Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?

Abstract

The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This paper makes heavy use of foreign authority, including, Australian, British, Canadian, Indian, and New Zealand sources. Additionally, this paper criticizes prior domestic scholarship in this area. This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel. My opening article will appear at: Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822. Professor Aaron-Andrew P. Bruhl response to my opening article will appear at: Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574. My Reply to his response will appear at: Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.