United States v. Munoz-Flores/Concurrence Scalia

Justice SCALIA, concurring in the judgment.

Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), held that federal courts will not inquire into whether the enrolled bill was the bill actually passed by Congress:

"The signing by the Speaker of the House of     Representatives, and by the President of the Senate, in open      session, of an enrolled bill, is an official attestation by      the two houses of such bill as one that has passed Congress.      It is a declaration by the two houses, through their      presiding officers, to the President, that a bill, thus      attested, has received, in due form, the sanction of the      legislative branch of the government, and that it is      delivered to him in obedience to the constitutional      requirement that all bills which pass Congress shall be      presented to him.  And when a bill, thus attested, receives      his approval, and is deposited in the public archives, its      authentication as a bill that has passed Congress should be      deemed complete and unimpeachable. . . .  The respect due to      coequal and independent departments requires the judicial      department to act upon that assurance, and to accept, as      having passed Congress, all bills authenticated in the manner      stated:  leaving the courts to determine, when the question      properly arises, whether the act, so authenticated, is in      conformity with the Constitution." Id., at 672, 12 S.Ct., at     497.

This salutary principle is also supported by the uncertainty and instability that would result if every person were " 'required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and the president of the senate, and approved by the governor, is a statute or not.' " Id., at 677, 12 S.Ct., at 499 (quoting Weeks v. Smith, 81 Me. 538, 547, 18 A. 325, 327 (1889)).

The same principle, if not the very same holding, leads me to conclude that federal courts should not undertake an independent investigation into the origination of the statute at issue here. The enrolled bill which, when signed by the President, became the Victims of Crime Act of 1984, 98 Stat. 2170, bore the indication "H.J. Res. 648." The designation "H.J. Res." (a standard abbreviation for "House Joint Resolution") attests that the legislation originated in the House. Such an attestation is not explicitly required by the Constitution, but is reasonably necessary to the operation of Art. I, § 7, cl. 2, which requires the President, if he desires to veto a bill, to "return it, with his Objections to that House in which it shall have originated." The President can hardly be expected to search the legislative journals (if they have even been printed by the time his veto must be cast) in order to determine where to direct his veto message. Indeed, it can be said that the attestation is reasonably necessary to the operation of Art. I, § 7, cl. 1 (the Revenue-Origination Clause), itself. The President, after all, is bound not to sign an improperly originated revenue bill by the same oath that binds us not to apply it, so he must have a ready means of knowing whence it came.

The enrolled bill's indication of its House of origin establishes that fact as officially and authoritatively as it establishes the fact that its recited text was adopted by both Houses. With respect to either fact a court's holding, based on its own investigation, that the representation made to the President is incorrect would, as Marshall Field said, manifest a lack of respect due a coordinate branch and produce uncertainty as to the state of the law. I cannot imagine this Court's entertaining a claim that purportedly vetoed legislation took effect because, although the President returned it to the House of origination indicated on the enrolled bill, that was not the real house of origination. It should similarly accept the congressional representation in the present case. We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, see Art. I, § 5, cl. 1; or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote. Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.

This disposition does not place forever beyond our reach the only issue in this area that seems to me appropriate for judicial rather than congressional resolution: what sort of bills constitute "Bills for raising Revenue," Art. I, § 7, cl. 1. Whenever Congress wishes to preserve the possibility of a judicial determination on this point, all it need do is originate the bill that contains the arguably revenue-raising measure in the Senate, indicating such origination on the enrolled bill, as by the caption "S.J. Res." This Court may thereby have the last word on what constitutes a bill for raising revenue, and Congress the last word on where a particular bill has originated-which seems to me as it should be.

For these reasons, I concur in the judgment of the Court.