Respecting Who Legislates: Congresses and Presidents

Authors

• John Q. Barrett

Document Type

Symposium

Abstract

(Excerpt)

Under the United States Constitution, who legislates? The Constitution says, in plain words, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” So people who know the Constitution tend to say that “Congress” legislates.

There are two problems with that answer. The first is rhetorical: that summary answer is too disembodied. “Congress,” when it passes a bill, in fact, is many, typically highly respectable, elected Senators and Representatives. At minimum, 269 people—fifty-one Senators (or fifty Senators plus one Vice President of the United States, acting as President of the Senate and breaking a tie vote) plus 218 Representatives—need to vote for a bill before it can move toward becoming law.

A second problem is substantive: the statement that “Congress” legislates is almost always incorrect. In addition to 269 people performing Article I roles, the usual additional law-enactor is the President of the United States. The President is constitutionally required to participate in the federal process of legislating—he, by signing a congressionally-passed bill, makes it become law (legislation). (My hedging phrase “almost always” is a nod toward the Constitution’s alternative path to federal legislation: a bill, passed by both houses of Congress, presented to the President, but then vetoed by him, nonetheless becomes law if two-thirds of the Representatives and then two-thirds of the Senators vote to override that veto.)