The Concurrent Resolution, and what it doesn’t do

TN-5 candidate incorrect about solution to ObamaCare

This year, the President and Congress set this country on a dangerous and costly path with the passage of the Patient Protection and Affordable Care Act.   Certain provisions of the bill, including the law’s individual mandates, are blatantly unconstitutional and should be struck when considered by the courts.

Republicans running for office this year are campaigning on the promise to repeal of that law and replace it with a better alternative and are pledging to work with all their power to achieve that goal.  If we are to reach that result, however, candidates must keep focused on what will work and avoid getting sidetracked by gimmicks.

CeCe Heil, one of the candidates in the 5th Congressional District race in Tennessee is promoting an idea to nullify the healthcare law that purports to avoid the courts, a presidential veto, or any of the other normal hurdles to passage of legislation.  The idea?  Pass a “concurrent resolution” declaring the law unconstitutional.  Mrs. Heil claims that the law will, as a result, be “stricken from the books.”[i]

Sound too good to be true?  That’s because it is.

Because that idea seemed inconsistent with my understanding of the powers designated to Congress and the Supreme Court in the constitution, I consulted with Bill Outhier, who served as Republican Chief Counsel for the U.S. Senate Governmental Affairs Committee and has extensive experience working on passage of legislation in Congress.   He confirmed my thoughts and provided me with some of the relevant law.

As I thought, Congress simply cannot strike an enacted law from the books by concurrent resolution.  Article I, Sec. 7 of the Constitution requires that, before a measure can become law (or an existing law can be repealed), it must be passed by both houses and presented to the president so he may have the opportunity to veto it. [ii] A concurrent resolution, however, is a non-binding measure used mainly to set up joint committees, determine adjournment dates, and to express the sense of the Congress on matters without creating actual law.  It is not sent to the president and does not conform to Article I. [iii]

Indeed, when Congress has tried using concurrent resolutions to prevent the executive branch from carrying out laws in the past, the Supreme Court has declared such legislative vetoes unconstitutional.[iv]

Mrs. Heil’s confusion apparently stems from a misreading of a paragraph from American Jurisprudence, recently cited in a debate as authority for the idea and quoted on her website.  Curiously, no Constitutional provisions are being cited.  For those that are not aware, AmJur is a summary of statutes and court decisions.  It is not law itself and certainly does not trump the U.S. Constitution.

The paragraph cited states that an unconstitutional law is null and void once it is passed.  That, of course, is true.  If a law is declared unconstitutional, it is considered void from the moment it was passed.

But it’s the Supreme Court pursuant to Article III, not Congress, that determines whether a law is constitutional once it’s enacted.  That’s an example of the Separation of Powers doctrine we all learned about in school and is one of the checks and balances that keep any one branch of government from becoming too powerful.  In fact, this is clearly explained only a few pages earlier in that same volume of AmJur.[v]

Why does this matter?  Wasting time playing games that will result in a PR victory for the president when they fail does more harm than good.  The whole problem today is people in Washington are spending too much time playing games.

The American people opposed the healthcare legislation.  The American people want that law repealed and real reform enacted in its place.  The job is to get that done (if it’s not declared unconstitutional first by the Supreme Court).  Indeed, if Republicans take both houses, this new majority can explore using the same budget reconciliation process to repeal healthcare that the Democrats used to pass it in the first place.  That would ultimately go to the President for his signature, but it would be telling to see if he would be willing to shut the government down over that legislation.

And if the President does not see the light, then our job will be to regain the trust of the American people and create a climate in which a Republican will be elected president so we can repeal the bill and pursue common sense reform.  Those are solutions that can actually work.


[i] Examiner.com, “Heil Has Legal Eye on the Issues,” July 8, 2010.

[ii] U.S. Constitution, Art. I, Sec. 7, “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: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.”

[iii] Bowsher v. Synar, 478 U.S. 714, 756 (1986)(“A concurrent resolution, in contrast, makes no binding policy; it is ‘a means of expressing fact, principles, opinions, and purposes of the two Houses,’ Jefferson's Manual and Rules of the House of Representatives 176 (1983), and thus does not need to be presented to the President. It is settled, however, that if a resolution is intended to make policy that will bind the Nation and thus is "legislative in its character and effect," S. Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897) -- then the full Article I requirements must be observed” J. Stevens concurring); United States v. Romero-Fernandez, 983 F.2d 195, 196 (11th Cir. 1993)(“Congress cannot void the exercise of power by the Executive Branch through concurrent resolution, but could act only through bicameral passage, followed by presentment of the law to the President.”) citing  INS v. Chadha, 462 U.S. 919, 954-55 (1983); Consumer Energy Council v. Federal Energy Regulatory Com., 673 F.2d 425, 459 n. 140 (D. C. Cir. 1982)(Concurrent resolutions not presented to the president “have no substantive effect”).  Hinds Precedents of the House of Representatives IV Sec. 3483 (“The committee found that the passage of concurrent resolutions began immediately upon the organization of the Government, but their use has been, not for the purpose of enacting legislation, but to express the sense of Congress upon a given subject, to adjourn longer than three days, to make, amend, or suspend joint rules, and to accomplish similar purposes, in which both Houses have a common interest, but with which the President has no concern…We conclude this branch of the subject by deciding the general question submitted to us, to wit, ``whether concurrent resolutions are required to be submitted to the President of the United States,'' must depend, not upon their mere form, but upon the fact whether they contain matter which is properly to be regarded as legislative in its character and effect. If they do, they must be presented for his approval; otherwise, they need not be.”; A Guide to the Rules, Precedents and Procedures of the House at p. 168 (“Simple or concurrent  resolutions are used primarily to regulate the administrative or  internal business of the House, to express facts or opinions, or to dispose of some other nonlegislative matter.”); House Rules Manual -- House Document No. 110-162 at p. 200 (“A concurrent resolution is binding on neither House until agreed to by

both (IV, 3379), and, because not legislative in nature, is not sent to the President for approval (IV, 3483).”).

[iv] Chadha, at 959; Consumer Energy Council v. Federal Energy Regulatory Com., 673 F.2d 425, 477-78 (D.C. App. 1982)(Legislative veto in National Gas Policy Act was an unconstitutional violation of separation of powers doctrine by authorizing legislative branch to share power exercised by other two branches.); Beacon Products Corp. v. Reagan, 633 F. Supp. 1191, 1196 (D.C. Mass 1986)(“the provision for termination by concurrent resolution is unconstitutional because, unlike a joint resolution, termination by concurrent resolution would enable Congress to take legislative action without presenting the action to the President for his signature.”).

[v] 16 AmJur 2d Sec. 107, “[T]the final responsibility of passing upon the constitutionality of a statute rests upon the courts… a legislative declaration that essentially states a given enactment is constitutional is not binding on the courts.”

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4 Responses to “The Concurrent Resolution, and what it doesn’t do”

  1. Gotta know the game : Post Politics: Political News and Views in Tennessee Says:

    […] Hartline says CeCe Heil’s idea of how to overturn the health-care law won’t work: CeCe Heil, one of […]

  2. Jeff Sullivan Says:

    Jeff,

    This is a good point. I guess CeCe’s lawyering skills are limited to keeping her entertainment clients out of jail and the bankruptcy courts.

  3. Gene Wisdom Says:

    Jeff, I completely agree. While as conservatives we all are outraged at the excesses of our Supreme Court and the way it has not just strayed from but abandoned the Constitution in its reasoning, opinions, and decisions, it was clearly vested with the power to rule on the Constitutionality of statutes. Alexander Hamilton made that quite clear in Federalist number 78, arguing that the Congress cannot be greater than its creator, the Constitution.

  4. John Says:

    Jeff,
    As I was cleaning up my email I discovered 16 early posts I hadn’t read. This one was particularly interesting because I had extended email and phone conversations with her campaign staff regarding the concurrent resolution method.
    When it became obvious that the point was not clear to somebody in the chain from the phone bank to CeCe’s ear I asked for a citation showing that any law had been declared void ab initio by either a concurrent or a joint resolution. The Constitution clearly states that the former does not carry the weight of law while the latter does if signed by the president or if vetoed by 2/3 majority in both houses. Joint resolutions have the weight of law because they follow the process for enacting a law.
    The staff person said that the question had been presented in writing to CeCe and that the resulting citation would prove it. The citation was
    Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), an Article III issue that declared unconstitutional the extending of the Enumerated Powers of the Court to rule in first jurisdiction on writs of mandamus.
    Late, but I love this stuff

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