The House of Representatives is scheduled to take up Senate Concurrent Resolution 32 today, a concurrent resolution to authorize the Clerk of the House to make technical corrections in the enrollment of H.R. 470. That makes this a good time to talk about everything that happens between Congress approving a bill and the President signing it. I’ll go Q&A style on this one.
Q: What’s enrollment?
A: Under Article I, section 7 of the Constitution, all bills must be passed by both the House and Senate and then presented to the President prior to becoming law. Enrollment is the congressional process that both physically prepares the legislation for presentment to the President, as well as verifies and certifies that the legislation has indeed passed both chambers, and done so in identical form.
Q: What regulates the process?
A: The Constitution is silent. Federal law (in the surprisingly fascinating Title I of the U.S. Code) provides the basic structure for engrossment and enrollment. Much of the detail is filled in by chamber rules and precedents of the House and Senate.
Q:Wait, what’s engrossment?
A: After a bill is passed by one chamber, 1 U.S.C. 106 requires that it be printed and signed by the corresponding chamber official, either the Clerk of the House or the Secretary of the Senate. Official copies of the bill are printed on either blue paper (House) or white paper (Senate), verified as accurate by the Clerk or Secretary, and then signed as an attestation to the accuracy. The signed version of the bill is the document that is physically transmitted to the other chamber for further consideration. The physical transfer of the papers is called “messaging.”
Q: Back to enrollment. Where does that fit in?
A: After both chambers have passed a bill in identical form, the papers are sent to the chamber that originated the bill, and enrolling clerks under either the Clerk/Secretary prepare the final version, which is called the enrolled version. The clerks again verify the accuracy of the bill as passed by the chambers, and the clerk/secretary of the originating chambers certifies it by signing the bill. The enrolled bill is then signed by the Speaker of the House and the presiding officer of the Senate, or a designee authorized under chamber rules or orders.
Q: How does the bill physically get to the President?
A: This is presentment. In the past, Congress had a joint committee on presentment. In modern times, the responsibility lies with the Clerk of the House or the Secretary of the Senate, depending which chamber had responsibility for enrollment, which turns on where the legislation originated. The materials are physically delivered to the White House (or, in some cases, to the President at a different location) and timestamped to verify the date on which the constitutional clock begins for the President to act on the measure. The Clerk/Secretary then report their actions back to the chamber.
Q: What can go wrong in engrossment and/or enrollment?
A: Any number of mistakes are plausible. The most important is an error that results in an engrossed/enrolled bill that doesn’t reflect the intent or actions of a chamber. On the intent side, this might occur if a chamber inadvertently takes a final vote on incorrect or incomplete text. Conversely, a chamber might vote on the intended text, but the engrossed or enrolled bill might contain different text. A second class of errors are technical ones, often errors made in drafting the original legislation, which then flowed through the legislative process. This could include wrong section numbers or table of contents mistakes. Third, errors could occur in the actual printing at GPO. Finally, at the enrolling phase, there is also the issue of non-identical texts being voted on in the second chamber.
Q: How are engrossment problems rectified?
A: During engrossment, typographical errors in GPO printing may be “star printed” to fix the problem without further House or Senate action. If the problem is technical or substantive in nature, then the question turns on who has possession of the papers. If the papers have not been transmitted to the other chamber, then the chamber can authorize (via unanimous consent) its own officials to changes. If the papers have already been transmitted across the Capitol, however, then the chamber must adopt a resolution requesting the return of the engrossed bill or resolution.
Q: What if a problem is discovered during enrollment?
A: It can only be corrected by concurrent resolution of the two chambers. That is what is going on with S.Con.Res.32 today. But like engrossment, it depends on where the bill is in the process. If the bill has not yet been signed by the Speaker or the presiding officer, a concurrent resolution can just direct the Clerk or Secretary to make necessary changes. If it has already been signed but not sent to the President, a concurrent resolution will also do the job, but must rescind the signatures as well, ultimately requiring re-enrollment. If the papers have already been delivered to the President but not signed into law, a concurrent resolution can request the return of the bill to Congress. If the President has already signed the bill into law, then a new law must be passed to make changes.
Q: What if a bill is enrolled but both chambers didn’t actually agree to the same text?
A: In theory, a federal court could strike down either an entire law or the portion of the law that was not properly enacted. In practice, the courts have tended to decline to do so. Under the 1892 Supreme Court decision in Marshall Field & Co. v. Clark (143 U.S. 649), the Court adopted a rule of not “looking behind” the enrollment process. That is, the courts will not seek to verify whether the legislation, as signed by the Speaker and Presiding Officer of the Senate, was properly enrolled. The became an issue in the 109th Congress, with P.L. 109-171. An error in Senate engrossment led to text being enrolled that was not the intent of either chamber. During the enrollment, the text was changed to what was the intention of both chambers, but no concurrent resolution was adopted to do so; in effect, text was enrolled that neither chamber has actually agreed upon in its final form. Several lawsuits were brought against the law on these grounds, but none were successful.
Q: When does the clock start on the President’s 10-day window to sign or veto a bill?
A: By custom, it starts when the bill gets to the White House. But this creates problems: what if the President is going abroad for two weeks — can Congress hold legislation and the present it to the White House then, in an attempt to circumvent a veto? It’s not clear. In the past, Presidents have informally negotiated with Congress to delay presentment in such situations, or to deem presentment to have taken place upon the President’s return.
Q: So does Congress have the perogative to not enroll/present bills passed by both chambers?
A: This is a tricky question, especially since the presentment is the job of one chamber, not both. In theory, it shouldn’t seem like Congress would ever want to permanently abandon presentment, since they are the ones trying to make the law. (One can think of wild hypotheticals such as the leader of a chamber vehemently opposing a bill and thus refusing to sign the enrolled copy, or a Congress that changed its mind about legislation post-enrollment, but they don’t seem realistic and probably have relatively simply remedies).
Q: What about delays in enrollment/presentment?
A: Yes. There are certain circumstances where delay in presentment might be in the institutional or political interest of Congress. First is in the case of pocket vetos. If Congress is worried that the President might pocket veto a law while they were adjourned in August or between sessions (to avoid an override attempt or a veto message), they might hold a presentment until there were less than 10 days until they returned from adjournment. (Of course, the constitutionality of the pocket veto in non sine a die adjournment situations is hotly contested and a muddled area of Court rulings).
Q: When else?
A: Politically, there are a few situations in which delay might be profitable. The first is if a veto is expected. In those cases, the congressional leadership might like some extra time to begin building both a public case in favor of the bill (to put pressure on the President) and an internal whipping operation to solidify congressional support for an override. This was apparently the case in 1991, when Congress held a unemployment benefits bill for eight days, while leaders gathered support for overriding an expected veto. Another situation would be in the timing of multiple bills. If Congress passed bill A, which the President likes, but not yet bill B, on which they fear he will veto, they might hold bill A while bill B passes, and then send bill B to the White House first, keeping bill A in reserve as leverage in the hopes the President will sign bill B. Finally, congressional leaders may have political incentives to delay signing an enrolled bill if they wish to publicly promote the bill in a “signing ceremony,” which might benefit from advantageous, but delayed, scheduling.
Q: How long can Congress delay enrollment and presentment?
A: It’s not clear. The Constitution is silent on the matter, and so it is likely that the only controlling rules would be either federal law or chamber rules. Chamber rules do not specify a time limit on the clerical tasks related to enrollment. Presentment, however, is supposed to occur “forthwith” after the enrolled bill is signed. This raises a second issue, which is that strategic delays in enrollment and presentment are difficult to distinguish from one another, given that any delay might be occurring before or after signatures had been affixed. In any case, it is unlikely that enrollment and presentment would be seen as anything but an internal congressional issue, and therefore delays could only be remedied by floor action in one or both chambers.
As a general matter, enrollment might be expected to take at least some amount of time, simply because the bill needs to be printed, reviewed, and signed. Depending on length, the typical bill can be enrolled in a relatively short time — in most Congresses the average time between second-chamber passage of a bill and presentment is only a handful of days. And in the case of many bills, same-day presentment has bee accomplished. On the other hand, H.R. 1757 in the 105th Congress had a 176 day delay between second-chamber passage and presentment.