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Of Synchronicity and Supreme Law Contents OF SYNCHRONICITY AND SUPREME LAW Saikrishna Bangalore Prakash CONTENTS INTRODUCTION .......................................................................................................................... 1221 I. PREVAILING PRACTICES .................................................................................................. 1230 A. Statutes ............................................................................................................................. 1231 B. Constitutional Amendments .......................................................................................... 1237 C. Treaties ............................................................................................................................. 1243 II. IMPLIED PERFECTION AND PROXIMITY PERIODS ................................................... 1251 A. Statutes ............................................................................................................................. 1256 B. Constitutional Amendments .......................................................................................... 1268 C. Treaties ............................................................................................................................. 1284 III. FINE-TUNING SYNCHRONICITY ................................................................................... 1286 A. Express Synchronicity .................................................................................................... 1286 B. Implied Synchronicity .................................................................................................... 1292 C. The Twenty-Eighth Amendment? .................................................................................. 1294 CONCLUSION ............................................................................................................................... 1298 1220 OF SYNCHRONICITY AND SUPREME LAW Saikrishna Bangalore Prakash∗ The Constitution identifies three forms of supreme law — the Constitution, laws, and treaties — and specifies procedures for their adoption. Yet it says little about timing. It does not seem to address whether the chambers of Congress must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether a President may make a treaty decades after the Senate consents to its ratification. This Article is the first to offer a comprehensive account of existing federal lawmaking practices as they relate to time. It also considers how those timing practices have evolved over our nation’s history. The Article argues that the Constitution requires some measure of synchronicity within each form of lawmaking. For statutes, all the steps requisite for a bill to become law must occur within a single congressional session, a rule immanent in the Constitution’s concept of a “session.” If all steps do not occur within one session, the slate is wiped clean. For constitutional amendments, the constraints are more complicated and less definite. Both chambers of Congress must pass a proposed amendment within one session. Moreover, once Congress sends an amendment to the states, it lapses if the requisite number of states does not ratify it within a reasonable period. If the proposal is to become an amendment, it must go back to square one and recommence its journey. Treaties are similarly constrained by a synchronicity requirement. In particular, Presidents must make treaties within a reasonable time after the Senate consents to their ratification. If widely accepted, these assertions would have far-reaching implications for how institutions currently make supreme law. The Article further contends that while the Constitution itself adopts a synchronicity constraint on the three forms of supreme law, the participants in each process also can impose their own more stringent limits on each. Finally, the Article uses this framework to comment on the Equal Rights Amendment and the vexing issues posed by attempts to revive that proposal. INTRODUCTION Once they leave Congress, proposed constitutional amendments are like diamonds; evidently, they are forever, meaning that states may ratify them centuries after Congress first recommended them. In contrast, bills seem to have a shelf life no longer than jelly or white rice; if both chambers do not pass a bill within a two-year Congress, the legislative process must begin anew in the next Congress. Though treaties occupy the same lexical plane as statutes,1 proposed treaties might be more like ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ James Monroe Distinguished Professor, Paul G. Mahoney Research Professor, Miller Center Senior Fellow, University of Virginia. Thanks to participants in workshops at University of Virginia, University of San Diego, University of Georgia, and Emory University. Thanks to Nathan Chapman, Laurie Claus, Anne Coughlin, John Duffy, John Harrison, Deborah Hellman, Kathryn Judge, Alison LaCroix, Jonathan Nash, Michael Rappaport, Adam Samaha, and Steve D. Smith for comments and criticisms. Special thanks to Joseph Barakat, Joseph Calder, Hannah Fraher, Russel Henderson, Woojae Kim, and Christian Talley for research assistance. Gratitude to UVA’s Refdesk. 1 See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by 1221 1222 HARVARD LAW REVIEW [Vol. 132:1220 diamonds than jelly or white rice, for it seems that a President might make them supreme law years or decades after the Senate consents. The Constitution’s text never directly addresses how long pending lawmaking proposals remain viable, ready to be perfected into law by the completion of the remaining steps. Article I, section 7 lays out “a single, finely wrought[,] and exhaustively considered[] procedure”2 for making federal statutes.3 Under the Presentment Clause, if a bill is to become law it must pass both chambers and then be presented to the President.4 The clause further provides that the President may sign the bill or return it with objections; if he does neither within ten days, the bill automatically becomes law.5 Should the President return the bill with objections, the two chambers, by a two-thirds vote in each, may overrule his veto and make the bill a law.6 To ensure that Congress does not evade presentment, the very next clause specifies that other texts — orders, resolutions, and votes — must also be sent to the President.7 Article II, section 2 sketches a far less “finely wrought” procedure for treaties. Under the Treaty Clause, Presidents can make treaties, “by and with the Advice and Consent of the Senate.”8 The modern Executive negotiates treaties with relatively little Senate input.9 After interna- tional negotiations conclude, the Executive submits a treaty to the Senate. If two-thirds of the senators present approve the treaty, the President may then complete the process of making the treaty in con- junction with the other nation(s).10 Article V creates two paths for proposing amendments and two tracks for ratifying them.11 Congress must send an amendment to the states if each chamber approves it by a two-thirds supermajority.12 Al- ternatively, if two-thirds of the state legislatures apply for a constitu- tional convention, Congress shall call a convention that may generate proposed amendments.13 However proposed amendments originate, ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other.”). 2 INS v. Chadha, 462 U.S. 919, 951 (1983). 3 See U.S. CONST. art. I, § 7, cl. 2. 4 Id. 5 Id. 6 Id. 7 Id. cl. 3. 8 Id. art. II, § 2, cl. 2. 9 It was not always so. See SAIKRISHNA BANGALORE PRAKASH, IMPERIAL FROM THE BEGINNING: THE CONSTITUTION OF THE ORIGINAL EXECUTIVE 136–37 (2015) (describing how President Washington propounded questions to the Senate before beginning treaty negotiations with other nations). 10 See id. at 136. 11 U.S. CONST. art. V. 12 Id. 13 Id. 2019] OF SYNCHRONICITY AND SUPREME LAW 1223 Congress chooses whether to send them to popular conventions or leg- islatures.14 If three-fourths of the relevant bodies (conventions or legis- latures) ratify the amendment, it becomes part of the Constitution.15 As detailed as these provisions appear to be, they say almost nothing about time. The Treaty Clause seems silent about the period in which treaties must be made supreme law.16 Article V appears mum about the time frames for proposing or ratifying amendments.17 The only express temporal constraint is found in the Presentment Clause’s ten-day limit on the President’s consideration of bills.18 That clause never directly addresses whether the chambers must pass bills contemporaneously, how long after bicameral passage Congress may present bills to the President, or when, after receiving objections, Congress may override them.19 Time seems not to have been on the minds of the Constitution’s Framers.20 The absence of express time constraints in Articles I, II, and V raises largely unexplored questions about the making of supreme law. For instance, can a treaty be made into supreme law decades after it was negotiated, as was the case with the Genocide Convention?21 Can states ratify an amendment more than two centuries after Congress proposed it, as occurred with the Twenty-Seventh Amendment? What, if any- thing, prevents the House
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