Now let’s look at last week’s farm bill procedural snafu.

Last Wednesday we thought the farm bill veto would be straightforward:

  • Congress passes the farm bill conference report and sends it to the President. There are several steps in this process.
    • The bill is passed by both Houses. That’s the “engrossed bill.”
    • This engrossed bill is then “enrolled.” This means the House (or Senate) Clerk assembles the actual parchment copy, which is then signed by the Speaker of the House (Pelosi) and the President Pro Tempore of the Senate (Byrd).
  • The enrolled bill is then sent to the President by the House (or Senate) clerk. The technical term is the bill is “presented” to the President. (“Presented” is in Article I, Section 7 of the Constitution.)
  • The President then vetoes it by returning it to the Congress with his objections, and specifically, to the House that sent it to him (in this case, the House of Representatives).
  • Both Houses then vote on whether to override the veto. If more than 2/3 of both houses votes aye, the bill becomes law despite the President’s veto. If not, the bill dies.

Things got messy. Here’s what actually happened:

Congress passed the farm bill conference report. The engrossed bill was OK.

  • In the enrollment process, the House Clerk accidentally left out Title III, which covers agricultural trade and international food aid.
  • Speaker Pelosi and President Pro Tem (PPT) of the Senate Byrd signed the enrolled bill (missing Title III), and the Clerk presented (sent) it to the President.
  • The President vetoed the bill presented to him, by returning it to the House with a veto message stating his objections. Note that the bill the President vetoed is different than the bill the House and Senate actually voted for.
  • The House then took up the returned bill (still missing Title III) and voted to override the President’s veto. The bill was sent to the Senate, which did the same.
  • From the perspective of the Executive Branch, that bill (with no Title III) is now law, despite being different bill from what the Members of Congress voted for and thought they were sending to the President.
  • Now Congress has to pass a new bill that deals with Title III to correct their error.

How can this be the case? A Supreme Court decision in the late 19th century (Marshall Field & Co. v. Clark) established that the bill is whatever the Clerk presents to the President as the enrolled bill, even if it differs from the engrossed bill that the House and Senate passed. The Supreme Court declined to “look behind” the action of the Speaker of the House and the Senate PPT: as long as they have attested, through their signatures, to the bill enrolled by the House or Senate Clerk, then that bill is the formal definition of what the House and Senate passed, even if it differs from the language actually passed by the House and the Senate.

From the perspective of the Executive Branch, our hands are tied – there is no process to look behind the enrolled bill as presented to the President – the President has to deal with the bill he is sent. And once the veto was overridden, from the perspective of the Executive Branch all the constitutional formalities had been completed, and the bill became law, even though the President had objected to it, and despite the procedural foul-up.

The House majority leaders were aware of their blunder when they scheduled the veto override vote, and debated it on the House floor before that vote. It is odd that the Congress chose to take up and rush through a veto override of a bill that they knew was incorrect. One result is that we now have to implement a bill filled with bad policy. Another is that Congress must now pass a separate bill dealing with Title III.

This also serves as an opportunity to, at a minimum, fix important problems in the food aid title that Congress had planned to include in the first bill. The President has asked for two areas of flexibility in the food aid title that would allow the U.S. government to use the same number of dollars to help more starving people overseas.

  1. The President has asked for flexibility to spend up to 25 percent of certain food aid funds ($300 million per year) to buy food locally or “in country” from farmers (say, in Africa), rather than buying food in the U.S. and then shipping it to Africa. This is faster, because money can move instantaneously, while crops take weeks to move on ships. And it supports the development of an agricultural economy in the country in need. Historically low grain stocks and recent price increases make this reform more important than ever. U.S.-grown food will continue to play the primary food aid role, and will be the first choice in meeting global needs, but this flexibility would provide us with some ability to help more hungry people faster.
  2. We are concerned about Congress’ action to restrict the President’s ability to spend food aid money on emergency food needs. The version of the trade title that fell out of the vetoed bill required that increased funding levels be spent on “non-emergency” needs, like maternal and child health, and on sustainable agricultural practices. This means less money is available during times of crisis (like now) to buy food for emergencies. A cynic might claim that this is an attempt by some in the Congress to force the Administration to come back and request even more funding, rather than allowing us to use the existing pot of money more efficiently. This action would undermine the ability of the U.S. to save lives in emergency situations around the world.

We hope that the Congress will fix these two problems in the new Title III bill. Hungry people around the world deserve it.