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Say that the Senate, House, and President decide to drink themselves to the point when you wake up next to someone and have no idea what they did last night to end up that way. And for some reason they decided to pass a law at the time.

Is that a validly passed law?

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  • 28
    CS Lewis claims somewhere that the ancient Persians debated every matter twice, once sober and once drunk, to make sure they said everything there was to say about it... Jan 11 at 12:17
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    @LukeSawczak For those interested (which includes myself), this claim appears to originate with Herodotus, in Histories 1:133. Neat!
    – user99478
    Jan 12 at 4:19
  • 2
    @user99478 Nice find. (And it seems pretty likely that Lewis, a classicist, would have found it at the source.) Jan 12 at 4:32
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    @LukeSawczak I also coudn't help myself from asking for more.
    – user99478
    Jan 12 at 4:36
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    Due to the 2nd political opinion piece answer, I protected this.
    – Trish
    Jan 12 at 12:29

3 Answers 3

34

This is covered under what is known as the Enrolled Bill Rule, as used in Field v. Clark, 143 U.S. 649 (1892). The very fact that a law was passed raises an essentially unrebuttable presumption that the correct procedures were followed during its passage.

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    Under what cases could such a presumption be rebutted? For example, if the Speaker of the House calls a voice vote, and a video recording of the procedings makes it obvious that many House members were voting opposition, but the Speaker refuses to call a recorded vote and instead has the record show that the vote has having passed 218-0, by what means could a member who opposed the legislation make clear that the bill was not passed by proper legislative procedure?
    – supercat
    Jan 11 at 23:57
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    At the federal level, the supplied link would seem to imply that the Speaker of the House and Vice President could sign bills and give them to the President without even bothering to present them to the House and Senate for a vote. The state laws seem a bit more reasonable.
    – supercat
    Jan 12 at 0:13
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    @Kevin: Ah, but what mechanism would exist for anyone to treat the televised recording of the proceedings as evidence superior to the signatures of the Speaker of the House and Vice President?
    – supercat
    Jan 12 at 5:30
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    @Kevin That is only because the chambers have agreed to let that happen. They can always change their mind. When Congress nearly came to blows over Jan 6, Congress cut the feed. And for much of the nation's history the Senate's proceedings were closed to virtually everyone, often including members of the House. Jan 12 at 7:29
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    @supercat: By the time you're talking about elected officials deliberately undermining democracy, we are long past the point where appealing to specific legal mechanisms is useful or relevant. The scenario you are describing is a coup, and it does not matter what the law has to say about it.
    – Kevin
    Jan 13 at 0:33
19

Is that a validly passed law?

Yes. Robert Columbia's solid answer provides a basis in case law and a federal statute for this conclusion. Even without this case law or statute, however, the U.S. Constitution would strongly point towards the same conclusion.

The U.S. Constitution provides a process for passing a bill. This is set forth mostly in Section 7 of Article I of the U.S. Constitution which states:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

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) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

When those formal requirements are met, the bill becomes a valid U.S. law.

Also, what constitutes a valid process in each legislative body is a political question which may not be second guessed by the Courts, as explained in Article I, Section 5 of the United States Constitution, which states, in the pertinent part:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Courts can't review questions of the Congressional process so long as the requirements of Section 7 of Article I have been met. There are 435 voting representatives in the House, 100 U.S. Senators plus a Vice President who can resolve tie votes in the U.S. Senate, and the President, along with the unelected clerks of the House and Senate to make sure that the legislative process is conducted responsibly.

Under Section 5 of Article I of the U.S. Constitution, quoted above, the U.S. House and the U.S. Senate, respectively, are the law judges of who can vote and what counts in their house of Congress.

Sections 3 and 4 of the 25th Amendment to the U.S. Constitution provides for the process of determining if the President is competent and must be invoked before a President takes action in an official capacity, not afterwards.

A judge can't override them, and there is not a single precedent in which a judge invalidated a law because the lawmakers who made it were competent to do so at the time.

Of course, this isn't a big deal, because the circumstances set forth in the question have never happened, and never will.

Culturally, all members of Congress and the Vice President and President getting blackout drunk and passing a law before they do is, while not technically impossible, probably significant less likely than a coup followed by the establishment of a monarch or de jure dictator.

In all of the history of democratic national governments, the former probably last happened in 11th century Iceland and maybe one to three times in the last 2500 years, while the later has probably happened scores of times in the last two or three centuries and another dozen or two times in classical Rome and Greece.

If an official is drunk, does that invalidate their actions?

Note that the headline question (before it was edited), presenting a situation that actually could come up in real life, is different from the body text question answered above in this answer, and also in another answer to this question.

If, for example, a judge entered an order from the bench just before passing out blackout drunk, this would very likely constitute a valid basis for either an appeal of the judge's ruling, or for a collateral attack on that ruling. (Although the judge would still probably be immune from civil liability for making an incorrect decision in this state.)

Similarly, a decision made by a single executive branch official in that state, for example, to order the arrest of a suspect or to seize or destroy someone's property, might be subject to question.

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  • What if some members of Congress claim that the claimed text of a law does not match any bill that they voted for? I don't think the legislative chambers' authority to make their own rules would allow them to claim that a bill containing certain text passed without a majority of present members voting in favor of that text, or without a quorum of members having been present since the last adjournment. By what mechanism could anyone challenge the legitimacy of such proceedings?
    – supercat
    Jan 13 at 18:14
  • @supercat "By what mechanism could anyone challenge the legitimacy of such proceedings?" None. Zero. Zip. Can't be done. Non-justiciable.
    – ohwilleke
    Jan 13 at 19:23
-3

The Current answers are good enough & use various Constitutional Clauses , Court rulings & Judicial Principles.

I want to chip in with common sense & general logic , though Politics & logic make strange bedfellows !

"A Bad Bill can only be superseded by a new Bill"

Specific to Senate , House & President :

When Members of Parliament are elected , there are certain criteria which are checked by the Election Authorities before the public voting.
Once elected , every MP is considered "capable" & "sane" & "not corrupt" until somebody proves otherwise , or at least shows circumstantial evidence to suggest otherwise.
Due Process will then be followed to remove the MP who is "incapable" or "insane" or "corrupt".

Now , there is no "check" on drug usage or drunkenness or anger or coercion when-ever the Parliament conducts the relevant business like "Instating the President" or "Discussions on Bills" or "Passing the Bills" Etc.
All such actions are "automatically" considered "sane" & "sober" & "free-will" & "not in a fit of rage"

When that "automatic assumption" is not taken , then each & every time Parliament will have to conduct drug tests (not high) , breathalyzers test (not drunk) , psychological tests (not insane & not in a fit of rage) , background checks (whether family is kidnapped to compel the coercive voting) , Police Checks (whether Member is corrupt) Etc
Practical Considerations make a good case for the "automatic assumption" in general.

[[ When such tests are indeed conducted , nothing will prevent a Member from claiming the Drugs enable "Personal Clarity in thinking" or Drunkenness allows "detachment from Personal Issues" to enable concentrating on the Issue at hand , hence that is "Advantageous" to Parliament ]]

If it turns out that the assumption was wrong (at some later stage) , then a new Discussion & a new Bill to "override" the old one will come in or at least will make the old Bill "void" , though that is done by the Parliament itself.

"If everyone in the Senate is drunk, does that invalidate their actions?"
Only if Senate Members themselves later think that it is invalid & then make a new Bill to "override" the invalid Bill or at least declare that Bill "void" , though new voting.
"A Bad Bill can only be superseded by a new Bill"
It is not automatic in general.

Otherwise , how would there be Consensus on whether the Majority Members consider it invalid ?
Voting will decide on whether it is invalid or not.

Beyond Members of Parliament :

When it is allowed to claim drunkenness to invalidate some actions , government at every level (State level , City level) can make that claim.
No Bill will ever be "Permanent"

Scenario : Intentionally , President/Mayor/Goveneror made a new Bill , thinking Public will like it. Now the masses are protesting on the streets & getting re-elected is unlikely. Solution : Hey , that Bill is invalid , you see , I was drunk !

More-over , the Citizens will also claim to have voted wrongly , while drunk. Citizens can also claim that drunkenness did not allow them to vote at all.
Can the Election Authorities change the Member of Parliament or conduct reelections ?
Where will it all end ?

Solution : Drunkenness is not a tenable justification to invalidate voting actions of Citizens & Parliament Members & Presidents !

"A Bad Bill can only be superseded by a new Bill"

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    "common sense & general logic" has very little place where The Law is concerned.
    – MikeB
    Jan 12 at 13:06
  • Would me believe me if I say I had a somewhat similar line in my Answer , @MikeB , though I decided to remove that at the last minute ?!?!
    – Prem
    Jan 12 at 15:22
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    Members of Parliament? "there are certain criteria which are checked by the Election Authorities before the public voting." Says who? There is virtually no vetting of candidates for federal office in the U.S. and the government is expressly forbidden from doing so. "every MP is considered "capable" & "sane" & "not corrupt" until somebody proves otherwise , or at least shows circumstantial evidence to suggest otherwise." You have no idea what you are talking about.
    – ohwilleke
    Jan 12 at 17:36
  • ((1)) 'You have no idea what you are talking about" : Guilty as charged ! I am talking in generalities , @ohwilleke , not limited to US. ((2)) I did not say "vetting" , I said "criteria" ((3)) "says who ?" , says US Constitution [[ loc.gov/classroom-materials/elections/… bensguide.gpo.gov/election-of-senators bensguide.gpo.gov/election-of-representatives ]] ((4)) Who checks the qualifications ? Election Authorities (common term , not limited to US) [[CON]]
    – Prem
    Jan 12 at 20:26
  • [[CON]] ((5)) "Members of Parliament" : I was using a common term , not limited to US ((6)) Once elected , Biden is considered "capable" , even if Trump makes dementia claims. When evidence of wrongdoing comes out , there will be impeachment proceedings likes Clinton & Nixon. Until then , President is presumed "capable" & "not corrupt" & Etc. [[ "The second impeachment trial, in 1804, removed a federal judge for reasons of drunkenness and insanity." senate.gov/about/powers-procedures/impeachment/… senate.gov/about/powers-procedures/expulsion.htm ]]
    – Prem
    Jan 12 at 20:27

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