Hey, Congress! Think You Passed a Law? We Don’t.
The FAA has suspended all employee furloughs, and they say things will be back to normal soon. This is in anticipation of the president signing legislation Congress passed to lift the sequester as to the FAA.
But we don’t think he can sign the bill, because we don’t think Congress passed it.
There is outrage in some quarters about the bill or bills “passed” last week to side-step sequestration‘s effects on the Federal Aviation Administration. Under the threat of flight delays, the bills allow the Department of Transportation to move funds around and unclog things at FAA.
But Congress acted in such haste that it may not have actually passed identical legislation in both houses.
This gets complicated fast, so stow your carry-ons, restore your seat to its upright position, and buckle your seat belt.
The Constitution 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.” The use of the singular means there can’t be two pretty similar bills. One bill—the exact same—per law.
So what happened with the FAA de-sequester?
First, on Thursday, the Senate passed S. 853, the Reducing Flight Delays Act of 2013, which had been introduced earlier that day. You can view the text of Senate-passed bill on page S3069 of Thursday’s Congressional Record, or in text or PDF on the Government Printing Office site. The text matters.
Apparently, someone determined that the Senate bill was a revenue measure, which must originate in the House. (This is according to The Hill.) I don’t think it is (take a look at the complicated rules in this area if you want).
Whatever the case, after passing the bill Thursday, the Senate agreed that a bill coming from the House that was identical to the Senate-passed bill would be automatically passed by the Senate.
Here’s the language of the Senate unanimous consent request. The text matters again, because it uses the word “ïdentical”:
Mr. REID. Madam President, I ask unanimous consent that if the Senate receives a bill from the House and the text of that bill is identical to S. 853, the bill then be considered read three times and passed and the motion to re-consider be considered made and laid upon the table.
So when on Friday the House passed H.R. 1765, that was supposed to wrap things up. It would go to the Senate for automatic passage followed by a trip down Pennsylvania Avenue to the White House for the president’s signature.
But at about the same time as the Hill story was reporting that the bill was greased to be sent to the president, something else was going on. Exactly why it happened, I can only guess, but Rep. Tom Latham (R-IA), the sponsor or H.R. 1765, came to the House floor, where he sought and received unanimous consent to change the language of that House-passed bill.
“Mr. Speaker,” he said, “I ask unanimous consent that in the engrossment of H.R. 1765, the Clerk strike ‘account’ on page 2, line 14, and insert ‘accounts.’” This is done once in a while in the House to fix errors, telling the clerk to do it before sending it on to the Senate or president.
The word “account” appears three times in the bill. It’s hard to know which of the three instances of “account” he was referring to, but the version of the bill published by the House Rules Committee on Friday morning has “account” on page 2, line 14.
“Account” refers to appropriations accounts—they’re basically bank accounts at the Treasury Department. There are hundreds of them, and each one is used for different purposes at different agencies.
The bill originally passed by the House referred to a single appropriations account that funds the FAA, but there are probably more than one. Perhaps folks in the House realized that they have to give the Transportation Department authority to move funds from any number of accounts or else the bill wasn’t going to work. Thus, the change from “account” to “accounts.”
Still, things are strange. If I’m right about the first instance of “account” at line 14 being changed, that makes the sentence non-grammatical. The second instance of “account,” in that same sentence, have been changed, too. The third time “account” appears in the bill is in a place where it doesn’t matter whether it’s singular or plural because it’s preceded by the indefinite article “any.”
Whatever the case, the word “accounts” (plural) doesn’t appear anywhere in the Senate-passed bill.
That means that the House did not send an identical version of the Senate-passed bill. And that means that the unanimous consent agreement in the Senate to pass an identical bill does not apply.
H.R. 1765 did not pass the Senate.
Now, that’s a lot of mumbo-jumbo and dancing on the head of a pin. But it’s also the legislative process of our national government. People who respect it and believe it deserves respect take it seriously. People who take our government and the rule of law seriously take seriously the constitutional rule that the House and Senate must pass identical bills. They take seriously the exact terms of unanimous consent agreements in the Senate and the House.
Can Congress and the president agree that they have passed a law just because they meant to, even if they didn’t? Or do they have to follow the regular procedures to the very last letter, even if there’s an extra letter “s”?
It’s a good thing to discuss while the bill gets the five days of online public review that President Obama promised when he campaigned for president. We expect the bill will soon show up on Whitehouse.gov’s “Pending Legislation” page, at which time it will have its five days of Sunlight Before Signing.