Constitutionality of house of Congress passing separate bills and then combining them without vote on full bill

Question

On April 20, 2024, the US House of Representatives passed a foreign aid package for Ukraine, Israel, Indo-Pacific, and miscellaneous other matters, which it plans to send to the Senate as one bill. But it did this in an unusual manner -- it held 4 separate votes (each of which passed) on 4 separate bills (HR 8034, HR 8035, HR 8036, and HR 3038), and prior to voting on those, it passed a rule (HRes 1160) that considered "disposition" of those 4 bills as automatically passing an amendment to the Senate foreign aid bill (HR 815) with the text replaced by the text of the passed bills, and it will present the amended HR 815 (with the text of the passed bills) to the Senate as one bill. As far as I am aware, the House never took a vote on the full text of the amended HR 815.

(I believe that the reason that the House wanted to send it to the Senate as one bill is so that the Senate would be forced to pass all 4 parts (including such portions as the TikTok divestment bill) if it wanted to pass the aid.)

My question is whether there is a constitutional problem with this. The Presentment Clause of the US Constitution requires that each house of Congress "pass" the bill. But the full text of the amended HR 815 was never actually voted on by the House of Representatives. So can the House be considered to have "passed" this bill? Or is the fact that the House passed a rule that provided for the separate passed bills to be combined into one bill, combined with the fact that the House passed the separate parts, sufficient to be equivalent to the House passing the combined bill?

In the case of this package, each of the 4 bills passed with sufficiently large majorities such that, if it had been voted on as one combined bill, it would have probably still passed (though we will never know). But I can imagine a hypothetical case where parts of a bill are passed with thin majorities, with each part's support coming from portions of the house with little overlap, such that there would not be a majority to support the combined bill. In such a case, it seems that combining the bills in this way and pretending that the House passed the combined bill is kind of deceptive.

Also, at the time the House passed the rule to combine the bills, it did not know which of the 4 bills would pass. In the case where only some of the bills passed, I am not sure whether the rule meant to combine just the bills that did pass in this case. If it does, then it would be possible that the House would be considered to have passed a partially-combined bill that no one intended at the beginning when voting on the rule. In this case, would it still be reasonable to consider the House to have "passed" the partially-combined bill?

Answer 1

I don't have the minutia sorted out, but the White House does mention this:

A bill must pass both houses of Congress before it goes to the President for consideration. Though the Constitution requires that the two bills have the exact same wording, this rarely happens in practice. To bring the bills into alignment, a Conference Committee is convened, consisting of members from both chambers. The members of the committee produce a conference report, intended as the final version of the bill. Each chamber then votes again to approve the conference report.

So, H.Res.1160 having itself passed a vote (316-94 per your link--also detailed here) doesn't strike me as unusual procedure.

(Aside, CNN gives the breakdown of the votes in favor on that one as 165 Democrats, 151 Republicans. Although fewer Republicans than Democrats voted in favor, there were only 94 votes in opposition, so that doesn't even break the Republican internal rule that the 'majority of the majority' needs to vote in favor--aka Hastert rule.)

One interesting point is that while the press has discussed some of the votes for H.R. 8034, H.R. 8035, H.R. 8036 and H.R. 8038, these don't actually appear recorded on the 'actions' tab of these on congress.gov, while H.Res. 1160 does have it recorded there. So, perhaps these four separate H.R. 803x votes are not officially considered bill votes. OTOH that may be a fluke or lack of updates on the main Congress site. (Esp. during the weekend--we'll have more certainty on Monday.) The House clerk page does have these recorded as separate roll calls, e.g. here's the one for 8035 [Ukraine]. That one, interestingly, did fail the Hastert rule, with the GOP votes being only 101-112. (I suppose this gives TMG some ammo to depose Johnson, but most likely has no bearing on the constitutionality of the thus passed law.)

Anyway, H.Res. 1160 has this bit:

Upon transmission to the Senate of a message that the House has concurred in the Senate amendment to H.R. 815 with an amendment, the bills specified in subsection (d) that have passed the House shall be laid on the table.

That seems to say that the House is passing H.R. 815 in an amended form, so a/further reconciliation with the Senate might still be needed, unless the Senate agrees to pass the House version that the clerk is also authorized in there to engross.

I suppose your Q is whether the House can authorize its clerk (as it did in 1160) to engross a bill from 4 different H.R.'s. Prima facie I don't see anything in the relevant article of the constitution that says that it can't. (The House clerk doesn't even appear as such in the Constitution though, AFAICT, but their role in engrossing bills hasn't been deemed unconstitutional either, at least not by any authority that matters. FWTW, there was a 1892 SCOTUS case (Field v. Clark) that in part alleged that the clerks had been engaged in some kind of [broader] conspiracy. The plaintiffs were mainly claiming that Congress had unconstitutionally delegated some of their powers to the President. The clerks were only tangentially mentioned [by the plaintiffs] as being part of that alleged conspiracy. The SCOTUS decision unanimously dismissing that case did not say anything consequential about the clerks though.)

Presumably, the very existence of clerks, the authority delegated to them to engross bills etc. is deemed to fall under Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings [...]

In United States v. Ballin (interestingly also an 1892 case), SCOTUS deemed that power of Congress "absolute and beyond the challenge of any other body or tribunal".

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Footnote. Someone might wonder what's the diff between H.R. and H.Res.

Simple Resolutions

A matter concerning the operation of either the House of Representatives or Senate alone is initiated by a simple resolution. A resolution affecting the House of Representatives is designated “H.Res.” followed by its number. They are not presented to the President for action.

So, subsequent (Senate and Presidential) action on H.R. 815 will probably not appear under H.Res. 1160.