[Congressional Record Volume 143, Number 1 (Tuesday, January 7, 1997)]
[Extensions of Remarks]
[Pages E2-E3]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  CONCERNING A CONGRESSIONAL FAILURE TO COMPLY WITH THE CONSTITUTION 
                       DURING THE 104TH CONGRESS

                                 ______
                                 

                          HON. DAVID E. SKAGGS

                              of colorado

                    in the house of representatives

                        Tuesday, January 7, 1997

  Mr. SKAGGS. Mr. Speaker, I want to call to the attention of the House 
what appears to be a failure of the Congress to comply with a clear and 
basic constitutional mandate.
  Section 7 of article I--known as the presentment clause--says ``Every 
bill which shall have passed the House of Representatives and the 
Senate shall, before it become a law, be presented to the President of 
the United States'' for approval or veto. Nothing could be clearer--if 
a bill is passed by both bodies, it must be presented to the President. 
The Constitution does not allow for any exceptions. Yet during the 
104th Congress, an exception was made on one occasion, the 
constitutional mandate notwithstanding.
  As Members who served in the last Congress will remember, last year 
the leadership of both the House and Senate decided to expedite our 
adjournment by combining various 1997 appropriations usually dealt with 
in separate measures into a single omnibus appropriations bill. It was 
also decided, for tactical reasons, to have two versions of that 
omnibus bill--one being a conference report on a 1997 defense 
appropriations measure, the other being a new, freestanding bill, H.R. 
4278. H.R. 4278 came to be known in Capitol parlance as the ``clone'' 
omnibus appropriations bill.
  Accordingly, on September 28, 1996, the House agreed to consider the 
conference report and also agreed that if the conference report was 
adopted, H.R. 4278, the clone bill, also would be deemed passed.
  The House did pass the conference report on September 28, and on 
September 30, 1996, both that conference report and H.R. 4278 were 
considered and approved by the Senate as well. In fact, the Senate 
passed the clone bill, without amendment, by a separate rollcall vote 
of 84 to 15.
  In short, last year two omnibus 1997 appropriations bills were passed 
in identical form by both the House and the Senate. Constitutionally, 
both bills had equal standing, and both should have been presented to 
the President. Even though the President predictably would have let one 
die by pocket veto.
  This requirement was not met. The conference report was presented to 
the President and was signed into law. But the normal, constitutional 
procedures were not followed with respect to the other bill, H.R. 4278.
  Before a bill can be presented to the President, it must be enrolled 
and signed by the Speaker and by the President of the Senate, or others 
empowered to act for them, to attest that it has in fact been passed by 
both bodies. And, before a House bill--such as H.R. 4278--can be 
enrolled, the bill and related papers must be returned to the House by 
the Senate. In the case of H.R. 4278, evidently, this normally routine 
step was not taken. The bill was not returned to the House, and so it 
was never enrolled, never signed by the Speaker or anyone else 
authorized to sign it, and never presented to the President--despite 
the clear mandate of the Constitution.

  We should see this failure to comply with the Constitution as a 
serious and troubling matter.
  Because I understood that the breakdown had occurred on the other 
side of the Capitol, I raised the matter with the majority leader of 
the Senate in a telephone conversation and, subsequently, in a letter 
which I ask unanimous consent be included in the Record at the 
conclusion of my remarks.
  As I noted then, I can understand why, as a practical matter, it 
might seem redundant to send two identical bills to the President. But 
the Constitution doesn't give Members of Congress--even leaders--the 
authority to selectively withhold from the President any bill that has 
passed both Houses. And while in this case refusing to send H.R. 4278 
to the President won't make a practical difference--since an identical 
measure has been signed into law--it is easy to imagine how it could 
set a bad, even a dangerous precedent in other circumstances.
  It was my hope, Mr. President, that when this matter was called to 
the attention of the leadership, steps would be taken to make sure that 
H.R. 4278 was duly enrolled, signed, and presented to the President. 
Unfortunately, that did not occur and, now that a new Congress has 
begun, it evidently cannot occur.
  That is very regrettable and, as I've already said, something that I 
think we need to take seriously. As Members of Congress, we have each 
sworn to uphold the Constitution. If we are to be faithful to that 
oath, we must make sure that Congress in the future meets its 
constitutional requirements, including those imposed by the presentment 
clause.
  Mr. Speaker, for the information of the House, I include at this 
point my letter of December 23, 1996, to the majority leader of the 
Senate concerning this matter.

                                     House of Representatives,

                                Washington, DC, December 23, 1996.
     Hon. Trent Lott,
     Senate Majority Leader,
     Washington, DC.
       Dear Trent: Thanks very much for calling me at home a 
     second time last week; sorry to have missed your first try. I 
     greatly appreciate having been able to talk with you about 
     the so-called ``clone'' omnibus appropriations bill. As I 
     mentioned, I have some serious concerns about the way the 
     bill has been handled.
       On September 28, the House agreed to consider the 
     conference report regarding H.R. 3610 (the omnibus 
     consolidated appropriations bill for fiscal 1997) and agreed 
     that, upon adoption of that conference report, H.R. 4278 (a 
     separate, identical measure) would also be considered as 
     passed.
       As you know, the House did pass the conference report, and 
     on September 30, both the conference report and H.R. 4278 
     were considered and approved by the Senate as well, the 
     latter being passed without amendment by a vote of 84-15 
     (rollcall number 302). However, while H.R. 3610 was presented 
     to the President on September 30 (and signed into law as P.L. 
     104-208), I understand that the Senate has not yet returned 
     to the House the papers related to H.R. 4278, and as a 
     consequence the House (where the bill originated) has been 
     unable to take the steps necessary for the bill to be 
     presented to the President in accordance with Section 7 of 
     Article I of the Constitution (the ``presentment clause'').
       It's true that enactment of P.L. 104-208 means that 
     enactment of H.R. 4278 would be redundant. However, the 
     presentment

[[Page E3]]

     clause's requirement that ``Every Bill which shall have 
     passed the House of Representatives and the Senate shall, 
     before it become a law, be presented to the President of the 
     United States'' does not provide an exception for such 
     circumstances. I am unaware of any Constitutional authority 
     for a measure passed in identical form by both the House and 
     Senate to be selectively withheld from presentment to the 
     President for his approval or veto.
       It seems to me that any failure to fulfill the requirements 
     of the Constitution in this case would set a troublesome 
     precedent. While it has no practical consequence in this 
     instance, a decision here not to complete the mandated 
     administrative steps after passage could be cited later as 
     precedent for a similar inaction carrying more problematic 
     results. Therefore, I urge you to take all necessary steps to 
     ensure that H.R. 4278 can be properly enrolled and presented 
     to the President, as required by the Constitution.
       Thank you very much for you attention and assistance.
       With best personal regards,
           Sincerely yours,
     David E. Skaggs.

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