Legislative Make-Believe

Andrew Hyman walks through why the “Slaughter Solution” – i.e., pretend to have passed the Senate healthcare bill through the House without actually voting on the language of the same bill that passes the Senate, in flagrant violation of the Presentment Clause of Article I of the Constitution – is not at all like other “deem and pass” procedures used in the past. Of course, it’s debatable whether some of the prior maneuvers are entirely kosher under Article I either, but one thing about the “Gephardt rule” discussed by Hyman (the name of which should identify which party cooked it up in the first place) is that at least it doesn’t involve the House changing its own rules mid-stream after different bills have passed the House and Senate; when the vote is taken under that rule, everyone already knows what the procedure will be and must calculate and justify their political position accordingly. (Worse yet, the reconciliation procedure the Democrats are proposing presupposes that if parts of the deemed-passed bill are stripped out by the Senate, there will be no opportunity for the House to see the bill again, meaning that House members are being asked to buy a pig in a poke).
Besides it being terrible politics to use such obvious gimmickry, “deem and pass” seems politically pointless – nobody’s going to buy that their Congressman who voted for the rule didn’t effectively vote for the bill – and legally dangerous, since the Supreme Court has twice in the past quarter century (INS v. Chadha and Clinton v. City of New York) affirmed that it will strike down violations of the Presentment Clause, when the resulting enactment is challenged by citizens, states or municipalities adversely affected by its terms. The Court doesn’t like to get involved in the internal affairs of Congress, but if there’s one thing in Article I that’s so basic that any viewer of Schoolhouse Rock will remember it and the Court will enforce it, it’s that the same bill has to pass both houses before it becomes a law. I cannot possibly imagine a worse outcome for the Democrats than moving heaven and earth to pass Obamacare, and incur the political price for doing so, only to have it struck down by the Supreme Court – perhaps after they have lost their commanding majorities in Congress – on the grounds that they essentially cheated by changing the rules in the middle of the game to pass something that wouldn’t pass under the traditional rules.

14 thoughts on “Legislative Make-Believe”

  1. I haven’t followed this issue very closely, and I know very little about the nuts and bolts of Congressional procedure. What they are doing, to me, sounds – at the very least – weird, which is not a good thing in my book. But I’ve got to think the Dems had someone look at the constitutionality of this. I mean, what’s their Constitutional argument?
    I did a random web search, and came up with this. I have no idea who this is or how accurate this assessment is, but maybe this is what is going on in their heads. And if this person is actually right about the alternative, the Dems are crazy to do it the way they are planning:
    “Further Thoughts On The Constitutionality Of “Deem And Pass”
    by Doug Mataconis @ 1:03 pm on March 17, 2010.
    KipEsquire posts a rebuttal of sorts to my post yesterday about the probable constitutionality of the so-called Slaughter Solution:
    I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.
    This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.
    I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:
    Each House may determine the Rules of its Proceedings,
    In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:
    The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
    If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:
    [T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.
    How that would not be in compliance with the Presentment Clause is beyond me.
    Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.
    Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.”

  2. I’m not sure what that guy is talking about, as it’s clearly defined in Article 1 Section 7 that “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.”
    So, I contend that the Constitution does state exactly how the vote must be taken.

  3. The Yale law professor that my last post quoted is here:
    I’ve got to think that is the best argument the dems have as to constitutionality. It seems unnecessarily risky regardless of the outcome.
    If the reason for this maneuver is solely to protect legislators from having to actually vote on the Senate bill for appearance’s sake, it’s really a bad strategy. Everyone who is half-paying attention to this debate knows that the reconciliation bill is what the House members will really vote for in the end, so why worry about political cover?
    So let’s say they go ahead and vote the Senate bill first, let Obama sign it into law, and then pass reconciliation. Obviously, the House would vote for reconciliation. How much worry is there that the Senate would not pass the reconciliation bill?
    I guess the Senate could fight the House over the details of that bill, but as Crank mentioned, that could happen with the current strategy anyway.
    So what’s the downside of doing it right? Maybe it would take it too long and they want the issue over before the fall so voters will forget?

  4. If they want to cheat to pass a bill that vast majorities don’t want at all-Go for it-they will be slitting their throats and President Empty Suit might as well come out and say he isn’t running for re-election. This is the type of thing that will not be forgiven or forgotten by the electorate, it will be litigated and the Republicans will run with the express mandate to repeal this disaster.

  5. LMAO. I love how people keep saying that “the American people don’t want this bill.” The American people don’t have a freaking clue about the details of this thing. They will make a decision after they see how it actually affects them. There is nothing in recent history to suggest that most people give a crap about the legislative mechanics used to pass a bill. Hell, most people don’t understand why it takes 60 votes to, typically, get things done in the Senate.
    Republicans are taking a risk by painting this bill as the worst thing in human history. It’s a good tactic for short-term base rallying and it will probably work this fall. But if the bill turns out to be one that people see positive results, then it’s going to be a huge long-term benefit for Obama and the Dems. It reminds me a lot of the budget battle in 1993.
    The difference this time is there is nothing in Obama’s history to suggest that he will, like Clinton, run to the right in the face of adversity. Of course, unlike Clinton, he won’t have to. Clinton didn’t get health care done. Obama is about to do it on Sunday.
    Republican loyalists had better hope the economy stays weak. If it’s better at all in two years, Obama is going to win in a landslide. Not 1984 Reagan landslide (I don’t see that happening for either party any time soon), but a landslide nonetheles.

  6. Knock me over with a feather. When the Dems use a parliamentary move that the GOP used 35 times during the last session they had control, the former is unconstitutional and the latter not.
    So, Crank, when are we going to get a post about Pope Schultz VI — I see nothing, I hear nothing, I know nothing?

  7. The public does understand enormous, historically off the chart, unsustainable deficts. They understand money being taken out of their checks for 3-4 years before a program even starts. This clown got 52% of the vote with a 200 million dollar spending advantage, 24/7 media adulation and Republicans in power and blamed for every mistake. 6-10 million people who traditionally vote Republican on financial issues eithe sat out 2008 or a few even voted for Obama-who do you think they will be voting for 2012?

  8. @DCH: This clown? Really? Your attitude and vastly superior predictive powers make you too formidable an opponent for me to dream of debating. Good luck with those anger management classes.

  9. “Knock me over with a feather. When the Dems use a parliamentary move that the GOP used 35 times during the last session they had control, the former is unconstitutional and the latter not. ”
    This is materially different than the GOP’s parliamentary moves in the past. The Dems’ Constitutional argument needs to be based on Article I, Section 5, and the language of the bills itself are apparently important.
    From what I can gather at this point, this looks like an area of grey rather than black and white, and it’s best to avoid the grey if you can.

  10. dch,
    Reagan proved deficits don’t matter.
    Or do you now realize that St. Ronnie was a brain addled know-nothing, who started the race to the bottom for your nation?
    Just kidding. I know you really don’t believe anything you write here, and are just trying to deflect blame from the real culprits. Thank Allah we live in a nation of people smart enough to see through your rants.

  11. Watch it, Magrooder. Those pedophiles and their enablers are where Crank gets his moral standing, of which he’s so smug.

  12. Jackson:
    When do people start seeing how this bill actually affects them? The first four years of the bill are dedicated to collecting money to spend on the rest of the decade’s programs to keep up the farce of Obamacare being “deficit-neutral.”
    I’m asking a serious question. In what way will it suddenly become clear to everyone how awesome this bill is once it becomes law? Is there anything that can be reasonably construed as a benefit that the average American will see from this bill in the next year or two?

  13. Joel,
    My understanding is that these things will change within the first year of enactment:
    –Insurance companies will be barred from dropping coverage of people when they get sick. (This alone is worth the trouble of passing the bill).
    –You can stay on your parents coverage until the age of 26.
    –Uninsured adults with pre-existing conditions will have the ability to obtain health coverage through a new program (which will expire when new insurance exchanges begin operation in 2014).
    –A temporary insurance program will be created to help companies maintain coverage for early retirees between the ages of 55 and 64. (This also expires in 2014)
    –A tax credit becomes available for some small businesses to help provide workers coverage.
    It’s not single-payer (nor does it even provide competition to private insurers through a public option), but it’s a start.

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