06-2770-cv(L), 06-2994-cv(CON), 06-3770-cv(CON)
OneSimpleLoan v. U.S. Secretary of Education




                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                             August Term, 2006

(Argued: June 26, 2007                                                  Decided: July 19, 2007)

                      Docket Nos. 06-2770-cv(L), 06-2994-cv(CON), 06-3770-cv(CON)

ONE SIMPLELOAN , CARINA D. BALL, NATHAN BAZYK,

                 Plaintiffs-Appellants,

                 v.

U.S. SECRETARY OF EDUCATION, SECRETARY’S REGIONAL REPRESENTATIVE FOR REGION II,

                 Defendants-Appellees.

Before: WINTER, CABRANES, and RAGGI, Circuit Judges.

        Plaintiffs appeal from a judgment of the United States District Court for the Southern District

of New York (Richard M. Berman, Judge) dismissing their claims that enactment of the Deficit

Reduction Act of 2005 violated the Bicameralism and Presentment Clause and the Appropriations

Clause of the United States Constitution. The statute is unconstitutional, plaintiffs allege, because the

House of Representatives passed a version of the bill that was not identical to the version passed by the

Senate. We conclude that the “enrolled bill rule” requires us to treat as unimpeachable the text of the

bill authenticated by the presiding officers of the House and Senate before being presented to the

President. We also conclude that a court may dismiss a claim on the basis of this rule before assessing

a plaintiff’s standing.

        Affirmed.




                                                    1
                                         JOHN J. WITMEYER III (Matthew C. Ferlazzo, Jon R. Grabowski,
                                                on the brief), Ford Marrin Esposito Witmeyer & Gleser
                                                LLP, New York, NY, for Plaintiffs-Appellants.

                                         ROBERT WILLIAM YALEN, Assistant United States Attorney
                                               (Michael J. Garcia, United States Attorney, Kathy S.
                                               Marks, Assistant United States Attorney, on the brief),
                                               United States Attorney’s Office for the Southern District
                                               of New York, New York, NY, for Defendants-Appellees.

                                         Allison M. Zieve, Adina H. Rosenbaum, Brian Wolfman, Public
                                                 Citizen Litigation Group, Washington, DC, for Amicus
                                                 Public Citizen in Support of Plaintiffs-Appellants.

                                         Steven A. Hitov, Jane Perkins, National Health Law Program,
                                                Washington, DC, for Amici Representatives Henry A.
                                                Waxman, Nancy Pelosi, John D. Dingell, Charles B. Rangel,
                                                Pete Stark, George Miller, James L. Oberstar, Louise McIntosh
                                                Slaughter, Sherrod Brown, Bennie G. Thompson in Support of
                                                Plaintiffs-Appellants.

JOSÉ A. CABRANES, Circuit Judge:

        The question presented is whether the “enrolled bill rule” articulated by the Supreme Court in

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), requires the dismissal of plaintiffs’ claims that the

Deficit Reduction Act of 2005 (“DRA”), Pub. L. No. 109-171, 120 Stat. 4 (2006), was enacted in

violation of the Bicameralism and Presentment Clause, U.S. Const. art. I, § 7, cl. 2, and the

Appropriations Clause, U.S. Const. art. I, § 9, cl. 7, of the United States Constitution. Agreeing with

the recent decision of the United States Court of Appeals for the District of Columbia in Public Citizen

v. United States District Court for the District of Columbia, 486 F.3d 1342 (D.C. Cir. 2007), we conclude that

the holding of Marshall Field is directly on point and that the Supreme Court has not overruled or

narrowed that holding. Moreover, absent Supreme Court direction, we may not reassess the need for

an enrolled bill rule or create exceptions to that rule on the basis of technological and political

developments since Marshall Field was decided. Thus, faced with allegations that a law is

unconstitutional because both houses of Congress did not pass identical bills, a court may not look



                                                       2
beyond the version of the bill authenticated by the signatures of the presiding officers of the House of

Representatives and Senate. We also conclude that a court may dismiss a claim on the basis of the

enrolled bill rule before assessing a plaintiff’s standing. The judgment of the United States District

Court for the Southern District of New York (Richard M. Berman, Judge), which dismissed plaintiffs’

constitutional claims, is therefore affirmed.

                                                BACKGROUND

        Plaintiff OneSimpleLoan is a company that markets and finances student loans. Plaintiffs

Carina D. Ball and Nathan Bazyk are individual borrowers who consolidated their student loans under

the Federal Family Education Loan (“FFEL”) Program. Plaintiffs allege that they have suffered injury

on account of provisions in the DRA that (1) prohibit a method of refinancing FFEL consolidated

loans and (2) impose conditions that inhibit companies from providing lower interest rates and better

benefits on FFEL consolidated loans. They brought an action against defendants, the United States

Secretary of Education and the Secretary’s Regional Representative for Region II (which includes New

York), seeking injunctive and declaratory relief. Plaintiffs alleged, inter alia, that the DRA was

unconstitutional because the bill passed by the House of Representatives was not identical to the bill

passed earlier by the Senate and presented later to the President. As evidence of this failure to pass

identical texts, plaintiffs pointed to a difference between (1) the “engrossed bill” transmitted from the

Senate to the House of Representatives after the Senate vote, and (2) the “enrolled bill” presented to

the President after having been signed by the Speaker of the House of Representatives and the

President Pro Tempore of the Senate.

A. The Bicameralism and Presentment Clause, the Appropriations Clause, Engrossed Bills, and
Enrolled Bills

        The Bicameralism and Presentment Clause mandates that “[e]very Bill which shall have passed

the House of Representatives and the Senate, shall, before it become a Law, be presented to the



                                                     3
President of the United States . . . .” U.S. Const. art. I, § 7, cl. 2. A law has been enacted in

conformance with this constitutional mandate only if “(1) a bill containing its exact text was approved

by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the

same text; and (3) that text was signed into law by the President.” Clinton v. City of New York, 524 U.S.

417, 448 (1998). Plaintiffs claim that the DRA never became a law because the House of

Representatives and the Senate did not pass “precisely the same text.” Plaintiffs further claim that,

because the DRA is not actually a law, it also violates the Appropriations Clause, which states that

“[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

U.S. Const. art. I, § 9, cl. 7.

        “Congress has established specific procedures governing passage of a bill.” Public Citizen, 486

F.3d at 1344. Those procedures are currently codified at 1 U.S.C. § 106, which provides in relevant

part:

                        Every bill . . . in each House of Congress shall, when such bill . . .
              passes either House, be printed, and such printed copy shall be called the
              engrossed bill . . . . Said engrossed bill . . . shall be signed by the Clerk of the
              House or the Secretary of the Senate, and shall be sent to the other House,
              and in that form shall be dealt with by that House and its officers, and, if
              passed, returned signed by said Clerk or Secretary. When such bill . . . shall
              have passed both Houses, it shall be printed and shall then be called the
              enrolled bill, . . . and shall be signed by the presiding officers of both Houses
              and sent to the President of the United States.

1 U.S.C. § 106 (emphasis added). See generally Charles Tiefer, Congressional Practice and Procedure 247-50

(1989) (discussing the processes of “engrossment” and “enrollment”). “An ‘engrossed bill’ is thus one

that has passed one chamber of Congress, while an ‘enrolled bill’ has passed both the House and the

Senate.” Public Citizen, 486 F.3d at 1344. In the instant case, plaintiffs allege that a discrepancy

between the version of the bill passed by the House and the version of the bill passed by the Senate

was introduced by a transcription error made during preparation of the engrossed bill and corrected

during preparation of the enrolled bill.


                                                         4
B. Enactment of the DRA

          The DRA, signed by the President on February 8, 2006, is an omnibus budget act whose broad-

ranging provisions affect not just educational lending, but also, inter alia, Medicare and Medicaid laws,

Hurricane Katrina relief, the transition to digital television broadcasting, and the filing fees for civil

actions in federal district courts. See id.

          The following facts regarding the DRA’s enactment are drawn from plaintiffs’ complaint.1

Most of the facts contained in the complaint are summarized by the District of Columbia Circuit in

Public Citizen:2

                  [I]n the Fall of 2005, the House and Senate passed different versions of a
                  budget bill referred to as S. 1932. To iron out the differences, the
                  legislation was sent to a conference committee. The committee produced a
                  conference report which failed to pass the Senate. Shortly thereafter the
                  Senate passed an amended version of S. 1932 wherein § 5101 specified a
                  13-month duration of Medicare payments for certain durable medical
                  equipment.3 However, when the Senate clerk transmitted the engrossed S.
                  1932 to the House, he mistakenly changed § 5101 of the bill to reflect a 36-
                  month duration of payments for durable medical equipment rather than
                  the 13-month duration actually approved by the Senate. The House voted
                  on this engrossed bill, including the erroneous duration figure.4 Because
                  the legislation originated in the Senate, the House returned it to the Senate

          1
             For the moment, we defer discussion of whether it is necessary to accept as true the facts presented in a
plaintiff’s pleadin gs when a defendan t mo ves for dismissal on the basis of the enrolled bill rule. See pages 10-11 post
(discussing the enrolled bill rule’s status as a non-m erits threshold ground for dismissal).

          2
           In Public Citizen, the District of Columbia Circuit dealt with the same constitutional challenge to the DRA that
we do in the instant c ase. Public Citizen, 486 F.3d at 1343 (“Public Citizen, a not-for-profit consumer advocacy
organization, filed suit in District Court claiming that the [DRA ] is invalid because the bill that was presented to the
President did not first pass both chambers of Congress in the exact same form.”). The plaintiff in Public Citizen has
submitted an amicus brief to our Co urt in support of plaintiffs here.

          Sev eral district cou rts in other Circ uits have rejec ted similar constitutional challenges to th e D RA . See Zeigler v.
Gonzales, No. 06-0080-CG -M, 2007 W L 1875945 (S.D . Ala. June 28, 2007); Conyers v. Bush, No. 06-11972, 2006 WL
3834224 (E.D. M ich. N ov. 6, 2006); State of Cal., Dep’t of Soc. Servs. v. Leavitt, 444 F. Su pp. 2d 10 88 (E .D. C al. 2006).

          3
          The Vice President of the United States, as President of the Senate, U.S. Const. art. I, § 3, cl. 4, cast a tie-
breaking vote in favor of the bill.

          4
              The bill passed by a vote of 216 to 214.

                                                                  5
             for enrollment. The Senate clerk, recognizing the transcription error in the
             engrossed bill, altered the text of the enrolled bill so that it included a 13-
             month rather than a 36-month duration. The version of the DRA signed
             by the presiding officers contains the 13-month figure. Thus, since the 13-
             month duration term in the enrolled bill passed the Senate but not the
             House, the President signed legislation that did not actually pass both
             houses of Congress in precisely the same form.

Id. at 1345. Additionally, plaintiffs in the instant case allege that (1) there existed a “legally improper

arrangement among certain representatives of the House, Senate and Executive Branch to have the

President sign” legislation that had not been enacted pursuant to the Constitution; (2) the Speaker of

the House of Representatives and the President Pro Tempore of the Senate were aware of the

discrepancy between the engrossed bill and the enrolled bill when they signed the enrolled bill; and (3)

after the President signed the DRA, the Senate passed a concurrent resolution hoping to rectify the

constitutional deficiency, but the House of Representatives never passed this resolution.

C. Proceedings in the District Court

        Plaintiffs commenced this action in April 2006. In May 2006, they moved for summary

judgment and, in the alternative, for a preliminary injunction that would prevent implementation of the

allegedly injurious student loan provisions of the DRA. Defendants cross-moved to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). In a decision and order

dated June 9, 2006, the District Court determined that plaintiffs’ constitutional claims were subject to

dismissal under the enrolled bill rule announced in Marshall Field. The District Court rejected plaintiffs’

arguments that (1) the enrolled bill rule was dicta and (2) in any event, the Supreme Court had

overruled the enrolled bill rule in United States v. Munoz-Flores, 495 U.S. 385 (1990). In addition to

dismissing the constitutional claims on the basis of the enrolled bill rule, the District Court in its June 9,

2006 decision and order made some ambiguous remarks regarding plaintiffs’ standing to pursue those

claims. However, at subsequent status conferences, the District Court expressed the belief that its June

9, 2006 decision and order had not resolved the question of standing with respect to plaintiffs’


                                                      6
constitutional claims.

         Although certain non-constitutional claims remained pending before the District Court,

plaintiffs filed a notice of appeal on June 12, 2006. When those non-constitutional claims were mooted

by new legislation, plaintiffs filed a second notice of appeal on June 26, 2006, on the theory that the

June 9, 2006 decision and order had become final. In an order entered on August 9, 2006, the District

Court determined that plaintiffs had never appealed from a final order and that it therefore retained

jurisdiction to decide the issue of standing with respect to the constitutional claims. It then concluded

that plaintiffs lacked standing, in part because they had not alleged an injury that would likely be

redressed by a judgment in their favor. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The

Court reasoned that the remedy for a constitutional violation would be to sever the Medicare provision

not passed by the House of Representatives from the remainder of the DRA, leaving in force the

student loan provisions allegedly causing harm to plaintiffs. The Court also reiterated that the enrolled

bill rule required dismissal of plaintiffs’ constitutional claims. At the end of the August 9, 2006 order,

the District Court directed the Clerk to close the case. Plaintiffs filed a third notice of appeal on

August 10, 2006.5

                                                       DISCUSSION

A. Marshall Field

         In Marshall Field, several importers protesting the assessment of duties under the Tariff Act of

October 1, 1890 claimed that “the act was not a law of the United States.” 143 U.S. at 665-66. The

Supreme Court described the importers’ principal contention as follows:

               The contention of the appellants is that [the] enrolled act, in the custody of
               the Secretary of State, and appearing, upon its face to have become a law in


         5
            Because plaintiffs’ multiple notices of appeal ensure timeliness, and because we can nostra sponte address any
argu ment on stan ding not presented to or d ecid ed by the D istrict C ourt, we n eed not consid er whether it was possible
for plaintiffs to appeal at any tim e before August 9, 2006, or whether the District C ourt properly conclu ded tha t it
retained jurisdiction to decide the standing issue.

                                                              7
               the mode prescribed by the Constitution, is to be deemed an absolute
               nullity, in all its parts, because—such is the allegation—it is shown by the
               Congressional record of proceedings, reports of committees of each house,
               reports of committees of conference, and other papers printed by authority
               of Congress, and having reference to [the bill in question], that a section of
               the bill, as it finally passed, was not in the bill authenticated by the
               signatures of the presiding officers of the respective houses of Congress,
               and approved by the President.

Id. at 668-69. In other words, the importers were arguing that neither house of Congress had passed a

version of the bill identical to the enrolled bill. The importers “rest[ed] their contention” on the

Journal Clause of the Constitution, U.S. Const. art. I, § 5, cl. 3,6 which they claimed made congressional

journals “the best, if not conclusive evidence upon the issue as to whether a bill was, in fact, passed by

the two houses of Congress.” Marshall Field, 143 U.S. at 670.

         The Supreme Court rejected this interpretation of the Journal Clause and stated that nothing in

the Constitution “prescribe[s] the mode in which the fact of the original passage of a bill by the House

of Representatives and the Senate shall be authenticated, or preclude[s] Congress from adopting any

mode to that end which its wisdom suggests.” Id. at 671. Noting that the Constitution does not

“expressly require bills that have passed Congress to be attested by the signatures of the presiding

officers of the two houses,” the Court observed that “usage, the orderly conduct of legislative

proceedings and the rules under which the two bodies have acted since the organization of the

government, require that mode of authentication.” Id. The Court then concluded that “when a bill,

thus attested, receives [the President’s] approval, and is deposited in the public archives, its

authentication as a bill that has passed Congress should be deemed complete and unimpeachable.” Id.

at 672. Recognizing that separation-of-powers concerns were at issue, the Court elaborated that “[t]he

respect due to coequal and independent departments requires the judicial department to act upon that


         6
            The Journal Clause states that “[e]ach House shall keep a Journal of its Proceedings, and from time to time
publish the same, excepting such P arts as may in their Judgment require Sec recy; and the Y eas and N ays of the M emb ers
of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” U.S.
Const. art. I, § 5, cl. 3.

                                                              8
assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated.” Id.

        The Supreme Court in Marshall Field admitted that the rule thereby established would allow the

continued enforcement of legislation that had not been enacted in the manner prescribed by the

Constitution. See id. at 675. However, it reasoned that

             [b]etter, far better, that a provision should occasionally find its way into the
             statute through mistake, or even fraud, than that every act, state and
             national, should at any and all times be liable to be put in issue and
             impeached by the journals, loose papers of the legislature, and parole
             evidence. Such a state of uncertainty in the statute laws of the land would
             lead to mischiefs absolutely intolerable.

Id. (quoting Sherman v. Story, 30 Cal. 253, 275 (1866)).

        In concluding its discussion of Congress’s alleged failure to pass the precise text of the act in

question, the Court set forth “a clear rule” requiring the judicial branch to treat an enrolled bill signed

by the presiding officers of the House and Senate as conclusive evidence of the text passed by both

houses of Congress. Public Citizen, 486 F.3d at 1350. Under Marshall Field, “it is not competent” for a

plaintiff alleging that a statute is void because Congress did not pass the exact text appearing in an

authenticated enrolled bill “to show, from the journals of either house, from the reports of committees,

or from other documents printed by authority of Congress,” that the bills actually passed by the two

houses of Congress differed from the enrolled bill. Marshall Field, 143 U.S. at 680.

        The rule articulated by the Supreme Court in Marshall Field became known as the “enrolled bill

rule” and has been described by our Court as “a longstanding rule, invoked by many courts, including

the Supreme Court and our own Court.” United States v. Pabon-Cruz, 391 F.3d 86, 99 (2d Cir. 2004)

(holding that the enrolled bill rule does not prevent courts from considering legislative history when

determining how to interpret and apply statutory language). As we have observed, the enrolled bill rule

“provides that [i]f a legislative document is authenticated in regular form by the appropriate officials,

the court[s] treat[ ] that document as properly adopted.” Id. (alterations in original) (quoting United



                                                      9
States v. Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (quoting United States v. Thomas, 788 F.2d 1250, 1253 (7th

Cir. 1986) (citing Marshall Field, 143 U.S. at 672-73))) (internal quotation marks omitted).

        The plain language of Marshall Field appears to foreclose plaintiffs’ constitutional claims in the

instant case, which would require our Court to look beyond the authenticated enrolled bill for evidence

that the House and Senate did not pass identical texts. Yet plaintiffs present a variety of arguments

urging us to decide that Marshall Field does not mean what it says. They also assert that they have

standing under the Constitution to pursue their claims. We conclude that plaintiffs’ arguments

regarding the inapplicability of the enrolled bill rule are without merit, and we note that it is for the

Supreme Court rather than a court of inferior jurisdiction to determine whether the venerable enrolled

bill rule requires revision in light of technological and political developments since Marshall Field was

decided in 1892. We also conclude that a court may dismiss claims pursuant to the enrolled bill rule

before addressing whether a plaintiff has standing.

B. The Enrolled Bill Rule Is a “Non-Merits Threshold Ground for Dismissal”

        We first consider whether it is necessary for a court to determine if a plaintiff satisfies the

“irreducible constitutional minimum of standing” before deciding whether the enrolled bill rule applies.

Lujan, 504 U.S. at 560. We agree with the District of Columbia Circuit that “[a]t a minimum, the

Marshall Field rule is . . . a non-merits threshold ground for dismissal” that cuts off judicial inquiry into a

plaintiff’s constitutional claims based on the alleged failure of Congress (whether one house or both) to

pass the precise text of a statute. Public Citizen, 486 F.3d at 1349; see Marshall Field, 143 U.S. at 675

(recognizing that application of the enrolled bill rule will allow unconstitutional laws to survive). Like

other rules that are “designed not merely to defeat the asserted claims, but to preclude judicial inquiry,”

Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005), or that “deny[ ] audience to a case on the merits,” Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 585 (1999), the enrolled bill rule may support dismissal of a claim before

a court assesses its authority to hear that claim. See Public Citizen, 486 F.3d at 1345-49; cf. Sinochem Int’l


                                                      10
Co. v. Malaysia, – U.S. –, 127 S. Ct. 1184, 1188 (2007) (permitting dismissal on the ground of forum non

conveniens before consideration of jurisdictional issues); Tenet, 544 U.S. at 6 n.4 (allowing dismissal of a

suit involving covert espionage agreements on public policy grounds before consideration of

jurisdictional issues); Ellis v. Dyson, 421 U.S. 426, 433-34 (1975) (permitting abstention under Younger v.

Harris, 401 U.S. 37 (1971), before consideration of whether there is an Article III case or controversy).

        As the District of Columbia Circuit pointed out in Public Citizen, because the enrolled bill rule is

a “non-merits threshold ground for dismissal,” Public Citizen, 486 F.3d at 1349, it “does not authorize a

merits dismissal for failure to state a claim” under Fed. R. Civ. P. 12(b)(6), id. at 1348. Consequently, a

district court need not accept as true the facts alleged in a plaintiff’s pleadings when a defendant moves

to dismiss pursuant to the enrolled bill rule. Cf. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191

(2d Cir. 2007) (“In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6) . . ., we accept as true

all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-

moving party.”). Rather, the district court must determine (1) whether the presiding officers of the

House and Senate in fact signed the enrolled bill, thereby attesting to its passage, and (2) whether the

enrolled bill rule requires dismissal of a particular claim as a matter of law. A court of appeals would

then review the district court’s factual findings under a clearly erroneous standard and its legal

conclusions de novo. Cf. Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir. 2004) (“In reviewing a district

court’s determination of whether it has subject matter jurisdiction, we review factual findings for clear

error and legal conclusions de novo.”).

        In the instant case, there is no dispute as to whether the Speaker of the House of

Representatives and the President Pro Tempore of the Senate signed the enrolled bill that would

subsequently become the DRA. Thus, we need only review the District Court’s legal conclusions

regarding application of the enrolled bill rule to the particular claims at issue.




                                                      11
C. The Enrolled Bill Rule Was Not Dicta

         Plaintiffs and amicus Public Citizen argue that the Supreme Court’s holding in Marshall Field

extended only to congressional journals and that the prohibition against considering all “other

documents printed by authority of Congress,” Marshall Field, 143 U.S. at 680, was merely expansive

dicta. This argument was presented to the District of Columbia Circuit in Public Citizen and

convincingly rejected by that court. We agree that “Marshall Field’s plain language and justification

cannot be read to create a rule of dismissal limited to the claims of plaintiffs who rely primarily upon

journals to rebut an attested enrolled bill.” Public Citizen, 486 F.3d at 1351. The Supreme Court

articulated an expansive rule in Marshall Field because such a rule was necessary to answer the expansive

question before the Court, see Marshall Field, 143 U.S. at 668-69, 680, notwithstanding that the

appellants’ strongest argument lay in their interpretation of the Journal Clause. Moreover, neither the

Supreme Court’s concern for stability nor its attentiveness to the constitutional doctrine of separation

of powers “applies solely to impeachment by journals.” Public Citizen, 486 F.3d at 1351. Permitting

litigants to impeach the text of an enrolled bill by other congressional documents would likewise create

“uncertainty in the statute laws,” Marshall Field, 143 U.S. at 675 (quoting Sherman, 30 Cal. at 275), and

require courts to conduct inquiries that impinge upon the “respect due to coequal and independent

departments,” id. at 672. Finally, the Supreme Court’s own subsequent interpretation of Marshall Field’s

holding requires us to reject plaintiffs’ argument that Marshall Field did nothing but prevent litigants

from challenging the text of an enrolled bill through congressional journals. See United States v. Munoz-

Flores, 495 U.S. 385, 391 n.4 (1990) (“The Court rejected [appellants’] interpretation of the Journal

Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed.”

(emphasis added)).

          Plaintiffs also argue that the scope of the holding of Marshall Field was cast into doubt by the

Supreme Court’s inspection of congressional journals in United States v. Ballin, 144 U.S. 1 (1892), a case


                                                            12
decided on the same day as Marshall Field. This argument, which would render Marshall Field

meaningless with respect to the one source of evidence plaintiffs concede was at issue, is without merit.

In Ballin, the Court considered whether another tariff act had been “legally passed.” Id. at 3. The

Court addressed whether a quorum of the House of Representatives had been present “to do

Business,” U.S. Const. art I, § 5, cl. 1, and whether the bill before the House received a sufficient

number of votes. See Ballin, 144 U.S. at 3-9. The Court first observed that, as a general matter,

“whenever a question arises in a court of law of the existence of a statute . . ., the judges who are called

upon to decide it have a right to resort to any source of information which in its nature is capable of

conveying to the judicial mind a clear and satisfactory answer to such question.” Id. at 3 (quoting

Gardner v. Collector, 73 U.S. (6 Wall.) 499, 511 (Dec. Term 1867)). The Court then noted its decision in

Marshall Field and stated “[i]t is unnecessary to add anything here to that general discussion.” Id. at 4.

Ballin in no way purported to disturb Marshall Field’s holding as expressed by the plain language of that

case itself and reaffirmed by the Supreme Court in Munoz-Flores.

        Indeed, the Supreme Court’s analysis in Ballin appears to reinforce its reasoning in Marshall

Field. In Ballin, the Court inspected the House’s journal only after “[a]ssuming that by reason of [the

Journal Clause] reference may be had to the journal, to see whether the yeas and nays were ordered,

and if so, what was the vote disclosed thereby.” Id. In contrast, the Marshall Field Court made plain

that the Constitution grants Congress full discretion in deciding how to authenticate the particular text

of a bill passed by both houses. See Marshall Field, 143 U.S. at 671. Moreover, in Ballin, the Court

noted that the House of Representatives had itself implemented a rule requiring that certain

information regarding voting be recorded in the journal. See Ballin, 144 U.S. at 5. The Court respected

the House’s discretion “to determine its rules of proceedings,” id. at 5, accepting as true the

information contained in the journal even though it might be erroneous, see id. at 4. In the same way,

the Court in Marshall Field respected Congress’s discretion to prescribe the authentication of an


                                                     13
enrolled bill’s text, even though that text might not have actually passed both houses. See Marshall Field,

143 U.S. at 672, 675.

D. The Enrolled Bill Rule Has Not Been Overruled or Modified by the Supreme Court

        Plaintiffs’ principal contention on appeal is that, whatever Marshall Field meant in 1892, the

Supreme Court has subsequently restricted its application “to cases where a constitutional requirement

binding Congress is absent,” Appellants’ Reply Br. 1, or has at least “squarely confine[d] Field to a

Journal Clause controversy,” id. at 3. Plaintiffs’ sole support for this argument is what Judge Edwards

of the District of Columbia Circuit styled an “oblique footnote” in Munoz-Flores. Public Citizen, 486

F.3d at 1352. Like the District of Columbia Circuit, we too “are satisfied that the Court’s decision in

Munoz-Flores does not purport to overrule or modify the enrolled bill rule.” Id. at 1355.

        In Munoz-Flores, a criminal defendant challenged the constitutionality of a provision of the

Victims of Crime Act, 18 U.S.C. § 3013. He argued that the provision, “which requires courts to

impose a mandatory special assessment on any person convicted of a felony misdemeanor,” Munoz-

Florez, 495 U.S. at 387 (internal quotation marks omitted), was passed in violation of the Constitution’s

Origination Clause, which states that “[a]ll Bills for raising Revenue shall originate in the House of

Representatives,” U.S. Const. art. I, § 7, cl. 1. See Munoz-Flores, 495 U.S. at 387. The Supreme Court

eventually determined that the provision did not violate the Origination Clause because it was not a bill

for raising revenue. See id. at 401. However, before doing so, the Court discussed whether the case was

justiciable under the “political question doctrine,” ultimately concluding that it was. See id. at 389-96.

        Justice Scalia, in an opinion concurring in the judgment, stated that Marshall Field prohibits

judicial inquiry into the origination of a statute where an authenticated enrolled bill contains the

designation “H.J. Res.,” an abbreviation for “House Joint Resolution.” See id. at 408-10 (Scalia, J.,

concurring in the judgment). The majority addressed Justice Scalia’s position in a footnote containing

the majority opinion’s lone mention of Marshall Field. The footnote read:


                                                     14
             [Justice Scalia] contends that Congress’ resolution of the constitutional
             question in passing the bill bars this Court from independently considering
             that question. The only case he cites for his argument is Marshall Field &
             Co. v. Clark. But Field does not support his argument. That case concerned
             “the nature of the evidence” the Court would consider in determining
             whether a bill had actually passed Congress. Appellants had argued that
             the constitutional Clause providing that “[e]ach House shall keep a Journal
             of its Proceedings” implied that whether a bill had passed must be
             determined by an examination of the journals. The Court rejected that
             interpretation of the Journal Clause, holding that the Constitution left it to
             Congress to determine how a bill is to be authenticated as having passed.
             In the absence of any constitutional requirement binding Congress, we
             stated that “[t]he respect due to coequal and independent departments”
             demands that the courts accept as passed all bills authenticated in the
             manner provided by Congress. Where, as here, a constitutional provision is
             implicated, Field does not apply.

Munoz-Flores, 495 U.S. at 391 n.4 (citations omitted).

        Plaintiffs interpret this footnote as rendering the enrolled bill rule inapplicable to their

constitutional claims under the Bicameralism and Presentment Clause and the Appropriations Clause.

We disagree. Although “the language of the Munoz-Flores footnote is cumbersome, making it difficult

to discern precisely what the Court meant to say,” Public Citizen, 486 F.3d at 1354, we think it clear that

the Court did not intend to change the fundamental parameters of the enrolled bill rule established in

Marshall Field—namely, that courts must “accept, as having passed Congress, all bills authenticated” by

the signatures of the presiding officers of the House and Senate, Marshall Field, 143 U.S. at 672. The

Munoz-Flores “oblique footnote” repeatedly refers to the basic constitutional deficiency alleged in

Marshall Field, which was that the statute in question had not passed both houses of Congress in a form

identical to the enrolled bill. That same alleged deficiency underlies plaintiffs’ claims in the instant case.

Moreover, as mentioned above, see page 12 ante, the footnote describes Marshall Field’s holding in broad

terms, providing no indication that it applies only to particular types of evidence. Whatever plausible

alternative interpretations may be supported by the language of the “oblique footnote,” plaintiffs’




                                                     15
reading is not one of them.7 See Public Citizen, 486 F.3d at 1354-55 (discussing what the Munoz-Flores

Court might have meant when it stated that a constitutional provision was not implicated in Marshall

Field).

E. We May Not Create Exceptions to the Enrolled Bill Rule Based on Technological and Political
Developments Since Marshall Field Was Decided

          Plaintiffs and amici offer two additional reasons why the enrolled bill rule should not apply in

the instant case: (1) the engrossed bill, whose production is required by statute, is more reliable than the

congressional documents presented as evidence of a constitutional violation in Marshall Field; and (2)

plaintiffs allege a conspiracy to subvert the Constitution by the presiding officers of Congress and the

President. Neither of these arguments is availing.

          First, although technological advances in printing and copying since the late nineteenth century

may have removed some of the sources of unreliability in congressional documents, the facts alleged by

plaintiffs in this case reveal that even engrossed bills printed today are subject to error or mishandling.

Indeed, such advances may provide new ways to alter a bill’s text during the legislative process.

Additionally, while the Supreme Court in Marshall Field contemplated that Congress could change its

internal bill authentication procedure if it wanted to, see Marshall Field, 143 U.S. at 675 (quoting Sherman,

30 Cal. at 275, for the proposition that departure from the enrolled bill rule is required in certain States

because there exists “some express constitutional or statutory provision requiring some relaxation of

the rule”), Congress has not done so. Nothing in 1 U.S.C. § 106, expressly or otherwise, limits the



          7
             In other words, the Munoz-Flores footnote refuses to extend, but does not retract, the enrolled bill rule. That
said, we do agree with plaintiffs that the Supreme Court has been less than clear in explaining why courts may probe
congressional doc um ents when adjudica ting some types of constitutional claims but not others. In the context of a claim
that se eks to impeach the authenticated tex t of an enrolled bill, the C ourt ma y reg ard as un ique the “usa ge, the orderly
conduct of legislative proceedings, and the rules under which the [houses of Congress] have acted since the organization
of the government, requir[ing] that mode of authentication.” Ma rshall F ield, 143 U.S. at 671. Or the Court may consider
the textual inconsistencies invoked in a bicameralism challenge to be a greater source of “uncertainty in the statute laws
of the land,” id. at 675 (quoting Sherman, 30 Ca l. at 275), than o ther ground s for con stitutional challenges. In any ev ent,
our task is to apply clearly established Sup reme Court precedent, not to speculate on the reasons the Su prem e Cou rt
migh t have had fo r creating this precedent.

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longstanding authority of the presiding officers of the House and Senate to attest to the passage of an

enrolled bill’s text. See page 4 ante (quoting 1 U.S.C. § 106).

        Second, we do not agree with plaintiffs’ argument (supported by several members of the House

of Representatives acting as amici) that Marshall Field creates an exception to the enrolled bill rule in

certain cases involving allegations that the presiding officers of Congress and the President of the

United States conspired to violate the Constitution by enacting legislation that had not passed both the

House and Senate. As it happens, the Supreme Court in Marshall Field responded to the contention

that under the enrolled bill rule “it becomes possible for the Speaker of the House of Representatives

and the President of the Senate to impose upon the people as a law a bill that was never passed by

Congress”:

             But this possibility is too remote to be seriously considered in the present
             inquiry. It suggests a deliberate conspiracy to which the presiding officers,
             the committees on enrolled bills, and the clerks of the two houses must
             necessarily be parties, all acting with a common purpose to defeat an
             expression of the popular will in the mode prescribed by the Constitution.

Marshall Field, 143 U.S. at 672-73. Plaintiffs and amici seize upon the Court’s statement that the

possibility of a conspiracy was “too remote to be considered in the present inquiry,” arguing that where

the likelihood of a conspiracy is greater, the enrolled bill rule does not apply. Yet the Court’s next

sentence warned that “[j]udicial action based upon . . . a suggestion [of conspiracy] is forbidden by the

respect due to a co-ordinate branch of the government.” Id. at 673. In light of the separation-of-

powers concerns at the forefront of Marshall Field, which are surely undiminished by the passage of

time, we do not think it plausible that the judicial branch must, before deciding if the enrolled bill rule

applies, conduct threshold inquiries into how likely it was for a particular set of legislative and executive

actors to conspire in alleged constitutional violations. Whether the enrolled bill rule has come to serve

as an incentive for politicians to avoid the rigors of constitutional law-making is a different question.

The answer might provide a policy argument against strict application of the enrolled bill rule, but we


                                                     17
are bound to follow Supreme Court precedent as it currently exists.

        In the last analysis, even if plaintiffs’ arguments support the creation of exceptions to the

enrolled bill rule in some circumstances (or militate toward abandoning the rule altogether), we are not

at liberty to depart from binding Supreme Court precedent “unless and until [the] Court reinterpret[s]”

that precedent. Agostini v. Felton, 521 U.S. 203, 238 (1997); accord United States v. Quinones, 313 F.3d 49,

62 n.10 (2d Cir. 2002). Plaintiffs’ constitutional claims are therefore foreclosed by Marshall Field, and

dismissal by the District Court was appropriate.

                                       *              *              *

        For the foregoing reasons, the judgment of the District Court is AFFIRMED.




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