As every school child knows, to become law, Art. I, § 7 of the U.S. Constitution requires a bill to go through the formal process of bicameral passage in Congress and presentment to the President. Should the President veto the legislation, then it may become law if it is “repassed by two thirds of the Senate and the House of Representatives.” The word repassed is important to the current controversy, because the farm bill as currently considered by the House and Senate never passed. Rather, a different bill—a version which included Title III—passed, however that is not the bill which was presented to the President. Accordingly, because the bill that passed is not the bill that was presented to the President and returned to Congress with his veto, their subsequent vote to override the veto cannot meet the requirements of repassage.
The fact that the bill contained much of the same material or the same bill number is not sufficient for repassage. It must be identical. This is particularly important in appropriations bills. As public choice literature demonstrates, appropriations bills are often consensus bills—legislation in which not only different parties, but different interest groups form deals in order to secure the passage of the larger legislation. Thus, a large appropriations bill like the farm bill might not even have passed at all if a significant section of the bill were not included. Those who cast their votes in Congress for the farm bill did so to pass a bill that included Title III, and that likely influenced their decision to vote for the bill at all. In other words, we have no way of knowing whether the incorrectly transmitted bill would have ever passed both houses of Congress as is (without Title III), because the votes that were tallied were not for such a bill.
Simply offering to pass a new bill for Title III is also insufficient. Such action still fails to take into account that the other sections of the bill never secured initial passage of both houses and presentment to the President. Thus, Title III might become law based upon a subsequent bill (provided that it goes through the proper process), but that does not cure the defects of the rest of the farm bill.
Given these constitutional failings, the President should direct his agencies, including USDA and the Treasury, to release no monies and take no action based upon the farm bill, and to wait for Congress to pass a farm law. While Congress will no doubt complain about the short time remaining to accomplish this task, they may be able to address the issue in the interim with a supplemental appropriation. If they can’t, then they should take a lesson from the rest of the country: Millions of Americans are looking forward to a long, holiday weekend. But most workers would not be able to take that time off if they botched an important task that had a deadline before their vacation. They would need to stay at work, and perhaps forego part of their vacation, to finish their task. Why should we expect less from Congress?
