I appreciate the posts from Professor Rick Pildes and Professor Michael Herz on the nature of “Congress” under the Elections Clause, but I take a different approach. I don’t think “Congress” means different things in different parts of the Constitution. I think different parts of the Constitution constrain “Congress” in different ways.

In part, it’s a version of the argument that Professor Herz raises with the phrase “by law” in the Constitution, but it’s more than that. It’s that the Presentment Clauses in the Constitution (Article I, § 7, cl. 2 & 3) apply only to some actions of Congress, but not others. The Presentment Clauses apply to the Elections Clause (yes, it includes the phrase “by law”), but also apply to other clauses (e.g., as Professor Herz notes, Article III, § 2).

To get there, INS v. Chadha (1983) offers a thought: as the Presentment Clauses require, “every bill” before it becomes law, and “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment)” is subject to presentment. But, Chadha n. 21:

An exception from the Presentment Clauses was ratified in Hollingsworth v. Virginia, 3 Dall. 378 (1798). There the Court held presidential approval was unnecessary for a proposed constitutional amendment which had passed both Houses of Congress by the requisite two-thirds majority. See U.S. Const. Art. V.

One might also include another “exception” to the rule that Congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses. Each House has the power to act alone in determining specified internal matters. Art. I, § 7, cls. 2, 3 and § 5, cl. 2. However, this “exception” only empowers Congress to bind itself and is noteworthy only insofar as it further indicates the Framers’ intent that Congress not act in any legally binding manner outside a closely circumscribed legislative arena, except in specific and enumerated instances.

Although the bicameral check was not provided for in any of these provisions for independent Congressional action, precautionary alternative checks are evident. For example, Art. II, § 2 requires that two-thirds of the Senators present concur in the Senate’s consent to a treaty, rather than the simple majority required for passage of legislation. See The Federalist No. 64 (J. Jay); The Federalist No. 66 (A. Hamilton); The Federalist No. 75 (A. Hamilton). Similarly, the Framers adopted an alternative protection, in the stead of Presidential veto and bicameralism, by requiring the concurrence of two-thirds of the Senators present for a conviction of impeachment. Art. I, § 3. We also note that the Court’s holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment.

Hollingsworth, then, is not about how “Congress” is defined. It is, instead, an exception to how the Presentment Clauses apply. The government in Hollingsworth points out that the Bill of Rights never went through presentment in the first Congress. And maybe that precedent was enough. (Granted, this is tough given the breadth of Clause 3, which would appear to embrace constitutional amendments, and Madison’s concerns on August 15 & 16 of the Convention. But maybe we just have an early liquidated exception to consider here.)

I’ve never been a big fan of the way that cases like Smiley–at the peak of the Court’s “functionalist” approach to interpreting the separation of powers in the Constitution–tried to read “Congress” or “legislature” as meaning different things in different places. I think an intratextual reading is much more persuasive.

That doesn’t mean the North Carolina legislature wins in Moore. Instead, it just pushes the question in a different direction–how can we conceive of the limitations on a state legislature, as there are federal constitutional limitations on Congress?

One could conceive of limitations on the state legislature akin to those in the federal constitution. That explains something like how Hollingsworth and Hawke coexist. Another could conceive of limitations on the state legislature bound exclusively by state constitutional law (which, I think, would suggest Hawke was wrongly decided). Or one could conceive of the power of the “State” under the Elections Clause and the Presidential Electors Clause as doing some independent work, as Professor Franita Tolson has suggested, in ways that don’t cleanly fit Article V.

But in short, I think there are alternative ways of conceiving of these topics other than the suggestion that “Congress” and “legislature” mean different things in different places. It might instead be that the constraints on them look different in different places.