of Representatives, and of the executive journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.”

But referring now only to matters which the Constitution does not require to be entered on the journals, it is clear that this is not a statutory declaration that the journals are the highest evidence of the facts stated in them, or complete evidence of all that occurs in the progress of business in the respective houses, much less that the authentication of an enrolled bill by the official signatures of the presiding officers of the two houses and of the President, as an act which has passed Congress and been approved by the President, may be overcome by what the journal of either house shows or fails to show.

We are of opinion, for the reasons stated, that it is not competent for the appellants to show, from the journals of either house, from the reports of committees, or from other documents printed by authority of Congress, that the enrolled bill, designated “H.R. 9416,” as finally passed, contained a section that does not appear in the enrolled act in the custody of the State Department.

Allow me to translate that for you – as of right now, the ONLY court-acceptable evidence that an “enrolled bill” actually passed Congress, or was even introduced into either House of Congress, is the signatures of the Speaker of the House and the Vice President (or presumably the Senate President Pro Tempore) on said “enrolled bill”. That’s right – a troka of the Speaker, Vice President and President have had the power to unilaterally enact law regardless of the other 534 members of Congress and indeed the Constitution for the last 118 years.

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