Article I, Section 7, Clause 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.

Article I, Section 7, Clause 3 requires presentation to the President of all orders, resolutions, or votes in which both Houses of Congress must concur. This provision is sometimes called the Orders, Resolutions, and Votes Clause (ORV Clause) and, together with Article I, Section 7, Clause 2, forms part of the Presentment Clause.1 Some sources from the Founding and the early years of the Republic suggest that the Framers included the ORV Clause to prevent Congress from evading the veto clause by designating as something other than a bill measures intended to take effect as laws.2

If construed literally, the ORV Clause could have significantly slowed the legislative process by requiring presentment to the President of various intermediate matters. However, Congress has interpreted the Clause to limit its practical burden. At the request of the Senate, the Judiciary Committee in 1897 published a comprehensive report detailing how the Clause had been interpreted over the years. The report showed that the word “necessary” in the Clause had come to refer to necessity for law-making—that is, an order, resolution, or vote must be approved by both Chambers and presented to the President if it is to have the force of law. By contrast, “votes” taken in either House preliminary to the final passage of legislation need not be submitted to the other House or to the President, nor must concurrent resolutions merely expressing the views or “sense” of the Congress.3

The ORV Clause expressly excepts only adjournment resolutions and makes no explicit reference to resolutions proposing constitutional amendments. However, beginning with the Bill of Rights, congressional practice has been that resolutions proposing constitutional amendments need not be presented to the President for veto or approval. In Hollingsworth v. Virginia, the Court rejected a challenge to the validity of the Eleventh Amendment based on the assertion that it had not been presented to the President.4 Subsequent cases cite Hollingsworth for the proposition that presentation of constitutional amendment resolutions is not required.5

Footnotes

1

Article I, Section 7, Clause 2 requires presentment to the President of bills approved by both houses of Congress. See ArtI.S7.C2.1 Overview of Presidential Approval or Veto of Bills. One Supreme Court case discusses both provisions of the Presentment Clause together. INS v. Chadha, 462 U.S. 919 (1983). For additional discussion of Chadha, see ArtI.S7.C2.4 Legislative Veto.

2

See 2 Records of the Federal Convention of 1787, at 301–02, 304–05 (Max Farrand ed., 1937); 2 Joseph Story, Commentaries on the Constitution of the United States § 889, at 335 (1833). Recent scholarship presents a different possible explanation for the ORV Clause—that it was designed to authorize delegation of lawmaking power to a single House, subject to presentment, veto, and possible two-House veto override. Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005).

3

S. Rep. No. 1335, 54th Cong. (1896); 4 Hinds’ Precedents of the House of Representatives § 3483 (1907).

4

3 U.S. (3 Dall.) 378 (1798).

5

Although Hollingsworth did not necessarily so hold, see Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005), the Court has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229 (1920) (In Hollingsworth “this court settled that the submission of a constitutional amendment did not require the action of the President.” ); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (In Hollingsworth the Court “held Presidential approval was unnecessary for a proposed constitutional amendment.” ).