Rolled by the “Enrolled Bill” Rule:

Yesterday the U.S. Court of Appeals for the D.C. circuit turned away Public Citizen’s challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.

The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards, upheld the district court’s holding that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.'” Once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement. This “enrolled bill” rule precludes the sort of challenge Public Citizen sought to advance. Public Citizen sought to distinguish its case from Marshall Field in various ways, or suggest that the decision had been tacitly overruled, but the D.C. Circuit rejected these arguments.

One interesting aspect of the court’s ruling is it’s conclusion that the enrolled bill rule presents a threshold question that may be resolved before concluding that the court has jurisdiction to hear the claim in the first place. Therefore, the D.C. Circuit concluded, it could dismiss the case under the enrolled bill rule before determining whether Public Citizen had standing to challenge the legality of the DRA in the first place. According to the court, it “is not obliged to decided jurisdictional issues before certain nonjurisdictional rules designed not merely to defeat the asserted claims, but to preclude judicial inquiry.” In this case, the enrolled bill rule established by Marshall Field is “a non-merits threshold ground for dismissal.”

Also interesting to note are the two rationales for the enrolled bill rule established in Marshall Field: separation of powers and the need for certainty in “the statute laws of the land.” The Court rejected the idea that the judiciary should challenge the validity of laws that the two political branches attest were passed in accordance with the relevant constitutional requirements. Such a “spectacle” would subordinate” the legislature to the judiciary and “disregard” its coequal position in the government. Moreover, it could lead to unnecessary uncertainty in the law.

Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act . . . should at any and all times be liable to be put in issue and impeached . . . . Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.

Thus, an enrolled bill attested to by the Congressional leadership is itself “conclusive evidence” that it was passed by Congress and “the enrollment itself is the record, which is conclusive as to what the statute is.”

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