Can the House vote to adopt a rule which “deems” that a particular bill has been passed, even if that particular bill has not been passed? If so, are there any limits to the adoption of House rules which eliminate voting on bills? For example, could the House at the start of a session adopt a rule which states that there will be no voting by individual members, and that the House during the next two years will “deem” to have been passed whatever the Speaker of the House deems to have been passed? Is the question justiciable?
I don’t have a fully-formed opinion on these topics, and would welcome well-informed comments. Please stick to this issue, not to the merits of the legislation. The most relevant constitutional text would seem to be the following:
Article I, sect. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, sect. 5: Each House may determine the Rules of its Proceedings, . . .
Article I, sect. 7: 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
Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.
JohnF says:
This seems like something of a false issue in this case. The “Rule” relating to the health care bill carries the language about deeming it passed under conditions X,Y or Z (I think one condition is that the Senate pass desired amendments through reconciliation). In any event, the Representatives must vote on the Rule itself, showing their conditional “aye” vote on the actual health care bill.
The real issue is whether the Representatives can make a conditional “aye” vote, rather than only an unconditional one.
As the House can make its own voting rules, I’d think yes is the answer.
March 13, 2010, 2:12 pmGuest says:
Isn’t Field v. Clark the most relevant case on point?
March 13, 2010, 2:17 pmJoe says:
JohnF, you have to be kidding me. This is the crux of the matter, whether the Constitutional requirement of bicameralism and presentment has been met. This is also one of the most detailed parts of the Constitution, or “How a Bill Becomes a Law” if you’d like.
Now where in “all cases” is there room for a House to simply “deem” a bill passed with changes, JohnF? There isn’t. They must pass the Senate bill, word for word, it must be signed by the President, and then they can come back to the reconcilliation process. Reconcilliation is for existing law.
If this is sufficient (and it isn’t), than our Constitution is meaningless. I’d be curious, JohnF, if you could cite another law that has been passed this way, by “deeming” it passed with changes. Be specific. You won’t find one, because this is unprecedented and dangerous.
March 13, 2010, 2:29 pmPersonFromPorlock says:
Could a law previously enacted by Congress and signed by the President be deemed not to have passed? That would seem to offer a quick way for the (presumably) upcoming Republican Congress to do away with Obamacare.
I say again that the most interesting thing about ‘the law’ is its two-headed calf aspect….
March 13, 2010, 2:40 pmKazinski says:
There are few knotty issues, I thought the Senate Bill had to pass the House unaltered for it to be eligible for a reconciliation bill. If that is the case then how is just incorporating it into a rule, passing it unaltered. The senate didn’t vote on a rule they passed a bill.
Second of all I thought the Senate Parliamentarian gave an advisory ruling that the original Senate Bill had to signed by the President before a reconciliation bill could be taken up by the Senate. That would make the Slaughter rule moot.
But all these shenanigans are based on Senate and House rules. However they butcher the rules to get the bill through, if it ends up on the Presidents desk as a bill with all the language in it, then I think the courts will stay out of it.
March 13, 2010, 2:45 pmyankee says:
It seems well-established that the Senate’s power to set its rules allows it to change the Constitutionally specified majority vote requirement to a de facto supermajority vote requirement, so I don’t see why not.
Also, is there any substantive difference between voting on a resolution that says “X bill is passed” and voting on a “rule” that says “we deem X bill to have been passed”?
March 13, 2010, 3:03 pmRichard Riley says:
An online search suggests that the “Slaughter Solution” has no more real existence than the “Constitution In Exile.” It is a pejorative term used only by opponents of the idea in order to bash its putative proponents.
On the substance, I think the preceding comment by yankee has the answer – a resolution actually passed by majority vote of the House that “deems” a bill to have been passed amounts to passage of the bill. I see no reason it would violate the bicameral-approval-and-presentment requirement as the one-house legislative veto struck down in Chadha did.
March 13, 2010, 3:19 pmThe Drill SGT says:
What Joe said well…
March 13, 2010, 3:31 pmPeteP says:
And a related question that has been raised :
Now, a question on process – if the House approves the Senate HC bill, that bill will be ‘enrolled’, and sent to the Speaker, who in turn is SUPPOSED to send it to the President.
But – can the Speaker REFUSE or DELAY sening it to the President ?
This strategy has been rumoured – that pelosi will simply HOLD the Senate bill at her desk until and unless the Senate then passes the ‘reconciliation sidecar’. The implication is that this gives the House assurance that the Senate actually passes their ’sidecar’ via reconciliation.
However – WHAT IF THEY DON’T ? What if the ’side car’ either fails in the Senate, or is so punched full of holes by Points of Order or amendments that the House ( who would then have to vote on the changed bill again ) refuses to pas it ?
Can Pelosi then refuse to EVER send the original Senate bill ( which the House, in this argument, will have passed, even with their BS ‘deemed to have passed crap ) ? IOW – does the Speaker of the House in effect hold ‘pocket veto’ power over all legislation ?
Pls answer if you know !
March 13, 2010, 3:47 pmRoyLitmus says:
Such a rule, say allowing the speaker to simply decree legislation has passed, would be so contrary to the core of a constitutional republic with limited, separated powers that if the courts did not intervene citizens would most likely take to the streets and exercise their First Amendment rights perhaps in combination with their Second Amendment rights.
March 13, 2010, 3:50 pmJoe says:
Richard Riley and yankee-
So both of you view passing a “rule” that states that the Senate bill is “deemed” to be passed with “changes” is the same as passing the Senate bill itself? That doesn’t even pass the laugh test.
Re-read the Constitution and tell me where there is room to pass a “rule” instead of a “bill.” The Constitution is very specific on this. Where in the Constitution is the passing of a “rule” by Congress (not administrative rulemaking, mind you) sufficient to make a new law?
This whole “rule with changes” = “bill”, for the constitutional requirement of bicameralism and presentment is unprecedented and dangerous. (If it isn’t unprecedented, please cite it’s use.) The proper thing to do is pass the Senate BILL, signed by the president, then reconcilliation changes. The fact that we are going down this road suggests to me that they don’t have the votes for a straight up-or-down vote on the BILL, as detailed in Article I, Section 7. The process has devolved into political chicanery at this point.
Also, I’m thinking of the Schoolhouse Rock song that Richard Riley and yankee must have learned as kids: “I’m just a rule, a rule on Capital Hill.” I must have missed that episode.
March 13, 2010, 3:52 pmOrenWithAnE says:
This could be easily avoided if 51 Senators would sign their names to a public letter promising to vote for the reconciliation bill (include the entire text here) and to vote again any amendment to that bill.
In that case, the House would have a firm commitment that the amendments they have negotiated with those 51 Senators will be passed promptly and that would simply be the end of it.
March 13, 2010, 4:02 pmAndrew says:
The House is considering whether to have a single vote on two bills at once: (1) the Senate Health Care Bill and (2) the Reconciliation Bill.
The two bills that the House is now contemplating directly contradict each other. For example, one says that Nebraska gets the “Cornhusker Kickback” and the other says Nebraska does not get the “Cornhusker Kickback.”
I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter bodies to pick which policy they like best.
Congress could use the same approach to allow a line-item veto, by passing a thousand budgets instead of one, and letting the President pick whichever one he likes best. And that would also violate the nondelegation doctrine.
March 13, 2010, 4:05 pmmls says:
It might help if someone clarified exactly what the “Slaughter Solution” is and what it is trying to accomplish.
March 13, 2010, 4:19 pmgeokstr says:
The left has been openly quite dismissive of this scrap of paper called the “constitution” for a century, and has made it quite clear that it is just another obstacle to overcome as they endeavor to avoid wasting this crisis. Jeez, it was written by slave-owning Dead White European Male landowners, so it really has no moral authority, right? As Obama has been caught on tape as saying, it never even addressed “economic justice” or “redistribution of wealth”, which he apparently sees as trumping all these other trivial things like property rights, freedom of speech, separation of powers, and other bothersome ancient concepts that have no relevance to the real world of today.
This attempt to find a legally acceptable way around the constitution and the rules is only for show because they know that the silent majority has finally started to wake up and is becoming mighty p*ssed. Otherwise they’d simply say it again – “We Won” – and do it any way they damn well pleased.
March 13, 2010, 4:22 pmMatt says:
Oren with an E…
Thanks, I needed a laugh! Do you really think that a ‘letter’ will do the trick?
Your Honor, I know what the law says but I have a letter!
Even if the Slaughter House Rule passes constitutional muster, what does it say about our process that our legislators are afraid to vote for a bill but think people won’t notice if they vote for the rule change that amounts to nothing more than voting for bill?
March 13, 2010, 4:25 pmMark Buehner says:
That would work if there was an actual agreement on what the reconciliation is going to look like. There isn’t and there is good reason for it. Right now it could be anything, so fence sitters in Congress can vote for the Senate bill and later claim they expected certain changes that were never done. If congressmen knew ahead of time what the changes are going to be you’d get fewer votes. Its an election ploy so congressfolk can later claim to have been duped, even knowing they would be duped ahead of time.
March 13, 2010, 4:26 pmRichard Riley says:
Joe -
Like it or not, the U.S. Congress and every other legislature on the planet operate by pretty arcane procedural rules. Pounding your shoe and saying “Just pass the bill, the Constitution says pass the bill!” doesn’t answer the question HOW you get a bill passed. Your position is just know-nothingism. Whatever party is in power, there are going to be complex rules, quorum requirements, committees including the arcane Committee of the Whole House, and various other mechanisms to get bills postured for debate and voting.
In the end, whether the proposal is styled a “rule” or anything else, if a majority of the House properly assembled votes to approve a proposal that the members acknowledge is before the House, it seems to me they have passed the bill. If both houses pass the same proposal and the president signs it, we have a law. In tricky cases like this one the parliamentarians of both houses will decide if the procedural requirements have been followed. But it’s silly to say that procedural complexity means you don’t have a “bill” in a constitutional sense.
March 13, 2010, 4:27 pmAndrew says:
Everyone agrees that the only way to approve the Senate Health Care Bill is to approve it verbatim; additionally, the Reconciliation Bill cannot include non-budgetary matters or else the Byrd Rule would be violated and the Senate would then need 60 votes to approve it.
The purpose of the Slaughter Solution is to allow the House to avoid a vote that simply approves the Senate Health Care Bill. So, the idea is to simultaneously approve a Reconciliation Bill and the Senate Health Bill at the same time. Here are some quotes that describe this bogus strategy:
And:
And:
As mentioned above in this thread, this strategy of having one vote on conflicting bills would violate the nondelegation doctrine, because it would totally abdicate the House’s policy-making powers, by giving the Senate and White House a buffet of different policies from which to choose.
March 13, 2010, 4:29 pmcboldt says:
– But – can the Speaker REFUSE or DELAY sening it to the President ? –
March 13, 2010, 4:29 pmI don’t know if Congress can delay presentment indefinitely, or, for example, until Congress adjourns and thereby create the “veto” effect you noted. H.R.6061, The Secure Fence Act of 2006, was delayed in presentment, but cleared Congress and was presented.
As a matter of form, I would look to the step of enrollment to analyze whether HR 3590 would be in condition for presentment. I would think a contingent/delayed passing (contingent on Senate passing the amendment package via any means, reconciliation being the means hypothesized) affects “reconciling” a “passed bill.”
The reason Congress is entertaining this bastardized process is to surmount the “60 votes to circumvent unlimited debate” norm of the Senate. If the Senate didn’t abuse cloture, the House could just amend HR 3590 and send it back over the fence. I think a significant objective of the hypothesized novel procedure is to shift responsibility/blame as between the House and Senate.
cboldt says:
– I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter bodies to pick which policy they like best. –
March 13, 2010, 4:34 pmHigh five to that. Well done.
Except in this case, the posture does not resemble delegation of decision. The House is signaling the policy it prefers, which is passing BOTH, the Senate bill and reconciliation. If the Senate does not agree to reconciliation, then the Senate bill is not agreed to; but if the Senate agrees to reconciliation, then the House agrees to the combination.
In essence, the House is making its preference very clear, and is shifting the responsibility for up/down agreement to the Senate.
Andrew says:
If the House wants to make its preference clear, it can pass an amended version of the Senate Health Care Bill, instead of approving the Senate Health Care Bill verbatim.
March 13, 2010, 4:37 pmef says:
None of the arguments for this procedure address the constitutional requirement that joe pointed out way up top.
How do you record votes specifically for a bill, when it was “deemed” to be passed instead of actually voted on?
March 13, 2010, 4:38 pmcboldt says:
My short “gut” answer is that I see no constitutional infirmity. If both chambers pass the same language, then the bill can be presented to the president. How the chambers interact to obtain that result is up to Congress, not the Constitution.
March 13, 2010, 4:44 pmI also see no constitutional infirmity if both chambers pass the same bill, and never send it to the president. My thought is that the president can refuse to appoint a nominee who has been confirmed – the ultimate decision is in the presidents hands. And with legislation, the ultimate decision is in Congress’s hands. Heck, there is a “motion to reconsider” passed motions and bills, where the winners can obtain “buyer’s remorse” relief. Congress hasn’t concluded it’s assent to legislation until it commits the final act, presentment.
mls says:
Since you people are too lazy to do my research for me, I googled the “Slaughter Solution.” If I understand it correctly (which I may not), the problem would seem to be that the House would be voting on two bills with one vote. This would seem to offend the single bill concept of Article I and be contrary to the line item veto case (Clinton v. NY). Its not so much that the House is “deeming” a vote to mean that a particular bill has passed, but that it is deeming a single vote to mean that two separate bills have passed. If it could do this, it could deem every provision in a bill to be a separate bill, effectively achieving what the Supreme Court said it couldn’t in the line item veto case.
That’s my first reaction, anyway.
[DK: Excellent point regarding the line-item veto. For readers who want to keep the thread focused on legal, rather than political discussion, this would be a great topic to examine.]
March 13, 2010, 4:45 pmcboldt says:
– If the House wants to make its preference clear, it can pass an amended version of the Senate Health Care Bill, instead of approving the Senate Health Care Bill verbatim. –
March 13, 2010, 4:49 pmI agree that the form you lay down makes the policy preference clear and unequivocal. So does the “Hey, Senate, pass both or neither” method. It’s an intramural contest, not a Constitutional one. A majority vote in both chambers results in passage. How Congress gets there is up to Congress.
– How do you record votes specifically for a bill, when it was “deemed” to be passed instead of actually voted on? –
The vote is recorded. Each Rep agrees to what will be, effectively, amended HR 3590. The formality of enrolling HR 3590 is contingent on Senate agreement to the reconciliation package.
Andrew says:
cboldt, the House has certain powers that it may not delegate to the Senate. Correct?
March 13, 2010, 4:51 pmef says:
Each Rep agrees to what will be, effectively, amended HR 3590
Except it will not, by the very specific language created to achieve the desired result, be amended. Were it amended, it would require senate passage before it could be presented. So it remains two separate bills, passed with a single vote. Add the recorded vote requirement to the single bill requirement pointed out by mls, and it seems fairly unconstitutional to me.
March 13, 2010, 4:58 pmpts says:
So let’s just say that the majority in the House pass a rule that says the a 40% vote passes a health care bill. The Constitution provides that each house may set their own rules. That way the wavering ones have cover. Is there anything in the Constitution that says the bill must be passed by a majority? Where?
March 13, 2010, 5:05 pmcboldt says:
– the House has certain powers that it may not delegate to the Senate. Correct? –
March 13, 2010, 5:07 pmYes, but …
The House is signalling that it agrees to, will pass, did pass HR 3590. There is no delegation. What is present is a contingency.
ef says:
I thought they had to pass a law, not just signal it being passed.
I get what you are saying, but I thought that pointing out how hard you have to try to even approach compliance with the constitution might be worthwhile.
March 13, 2010, 5:12 pmcboldt says:
– Were it amended, it would require senate passage before it could be presented. –
March 13, 2010, 5:13 pmAnd that principle is not offended in the least, if the Senate agrees to the reconciliation package. The Senate has complete control over whether or not “the package” obtains condition for presentment. The Senate can reject, via amendment or outright NAY vote, the reconciliation package. And if it does so, HR 3590 is still sitting in the House, available for further action.
cboldt says:
– I thought they had to pass a law, not just signal it being passed. –
March 13, 2010, 5:16 pmCongress has to pass the law. If both chambers agree to the same language, then Congress has passed the law.
Where in the constitution is “Senate must pass with 60 votes?” It’s not there. All this maneuvering is inside baseball, to surmount the 60 vote dohicky.
Eluchil says:
I think that Joe is wrong because the “But in all such Cases” language refers to the sentences immediately preceding and only governs votes to overturn vetoes. Otherwise the practice of “voice votes” and unanimous consent by which non-controversial stuff is passed by the House and Senate respectively would be unconstitutional.
March 13, 2010, 5:17 pmAndrew says:
cboldt, do you think that Congress as a whole could pass a thousand different budgets and invite the president to sign the one he likes best? Or take a single vote in each house “deeming” every sentence in a bill to be a separate bill?
If Congress as a whole cannot do it, then I have trouble with the idea that the House can do it. A House bill (or combination of bills) that amounts to “we approve whatever you decide” is not adequate or intelligible.
March 13, 2010, 5:21 pmef says:
Now we’re bolding whole comments? IS THAT LIKE SKIPPING RIGHT PAST ALL CAPS?!?!?!?!
That’s the same reconciliation process that the Senate rules guy said is out of bounds for this particular issue, right?
March 13, 2010, 5:22 pmJoe says:
Wonderful, Richard. “Know-nothingism.” Apparently a last refuge for you, given your weak argument. Okay, I guess you are with “know-everythingism”, so answer the question. When has a “rule” been passed in the House that has “deemed” a Senate bill passed while simultaneously making changes? When has this happened previously, and with what law? If this is so obvious to you in your “know-everythingism” omnipresence, why don’t you cite an example? Hmmmmm?
Because it is unconstitutional. Quick Con Law lesson for you, Richard. You may have missed that semester in law school, assuming you went. There are two ways that a bill (starting from either the House or Senate) passes through Congress, to pass muster with the constitutional requirement of bicameralism. Either:
1) A bill is passed from each chamber with identical language.
2) Two different bills are passed. The different bills are taken to a conference committee. Conference committee issues a report, which is then passed in each chamber without changing any language.
Both of those avenues meet the bicameralism requirement. The idea of passing a “rule” in the House so House members can ostensibly pass “changes” along with it IS NOT THE SAME AS THE SENATE BILL ITSELF. How is a “rule” that “deems” passage in the House the same as an actual BILL in the Senate that has actually passed?! The Senate BILL was not a rule that was “deemed” to have been passed, it was passed BILL! How is bicameralism satisfied with this procedure?!
The onus is on you, Richard, since you are defending this unconstitutional and unprecedented procedure. Name when this has been done before (year and law passed) and also describe how this satisfies bicameralism.
Even though you apparently fancy yourself as a “know-everything”, I’m betting you know nothing on these questions.
March 13, 2010, 5:24 pmbpbatista says:
If the “Slaughter Rule” is Constitutional, then I suggest that tarring and feathering your Congressional Representative is a Constitutionally protected form of free speech.
March 13, 2010, 5:26 pmmls says:
What I read suggested that the Slaughter solution is simply a way to avoid requiring Members to vote separately on the Senate bill and the “reconciliation fix.” Once that happens, the Senate bill would become law (assuming it is signed by the President) and the reconciliation bill goes on to the Senate. I am not sure what the “contingency” involved here is.
It is true that there are things like voice votes and UC agreements that allow bills to be “deemed” to have passed despite the absence of a quorum or an actual vote. But every Member still has the opportunity to vote for or against any bill, and to demand the yeas and nays, in those cases. This seems to be a little different in that Members would be required to vote on multiple bills as a package deal.
March 13, 2010, 5:34 pmDavid M. Nieporent says:
Really? So you see no reason why not passing a bill would violate a rule requiring it to be passed? Consider this: could the House pass the exact thousand-plus-page Senate bill, except with one additional trivial provision of one sentence that declares March 13, 2010 to be a Saturday? I think we’d all agree that the answer is no: no matter how trivial the additional provision is, no matter how small it is compared to the bill as a whole, no matter the fact that it changes the operative provisions of the Senate bill by not one iota, adding it to the bill means that the House has not passed the same bill as the Senate.
So how can the House tack the Senate bill onto a reconciliation bill, cast a vote on both as one combined bill, and then pretend it has passed the Senate bill unchanged?
March 13, 2010, 5:35 pmDavid M. Nieporent says:
No; in that case the House would have a piece of paper with some signatures on it. That’s no more a “firm commitment” than Obama’s promise that nobody would lose their health insurance if they liked it, or his promise that nobody making less than $250,000 would see a tax increase, were “firm commitments.”
March 13, 2010, 5:39 pmOrenWithAnE says:
Yes, I think a US Senator would not openly contradict a black-letter promise to do a very specific thing. No, the letter would not be admissible in a court but violating it would be punished rather swiftly in the court of public opinion.
March 13, 2010, 5:42 pmcboldt says:
– Now we’re bolding whole comments? –
March 13, 2010, 5:42 pmHehe. My typo putting a “b” after “Congress” instead of a “/b”
– That’s the same reconciliation process that the Senate rules guy said is out of bounds for this particular issue, right? –
Right. The parliamentarian. The guy who rules on parliamentarian things, not on constitutional things.
– do you think that Congress as a whole could pass a thousand different budgets and invite the president to sign the one he likes best? Or take a single vote in each house “deeming” every sentence in a bill to be a separate bill? –
To the first question, the current bill does not pose that conundrum. Congress either passes HR 3590 with reconciliation, or it passes neither. The president either gets a bill, or not.
To the second question, the “Deeming” is still between chambers of Congress. How they choose to interact is up to them.
OrenWithAnE says:
As I understand it, the text of the reconciliation bill has already been shopped to the various Representatives. All that’s need is an ironclad promise by 51 Democrats to reject any GOP amendments.
“Unprecedented” and “unconstitutional” are not synonyms. There are many constitutional things that have never been tried before. One wonders how one does anything at all (the first time) in your constitutional universe.
Well, no one has lot their health insurance and no one have seen a tax increase, so I think Obama is in good shape on both those accounts!
March 13, 2010, 5:47 pmAndrew says:
Well, I hope they try the Slaughter Solution. It’s so convoluted and deceptive that the whole bill will come crashing down, IMHO.
And I still think it’s unconstitutional for the House to say in a single vote “we approve the Cornhusker kickback” and “we reject the Cornhusker kickback” and “we hereby approve whatever the Senate does about the Cornhusker kickback.” Talk about unintelligible!
March 13, 2010, 5:51 pmJohn Skookum says:
Any representative who votes for this is a traitor who is mounting a coup against the Constitution of the United States. Pass it, and about 80 million otherwise law-abiding citizens would consider justice served if each and every one should be summarily seized, marched against a wall, and have their heads blown off by a firing squad. Even better if it were televised nationally pour encourager les autres.
These foolish, selfish little children playing at government have no idea of how dangerous the game has become.
March 13, 2010, 5:52 pmAlast says:
You are misstating the situation. The rules of operation of the Senate provide that a vote can not be taken bile debate on the bill is open. If someone wants to continue debating, it take a vote of 60 to forcibly end debate…. not to pass the bill.
March 13, 2010, 5:53 pmDavid M. Nieporent says:
The first is true but rather misleading, don’t you think? They haven’t lost it because Obamacare hasn’t passed yet. But his promise is that Obamacare wouldn’t cause it to happen, and it would.
The second is false; Obama et al. hiked the cigarette tax last year.
March 13, 2010, 5:56 pmGump says:
I think something similar happened with the Deficit Reduction Act of 2005. The two houses passed different versions of the bill, the president signed the house version, litigation ensued and several circuits held that so long as the majority leader said that the bills were the same the courts had to accept it.
No, I don’t have any citations. Here’s a related news article:
http://action.citizen.org/content.jsp?content_KEY=2388&t=BlankTemplate.dwt
March 13, 2010, 6:02 pmOrenWithAnE says:
That empirical question is still under dispute and while I don’t know the answer, I’m highly skeptical of those claiming the power to predict the future.
As for the cigarette tax, no one likes smokers anyway.
March 13, 2010, 6:03 pmAlast says:
The houses get to set their own “rules” — so the question is “what are ‘rules’ as that term is used in the Constitution?” Can a rule be unconstitutional? For example, could a house adopt a rule that no black legislator can speak or introduce a bill? I think not.
[DK: Very interesting. Feel free to share some cites and quotes.]
I would look to a 17th century understanding of “Rules of its Proceedings” of a legislative body, and what it meas to “pass” a resolution in a legislative body. “Passed” is the important term — what was the understanding of a legislative body “passing” a resolution? I think the answer to that is (except where super-majorities are required) a majority of a quorum. The ability of the body to promulgate its own Rules of its Proceedings, would not extend to a rule that allows a bill to be deemed to have been “passed” when it in fact was not actually subjected to the Yeas and Neys.
March 13, 2010, 6:03 pmAlast says:
And how many legislators have already announced their retirement and are not standing for reelection? They don’t need or care about public opinion.
March 13, 2010, 6:06 pmcboldt says:
– You are misstating the situation. The rules of operation of the Senate provide that a vote can not be taken bile debate on the bill is open. If someone wants to continue debating, it take a vote of 60 to forcibly end debate…. not to pass the bill. –
March 13, 2010, 6:15 pmThat is the function of the Slaughter Rule, to circumvent unlimited debate in the Senate. It’s not a constitutional issue, it’s intramural between Congressional chambers. Under reconciliation, the time for debate is limited to 20 hours, thereby working a temporary cutting out of the “unlimited debate” default. At the end of the previously agreed time limit, they vote.
David M. Nieporent says:
It’s called the enrolled bill rule, and here’s a discussion of it on the VC. And here’s a prophetic comment from Prof. Adler made as part of that thread:
March 13, 2010, 6:18 pmPatricia Downing says:
It’s unconstitutional.
I’m just a poor lowly schnook, but I know autocratic despotism when I see it.
This law makes our representatives in Congress barons and Obama King.
Please. Give me a break with the lofty in-the-cloud explanations.
March 13, 2010, 6:19 pmBruce Hayden says:
Yes to the later, no to the former. I am reminded of a certain (soon to be ex) Senator who promised to use federal funds for his campaign for President. Well, ok, he also promised to put health care negotiations on C-SPAN. Maybe a couple other black letter promises too that were made while still a Senator, but have been broken since.
March 13, 2010, 6:19 pmerp says:
Wow, just wow. These thugs got in power just in time to keep Bush from shredding the Constitution. God help us one and all.
March 13, 2010, 6:20 pmdirc says:
Assuming the House takes this approach (voting on a rule instead of voting on a bill directly), who would have standing to challenge it court?
Assuming that someone has standing, and the Supreme Court takes the case, the only remaining question is, “What does Justice Kennedy think?”
It seems to me that if there were no difference between passing a bill and a rule, then the House would just pass the bill. The fact that the Democratic leadership want to pass a rule instead if the bill tells this non-lawyer that there is a difference.
March 13, 2010, 6:23 pmJ Reece says:
Sic semper tyrannis!
March 13, 2010, 6:24 pmSteve says:
What I gather from this thread is that if I don’t understand some detail of Congressional procedure, the procedure is therefore unconstitutional, and I am empowered to murder any member of Congress who tries to employ it.
March 13, 2010, 6:31 pmPunkindrublic says:
I vote to have a party with rope, tree, and every one of these socialist bastards.
Is that constitutional?
March 13, 2010, 6:32 pmThomas says:
Joe, You misread the requirement for a recorded vote of yeas and nays; that is only required, by the Constitution, when the houses vote to overturn a presidential veto. That is the focus of section 7. Thus, bills can be voted upon by rule of the house in any manner the house deems, such as by unanimous consent, or voice vote, where no recorded vote is taken.
March 13, 2010, 6:32 pmFederal Farmer says:
During the founding era it was common to say that a bill “passed in the affirmative” or “passed in the negative”, the latter stated today as “failed”.
March 13, 2010, 6:42 pmMithras says:
I’m sure glad VC exists to reprint fantasy material from other, less well-informed rightwing blogs.
March 13, 2010, 6:46 pmsomeguy says:
It doesn’t matter if it’s constitutional.
IF they do this, it’s war.
March 13, 2010, 6:47 pmJeff Medcalf says:
The situation is very simple. If this kind of thing starts happening, the Constitution will no longer apply. The applicable rule will be the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” In other words, once the government moves from merely disregarding limitations on its power to outright rule by decree, there will be blood in the streets, because people will not stand for this.
March 13, 2010, 6:50 pmRick Caird says:
cbolt is now wrong twice. He has been corrected on the 60 vote issue. The purpose of the Slaughter amendment is not to avoid a filibuster in the Senate. It is designed to avoid having House members actually vote on the Senate bill. The whole point is to “deem” the Senate bill passed without actually having a recorded vote on the bill. That is what whole constitutionality question is about, not reconciliation.
March 13, 2010, 6:51 pmmockmook says:
The recording of Yeas/Nays in Art I, Section 7 seems to refer only to vetoes. Section 5 already provides for the recording of Yeas/Nays for regular passage.
But, IANAL.
March 13, 2010, 6:52 pmDavid M. Nieporent says:
It’s not merely a prediction about the effects of the bill, but of one of the explicit provisions: the bill requires that all policies meet certain minimum requirements, regardless of the wishes of the insured. It’s not in dispute that not all coverage currently meets those requirements; therefore, the people with those policies will not be able to keep their policies, notwithstanding Obama’s promise.
March 13, 2010, 6:54 pmConcerned Citizen says:
You lawyers can argue all you want about whether or not our elected representatives need to actually vote on a bill to pass it. A large majority of these legislator’s constituents may decide that since their representatives decided not to actually vote on this bill that they don’t need to follow it. Think about that.
The more laws are enacted and taxes assessed, the greater the number of lawbreakers and tax evaders. Lao Tzu
March 13, 2010, 6:54 pmsticky says:
When the Court announced the enrolled bill rule it spoke briefly about the argument presented by the plaintiffs that the rule would allow the Speaker and President of the Senate to act in bad faith.
One could argue that Marshall Fields only applies to unintentional mistakes (like the Deficit Reduction Act) but isn’t applicable if you can prove bad faith.
March 13, 2010, 7:04 pmic says:
17.Mark Buehner says:
“Its an election ploy so congressfolk can later claim to have been duped, even knowing they would be duped ahead of time.”
Do they think the people who were duped to vote for them in 2008 will be duped to vote for the dupes again in 2010? Somebody must be doping.
March 13, 2010, 7:08 pmAndy McGill says:
It is a great legal issue. But it also marks one of the lowest points in a democracy, when it is not even clear that a majority of the legislative body enacted a statute.
I voted for Mr. Obama but I cannot believe he has doubled-down and triple-down to such a low point. In the future, the term “Waterloo” is going to be replaced by “Obamacare”. Are their any adults left in DC?
March 13, 2010, 7:08 pmcboldt says:
– cbolt is now wrong twice. He has been corrected on the 60 vote issue. The purpose of the Slaughter amendment is not to avoid a filibuster in the Senate. It is designed to avoid having House members actually vote on the Senate bill. The whole point is to “deem” the Senate bill passed without actually having a recorded vote on the bill. –
March 13, 2010, 7:14 pmThe Slaughter Rule is procedural smoke, engineered to avoid the cloture function in Senate Rule XXII. The House would have a recorded vote, “We pass the bill on condition that it embodies these changes.”
From a Constitutional point of view, Congress is a “black box” when it comes to passage of bills.
Elliot says:
How long does the House have to pass the Senate bill? Is it until the end of the 111th Congress?
March 13, 2010, 7:15 pmSteve says:
Are their any adults left in DC?
No, the adults are all out in Real America, talking about how there will be war and revolution and blood in the streets if Congress uses a procedure they don’t approve of.
These are the adults in the room, and it is very important that the rest of us stand aside and let them determine the future of the country. We might get hurt otherwise, you see.
March 13, 2010, 7:16 pmpmorem says:
There’s a serious reason to look at constitutionality independent of the particular subject.
If this tool is used now, it will be used again in the future, and most likely for something that current supporters oppose (and vice-versa).
Personally, I think that Pelosi has lost her mind if she’s actually considering handing a tool like this to the party I dislike slightly less.
March 13, 2010, 7:17 pmcboldt says:
– But it also marks one of the lowest points in a democracy, when it is not even clear that a majority of the legislative body enacted a statute. –
March 13, 2010, 7:17 pmThe only thing blocking passage is a political minority. If you advocate democracy, then the bill passes.
cboldt says:
– How long does the House have to pass the Senate bill? Is it until the end of the 111th Congress? –
March 13, 2010, 7:19 pmYes, that is correct. Both House and Senate bills are “alive” until the end of the 111th Congress.
Sarcastro says:
This is really about formalism versus functionalism in Constitutional interpretation.
To wit, are all these threats of violence actual threats, or does their contingent nature make them instead pure partisan internet tough-guy wankery?
And yelling about killing anyone who disagrees with you on the Constitution without any argument to back it up! I mean, if there is a more convincing way to make an argument, I’m not sure what it is.
March 13, 2010, 7:20 pmDavid Trost says:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law…”
The house may indeed deem that a law has been passed, and for the purposes of the internal workings of the house that determination holds sway. The question then is whether that determination holds for the rest of government and for everyone else. The answer is clearly no because passage of a bill and deeming a bill passed are not the same thing. Nothing makes that clearer than to ask the obvious question as to why the house has gone through this contortion. Can even the supporters of the bill doubt, with a straight face, that the reason for the contortion is that the effects of deeming are different from the effects of passage. Otherwise why bother. Clearly if the effects are different, the actions are different.
An earlier commenter noted that if the house may deem a bill passed, a subsequent house may deem the same bill not passed. When the situation is adjudicated in the Supreme Court, the court can invalidate both deemings and redeem the status quo ante.
March 13, 2010, 7:24 pmSarcastro says:
[I'm not sure what all this wailing an gnashing of the teeth at 51 votes to say that something passes by 51 votes is about. To be fair, I'm a functionalist, but I'm not seeing the reason for the rage.
As a procedural tool it seems applicable only to bills passed by the Senate, when a 60 vote majority has been lost before a conference bill could be decided upon. Surely this does not happen enough that allowing passage in such situations will cause the end of the Republic.
As a political tool, it seems an infective attempt at giving worried blue dogs a fig-leaf that no one will be fooled by.
But keep yelling about lynching and clear unconstitutionality if it makes you happy. You guys do it a lot, so I assume it must.]
March 13, 2010, 7:27 pmAndrew says:
The Budget Act says Congressional Action on reconciliation should be completed by June 15.
March 13, 2010, 7:30 pmm says:
caveat (immediately to be obvious): IANAL
March 13, 2010, 7:32 pmI think that, logically, this provision: “Article I, sect. 5: Each House may determine the Rules of its Proceedings,” would allow for each house to determine (any) rules (at all, in defining the terms) of its proceedings. So, for example, “If it’s raining, a bill under consideration in this house will be deemed passed.” Though, if Congress became that frivolous, I’d expect and hope for the reaction that Jeff Medcalf predicts, above, that “there will be blood in the streets, because people will not stand for this.” No constitutional question arising.
Brian B says:
–If you advocate democracy, then the bill passes.–
What if you advocate a constitutional republic?
March 13, 2010, 7:35 pmAlex says:
Thomas, I believe you are misreading it. When it states “In all such cases” it is referring to both the passing of bills and overturning the veto.
March 13, 2010, 7:37 pmMark Buehner says:
Can someone address what mls said about passing two bills with one vote? Is that the case and is it constitutional?
March 13, 2010, 7:40 pmOrenWithAnE says:
A regrettable weakness in our Republican system. I don’t see any solution for this one (other than to immediately strip a legislator of his vote when he announces he won’t run, fat lot of good that will do).
Unless their insurance company changes the plans to meet the requirements.
It’s at least good at quickly identifying whose arguments aren’t worth detailed rebuttal. You should be glad that they make it so easy — the truly insidious extremists take pains never to be identified as such.
March 13, 2010, 7:46 pmPersonFromPorlock says:
Well, I think everyone here is missing a pretty important point. If a rule which deems an unpassed bill to have been passed doesn’t amount to passing that bill in the present, then it must amount to passing it in the past. When else? Under our present understanding a law can be repealed, which is to say another law can be passed undoing it. But if present votes can change a past reality then a present law can be undone simply by a majority of one house voting that the law never passed in their house at all.
It’s time travel. I’m sure Congress will use it wisely.
March 13, 2010, 7:48 pmmockmook says:
Seems there are implicit and explicit “rules” in the Constitution regarding passing a bill.
Seems clear to me, the founders implicitly intended a majority vote to pass a bill, e.g., VP breaks a Senate tie.
It is also clear to me, the same Bill must pass both houses, word for word.
Otherwise, what is THE BILL?
If Congress tries to circumvent that “rule”, they will be playing with fire, and they better hope the SCOTUS will quickly save them from their folly.
March 13, 2010, 7:49 pmChris Travers says:
That says nothing about Bluedog amendments, though, does it?
March 13, 2010, 7:51 pmmockmook says:
Then what is Section 5 for regarding recording Yeas and Nays?
March 13, 2010, 7:53 pmJames Brennan says:
I am not a lawyer … so my comment carries little weight here, other then I am one of those common folk affected by the laws Congress makes and you guys interpret. But my citizen take on this is if you have to twist yourself into a pretzel to pass a law, it’s probably not a good law. If you have to call in the “scholars” to determine if what you want to do is legal, it’s probably not.
If you don’t like a law … vote no. If you do, vote yes. If your ideology is the only thing driving you … resign. It may be the Reps career, but it’s my life and these laws tend to live long after the Rep has retired to a gated community.
March 13, 2010, 7:54 pmJohn says:
It seems to me that you have to look at the whole of Article I. Article I was creating a representative democracy. Accountability and transparency is essential to a representative democracy. Every one votes yeah or nay and the public is then allowed to hold them accountable in the next election. Given that fact, I can’t see how the founders could have meant anything but “up or down vote” when they said “pass the House”. Yes, the House can make its own rules on how bills are proposed and structured. But they have to always vote on the bills directly.
Using this method is I think very dangerous. Nothing in politics ever happens once. And no tactic used by one side isn’t eventually used by the other. What happens if God forbid someday we have real authoritarians in power? This rule would allow the majority to engage in the kind of rule made in the post and essentially end representative Democracy.
March 13, 2010, 7:54 pmChris Travers says:
A little off-topic, but:
You must be VERY, VERY glad that the Supreme Court sided with the commies in Yates v. Unites States, right? After all, if they hadn’t your post might be of a criminal nature.
Bringing this back around, I can see a lot of concerns regarding Constitutional requirements and this sort of manuvering. Which brings me back to a previous question: Why not just get Olympia Snowe in the loop, find out exactly what she wants, and be done with it. If it is really that important to pass something, all you have to do is get ONE Republican to go along with it, and she has previously expressed willingness to negotiate over her position.
It seems that would be far more legitimate and leave less of a malaise over the political scene then to engage in what are really fundamental abuses of parliamentary procedures.
March 13, 2010, 7:57 pmLouie says:
Is this like the mom rule of “[it is passed] because I [we] said so”?
Really, this whole Slaughter rule thing reminds me of one of those 3 cup/2 ball sidewalk shows for the rubes, boobs and hicks from the sticks. I guess the general citizenry really is thought to be that dumb.
March 13, 2010, 8:03 pmTim R. says:
While I disagree with the way of doing so, it is plainly Constitutional. A majority of the chamber is voting for the bill, which is the Constitutional requirement. Hiding a substantive vote may making it appear as though it were a procedural vote is a stupid way to try to grant its members cover. Stupid, but not unconstitutional. The Constitution is specific about how a chamber may override a presidential veto, but silent on how a normal bill is passed – more than silent, it explicitly grants the chambers the right to choose how to do so.
March 13, 2010, 8:07 pmMidwesterner says:
Since constitutionally the Senate version must be passed by the House, the bill that is ‘deemed passed’ (along with the shill) in the House is itself a ‘question’ as in ‘on any question’.
March 13, 2010, 8:10 pmSG says:
What happens if God forbid someday we have real authoritarians in power?
I think a willingness to do something like this defines one as authoritarian.
March 13, 2010, 8:11 pmAlexia says:
Isn’t that essentially what a signing statement does?
March 13, 2010, 8:13 pmtysmwest says:
So cutting past all the legal mumbo jumbo and other bull cocky….If this congress goes down this path..then I “deem” that it and this administration have lost all legimatacy and I will excise my constitutional and natural rights to change the current illegal and unconstitutional adminstration as necessary….with or without a ballot box…. have a great day and thank you for your interest in the nations concerns. (PS sry for typos but just got home from another 10 hour Saturday day….supporting this corrupt government with my tax dollars)
March 13, 2010, 8:15 pmAdam Sullivan says:
IANAL, but it seems that the specificity regarding how an override of a veto is to proceed implies / assumes that the members will have already registered votes in a majority for the same bill. The Congress had always had members register votes prior to the adoption of the Constitution and has since. Certainly there are voice votes, but the formal act of a representatives actually voting remains. Furthermore, the fact that a quorum is required by the Constitution for business to be conducted implies that a sufficient number of specific members must give specific agreement to specific bills for them to go to the President. How does one demonstrate that there was a quorum at the magic moment when the Slaughter rule places the “passage” into effect? Why require a quorum if the framers intended to let the House members outsource voting?
It seems to me that, given both precedent and a quorum requirement, the framers may simply have assumed it clear that members actually have to vote on things for them to be considered “passed”.
March 13, 2010, 8:18 pmDennis Nicholls says:
There’s another Constitutional problem which hasn’t been discussed. Art. I sec. 7 para. 1 states “All Bills for raising Revenue shall originate in the House of Representatives.” It is my understanding that both the House and Senate Obamacare bills include provisions for raising revenue. The Senate bill was created from scratch and therefore appears Constitutionally improper, especially if the House later adopts it instead of its own bill.
March 13, 2010, 8:21 pmjrose says:
In your analogy, wouldn’t the House pass a reconciliation bill that includes only the March 13 language, and simultaneoulsy deem through rule that the exact Senate bill is passed contingent on the reconciliation bill being passed? So, the Senate bill isn’t tacked onto the reconciliation bill?
Although that is convoluted, it doesn’t strike me as unconstitutional. It’s bigger problem is passing muster with the parlimentarian. If, as rumored, the Senate parlimentarian won’t permit the reconciliation bill to be considered unless the original is already law (which makes sense if the reconciliation bill deletes or changes language), then the plan is dead.
March 13, 2010, 8:23 pmBenjamin Daniels says:
The Slaughter Solution is perfectly constitutional. It’s used frequently for passage of the debt-limit through the House, but it’s known as the “Gephardt Rule” during that procedure. In that situation, the House deems the passage of a resolution that increases the debt limit to the level set forth in the budget resolution, contingent on the passage of said resolution.
From my reading of the Constitution, it appears that the phrase “all such Cases” applies only to the cases of a post-veto vote: the majority of the paragraph appears to address that case (“after such Reconsideration”). So the requirement of recording all the votes is absolutely not a requirement for normal passage.
Besides, if it were, how would voice votes be used to pass legislation?
Hope this helps.
March 13, 2010, 8:24 pmChris Travers says:
Agreed!
Of course, it’s not as if the other party was any less authoritarian…. People in power generally believe in power.
Though I suppose they aren’t yet trying to ban the use of table salt in restaurant cooking outside of NYC…. ;-)
March 13, 2010, 8:28 pmBenjamin Daniels says:
Dennis, the Senate version of the health bill did technically originate in the House. It passed in the Senate as an amendment in the form of a substitute to a House-originated bill in order to satisfy the constitutional requirement. It was originally titled the “Service Members Home Ownership Tax Act of 2009″ when it passed the House, but the substitute replaced the entire text of that bill with the health bill and retitled it to “H.R.3590 – Patient Protection and Affordable Care Act”. This sort of thing is done all the time to enable the Senate to propose its own versions of revenue bills.
March 13, 2010, 8:32 pmAdam Sullivan says:
Good point. Hadn’t heard that brought up yet.
March 13, 2010, 8:33 pmDanube of Thought says:
“But in all such Cases…”
I would read “such cases” to mean cases where the president has vetoed a bill and it has been overriden. I have a hard time seeing how it could be construed otherwise.
March 13, 2010, 8:33 pmELC says:
IANAL, just a citizen. It does not seem to me that A1 S7 requires the nays and yeas to be recorded for each bill, just in the case of presidential veto. However, I think it is plain and simple common sense that a bill cannot be passed that has not been voted on. (Especially because there does not seem to be any reasonable purpose in “deeming” a bill to have been passed except that it could not actually… um… be passed. Which, unless demonstrated otherwise, I deem to be the case in this instance) I also think that the founders, including the drafters of our constitution, would employ words like “tyranny” and “despotism” at the very suggestion that a bill could be passed without having been voted on.
I appreciate the reference, but I must nevertheless LOL at the idea of “deeming” a “defiction reduction” bill to have been passed 5 years ago, seeing as how the deficit ceiling has just been raised by about $2 trillion, and the Obama administration forecasts $1 trillion deficits for a decade.
March 13, 2010, 8:34 pmRobert Bayliss says:
2 words — “null” and “void”
March 13, 2010, 8:37 pmAdam Sullivan says:
From Article 1 Section 7 -
Does not the word “passed” imply something more substantive than say, passing a kidney stone, or some other unwanted thing wherein “passing” it involves a lot of pain that one would rather avoid (such as a House member wishing to avoid voting and thereby supporting the Slaughter Rule)?
March 13, 2010, 8:38 pmAndrew says:
Actually, this doesn’t appear to be a real problem. The Senate Bill is HR 3590. The “HR” is because it started in the House as the “Service Members Home Ownership Tax Act of 2009″. The Senate merely erased its contents, renamed it, and inserted new contents. Voila! Benjamin Daniels is right about that. However, Daniels is mistaken about the Gephardt Rule, which did not involve any simultaneous approval of conflicting pieces of legislation.
March 13, 2010, 8:41 pmAlast says:
I don’t have any at the present… I’m just shooting from the hip.
There are multiple flavors to this. On one hand you can ask if the Slaughter rule is a a “rule of proceedings”…. if the answer is negative, then your done (and I suspect this is the right answer). If it is a “rule of proceedings” then another stickier question comes up: Can Congress violate the constitution with a rule of its own proceedings? If so, is it justiciable?
And this can of worms leads us back to the political question doctrine which I think it should be abandoned in favor of a deference rule like Chevron. The hypothetical prophetic comment from Prof. Adler regarding the enrolled bill rule, makes clear that someone has to be able to adjudge rank abuse of the Constitution by the “political department” with standing limited to a state, and original jurisdiction in SCOTUS (who will pass it off to a master or the DC CCOA).
If there is a court challenge, and the Slaughter rule is upheld, then the prophetic comment from Prof. Adler may be more prediction than hypothetical.
March 13, 2010, 8:43 pmJ D says:
I believe the relevant question is whether Ms. Nancy would be considering this procedural move at all if she had the votes to pass both pieces of legislation on their own merit. I think the answer to this is a definitive “NO”. She does not have enough votes to pass the Senate bill as written. So, the entire purpose of this exercise is to circumvent normal House procedures. It’s the intent that makes it wrong.
And, to my understanding, this is the distinction between the Republicans using reconciliation in the Senate to pass certain pieces of legislation in the past and what the Democrats are trying to do now. From what I know, Republicans actually had 70-80 votes for that legislation so they didn’t actually NEED to use reconciliation to get it passed. Reconciliation, in this instance, is the ONLY way the Senate can pass this mess of a bill.
March 13, 2010, 8:48 pmBrian B says:
–The Slaughter Solution is perfectly constitutional. It’s used frequently for passage of the debt-limit through the House, but it’s known as the “Gephardt Rule” during that procedure.–
The test of constitutionlity is congress doing something frequently?
In the matter of the debt ceiling, presumably we are dealing with convenience and efficiency concerning two items which would apparently be passed seperately if need be.
In the case of Slaughter’s solution they are dealing with the Senate bill, which apparently would fail if considered seperately, and so to prevent it losing on a real up or down vote it will be deemed to have virtually passed if it had been put to a vote alongside other provisions which are not part of it.
–Besides, if it were, how would voice votes be used to pass legislation?–
That seems to beg the question of whether legislation in this case is being passed without even a voice vote.
March 13, 2010, 8:52 pmlooking closely says:
I won’t pretend to be an expert in the Constitutional or legal issues here, but I will say one thing.
The average American (also no expert in these things) knows that changing the rules in the middle of the game so that your team can score a goal is slimy and wrong.
Maybe the Slaughter procedure is constitutional, maybe not (and my money is on not. . .), but the Democrats REALLY better watch out if they try this stunt.
At *BEST* Obamacare will pass and have no legitimacy. No matter what the eventual Supreme Court ruling, there will still be a sizable portion of the public that simply won’t accept it.
At *WORST* (for the Democrats and the country), once you’ve opened up this can of worms, its open. If the Dems have created an end-run around the filibuster, then the Republicans will be free to use it to, WHEN (not if) they control the House in 9 months, and possibly when they control both houses not long after that.
Here’s hoping that there are at least some Democrat House members with brains in their heads that see that passing Obamacare this way creates more problems than it solves.
March 13, 2010, 8:52 pmSean says:
No it’s not. That’s not even what it says. The, “BUT IN ALL SUCH CASES,” refers specifically to the overturning of the veto that’s why they use, “but:”
March 13, 2010, 8:58 pmjrose says:
For both the Gephardt and Slaughter Rules, the House votes on a bill which, contingent on the bill being approved by the Senate, passes a second bill. Why is it relevant to the constitutionalty that the voted-upon bill may conflict with the second bill, so long as the two bills taken together resolve the conflict?
March 13, 2010, 9:00 pmlooking closely says:
Voice votes aren’t used to pass exceptionally controversial legislation that won’t pass through ordinary legislative measures; they’re used to pass completely mundane legislation that nobody (even opponents) expects to fail.
The reason why voice votes are legal, is because they are expedient and nobody objects to them. The latter is key.
Again, whether or not the Slaughter maneuver is legal (and again, I don’t see how it can be), it simply doesn’t pass the “smell test”.
The Democrats wouldn’t even be considering passing major groundbreaking legislation in this unprecedented and obscure way if they could pass it the normal way. Just trying it is an admission that Obamacare can’t make it through the normal legislative process.
March 13, 2010, 9:01 pmFrank Ch. Eigler says:
Nope, it was an “amended” (entirely replaced) form of HR-3590. http://www.conservativeblogwatch.com/tag/hr-3590/
March 13, 2010, 9:01 pmnewrouter says:
it’s not the same. they still have to vote on the bill which includes the debt limit. the gephardt rule just buys time. this bs is voting on a spending bill originating in the senate by deeming it passed the house by approving it in a house committee. its a total power grab of 1/6 of the economy by a committee vote.
March 13, 2010, 9:02 pmMarkJ says:
Dear Steve,
Gee, too bad you didn’t live in Germany back in 1933. I’m sure you would have told all those belly-aching Social Democrats in the Reichstag, “You don’t approve of Hitler’s Enabling Act? Quit your bitching–it’s unprecedented, but still perfectly legal.”
March 13, 2010, 9:10 pmLN says:
Give me a break. The average American couldn’t care less about the nuances of Congressional rules; hell, the average political junkie couldn’t care less. On the other hand, the average Democrat wants Congress to pass a bill, while the average Republican doesn’t want Congress to pass a bill. Moreover, the average Republican views the Democratic Congress and President as fundamentally illegitimate, while viewing himself as simply the average American, and thus will be loudly beating the drum that Obamacare was rammed down “our” throats by out-of-control socialists.
March 13, 2010, 9:13 pmAndrew says:
As I mentioned way up in this thread, it would violate the nondelegation doctrine for Congress to pass a plurality of conflicting bills so that the President can choose whichever one embodies a policy that he likes best. And, personally, I think the same principle applies to the House alone; it would not be constitutional for the House to pass a zillion bills containing every possible combination of 1000 English words, and then let the Senate and President enact whichever of those zillion bills they like.
March 13, 2010, 9:14 pmAdam Sullivan says:
Benjamin -
Thanks for the heads up on the procedure the Senate used to put together their own HC Bill. I always learn something at Volokh.
Now, on voice votes – The Constitution actually implies that voice votes are normal and common. Article 1, Section 5 Para 3 reads:
So votes get recorded only when one fifth of those present insist they do. Which is why there are voice votes – they are implied as the course of business unless a sufficient minority objects.
Which actually brings up a question – how would that 1/5th be able to demand (as is their right) a recorded vote on the question of Health Care Reform? Did the framers not intend to force accountability through this right, and how can the House make a rule to take that right away from the minority?
March 13, 2010, 9:15 pmwGraves says:
If they actually try this, I predict it’s going straight to the Supreme Court, where the oral argument in favor of passing legislation by not voting on it should be quite amusing.
March 13, 2010, 9:16 pmHarold says:
And this is how Reid got around the revenue bills originating in the house- The senate bill is an amendment to a house bill, in which the senate bill replaces the house bill in its entirety. In other words, another de facto violation of the inconvenient constitution that gets in the liberal’s way of doing whatever they want.
Oops- someone already said it, but I’ll say it again.
March 13, 2010, 9:18 pmBD57 says:
While I may be misreading it, there seems to be some suggestion that the Slaughter Rule would make passage of the Senate Bill (deemed passed under the Rule) contingent upon the Senate adopting the House revisions (through reconciliation).
If the House proceeds as advertised, the Senate Bill will be ‘deemed’ to have passed the House and Pelosi can (and will) send it on to the President for signature. The House revisions – considered a separate bill – will then be sent to the Senate where they can be adopted, rejected or ignored. The proposed House action would – can not – “condition” approval of the Senate Bill upon passage of the House’s preferred revisions by the Senate.
My sense is the courts would stay out of it because there is some logic behind the “deemed schmeemed” argument (call it whatever you want, anyone who votes to ‘deem’ the Senate bill adopted is in favor of the Senate bill becoming law). Still, the premise of the objection is sound – if the Constitution is to govern, there are some limits somewhere to the mischief that can be done through the rules adopted by the House or Senate. As much as they might wish it would (for example), I doubt a House rule invalidating all votes cast against any resolution, amendment or bill supported by the Speaker of the House would stand.
March 13, 2010, 9:20 pmELC says:
I agree with you about the definitive “NO”. But the purpose is not, I think, to “circumvent normal House procedures”: that’s missing the point, I think. The purpose is to pass a bill indirectly (which is, I think, pretending or purporting to pass a bill) that could not pass if voted on directly, which is how a bill actually gets passed.
In my non-lawyer’s mind, I have been trying to come up with an analogy to the Slaughter Solution.
“Mr. Doe, this woman, Ms. Roe, claims that you raped her at a party. You claim, however that she consented to sexual intercourse. Right?”
“Yes, Sir, that’s right. She did consent.”
“Then, Mr. Doe, it is appropriate to ask you in what way she consented. Did you ask her permission to proceed, and did she reply in the affirmative? Did she acquiesce to your seduction and not try to prohibit your continuance? Just how did she consent, Mr. Doe?”
“Actually, I drugged Ms. Roe and, hoping nobody would notice, I deemed her to have consented. I knew that was the only way I was going to get any before the party was over.”
How’s that?
March 13, 2010, 9:25 pmPeteP says:
OrenWithAnE says: ”
This could be easily avoided if 51 Senators would sign their names to a public letter promising to vote for the reconciliation bill (include the entire text here) and to vote again any amendment to that bill. ”
And this would legally bind them against changing their minds …how ?
“In that case, the House would have a firm commitment that the amendments they have negotiated with those 51 Senators will be passed promptly and that would simply be the end of it.”
Wrong. Unless part of their plan is to have Biden sitting in the chair over-ruling the Parliamentarian, Points of Order can still make swiss cheese out of it – especially with the latest twist where they are going to try to throw in a take-over of higher education funding.
Sadly, I suspect Biden IS part of their plan. If they can get 48 Democrat Senators to agree to totally throwing out the Rules of the Senate ( such that there are not 11 Dems to join 49 Repubs in over-ruling the ruling of the Chair with 60 votes ), the Biden Ploy can work.
March 13, 2010, 9:26 pmjrose says:
I don’t see why that would be unconstitutional, but it doesn’t matter in this case because the House isn’t permitting the Senate to pick and choose between the two bills. The Senate either accepts the reconciliation bill, in which case both the original and revised bills are passed on to the President, or the Senate rejects the reconciliation bill, in which case neither bill is passed onto the President.
March 13, 2010, 9:27 pmAdam Sullivan says:
One other thing – just because the legislative or executive branch of government has done something for a while does not mean that something would survive a Constitutional challenge.
The War Powers Act comes to mind – Congress has a law limiting when and how the President can deploy forces. When Congress and the Executive are at odds and when the President deploys forces you will hear threats of invoking the War Powers Act out of Congress. You also hear threats coming back form the Executive to challenge it. I am wondering if any President has actually said that he is bound by it, and I don’t think it has ever been applied by Congress – only threatened.
A particular rule of Congress, or a “kind of rule” that has been used in the past does not, in itself, imply Constitutionality.
March 13, 2010, 9:33 pmOrenWithAnE says:
Yes it does — it states that 51 Senators commit to voting them down, irrespective of whether they think it’s good policy.
That’s the only way the bill is going to get passed — the House is going to have to trust the Senate to make the changes after it goes to Obama’s desk (according to the Parlimentarian, anyway, I suppose Reid could fire him though…)
March 13, 2010, 9:33 pmBenjamin Daniels says:
This is not what would be going on. The reconciliation bill would be written in such a way that it would amend the Senate bill. Since that bill won’t have passed both houses by that time, the House will also have to pass the Senate bill. The difficulty is doing it in a way that can’t leave the House stranded with the unpopular parts of the Senate bill if the fix was for some reason to fail in the Senate. This is the hurdle the Slaughter rule is designed to clear, precisely so that the final form can be sent to the President.
It’s not an underhanded or unconstitutional mode of passage, it’s a procedural solution to pass an amended form of the bill in a single vote without getting into a mess.
As a side note, the rules of the House probably could be used to pass just about whatever they like via rules rather than explicit votes. They won’t do this, however, because they actually want the votes on the Congressional Record in order to tout them. Democrats are not out to undermine the Constitution or the democratic process or anything like that. They’re serving their constituents the best way they can, as far as I can tell, especially from polling data among Democratic supporters (one recent large-sample survey came back with 83% in favor of passage).
March 13, 2010, 9:34 pmAndrew says:
I think you misunderstand the plot. If the Senate rejects the reconciliation bill, then nevertheless the original bill (i.e. the one passed by the Senate in December) is passed onto the President.
March 13, 2010, 9:34 pmOrenWithAnE says:
How many words in common do the two bills have to have in common to satisfy (your reading of) AIS7?
March 13, 2010, 9:38 pmAdam Sullivan says:
More directly, I think the purpose of the Slaughter Rule is to deny the minority the right to ask for the “Yeas and Nays” on the Question of Health Care Reform to be entered into the record. If the minority is 1/5th or greater, it is their right to have the vote recorded. Having the vote recorded is what Pelosi wants to avoid – there are members who would vote for the bill if they can deny that they did.
March 13, 2010, 9:38 pmJohn says:
“Give me a break. The average American couldn’t care less about the nuances of Congressional rules; hell, the average political junkie couldn’t care less.”
Actually voting on a bill is not a “nuance”. And most people thought this bill died when Brown was elected. People are not as dumb as liberals think they are. It is bad enough to pass a horribly unpopular bill. It is quite another to try to do it and then claim you didn’t really vote for it but for the rule that made it so. The country will go balistic if this thing is passed this way. Only the truely craven parisans who will support anything no matter how vile will be happy. Have fun getting the 20% cretin vote.
March 13, 2010, 9:38 pmAndrew says:
I think you misunderstand the plot. There is simply no way for the House to avoid the possibility of being stranded with the unpopular parts of the Senate bill if the fix was for some reason to fail in the Senate. The much more limited goal of the Slaughter Solution is to allow members to speak out of both sides of their mouths; i.e. vote for the Cornhusker kickback while at the same time voting against it.
March 13, 2010, 9:38 pmJohn says:
“More directly, I think the purpose of the Slaughter Rule is to deny the minority the right to ask for the “Yeas and Nays” on the Question of Health Care Reform to be entered into the record. If the minority is 1/5th or greater, it is their right to have the vote recorded. Having the vote recorded is what Pelosi wants to avoid — there are members who would vote for the bill if they can deny that they did.”
But they still will have a Yeah on the rule change? And saying you didn’t vote for the bill but only the rule, is basically telling voters to go “F” themselves. I think that little stunt will make voters more angry than just voting for the thing. Voting yes at least has some integrity to it.
March 13, 2010, 9:40 pmOrenWithAnE says:
Nope, no President has ever conceded that the WPA applies to him and no Congress has ever attempted to apply it.
March 13, 2010, 9:40 pmAtomic says:
Given that any law or rule is meaningless without enforcement — what process exists to challenge the Slaughter method if it is actually used and the bill is “Passed”?
The president expects to sign it anyway, so then what? How should a challenge be mounted? What could be done before the money starts flowing?
March 13, 2010, 9:41 pmBenjamin Daniels says:
I believe it actually does, since the Constitution specifically allows the houses of Congress to set their own internal rules. Something that’s been done in the past isn’t necessarily constitutional as far as bills go (see, for example, the legislative veto), but as far as rules are concerned, anything is fair game. GOP Rep. David Dreier, head of the Rules Committee during the Republican majority, confirms this with respect to the Slaughter rule.
March 13, 2010, 9:41 pmJohn says:
Andrew,
The Slaughter rule amounts to a jedi mind trick on the voters. I can’t see how it doesn’t make things worse for them politically. Everyone sees what is going on and no one will believe anyone who denies really voting for the Senate bill. They would be better off just passing the Senate bill.
March 13, 2010, 9:43 pmJohn says:
“The president expects to sign it anyway, so then what? How should a challenge be mounted? What could be done before the money starts flowing?”
The minority in the House would have standing to sue. They bill would have not been properly passed by the Congress. And not that much money flows initially. It is mostly mandates and rules, which can be enjoined from happening until the case is resolved.
March 13, 2010, 9:44 pmBenjamin Daniels says:
This is quite incorrect. The whole idea is to not vote for provisions like that while simultaneously removing them from the final law. Also, the House can avoid the possibility of getting stranded if the Senate moves first, although I’m not 100% clear how that might work. I’m sure there’d be a way if it was necessary.
March 13, 2010, 9:45 pmPeteP says:
cboldt – “Under reconciliation, the time for debate is limited to 20 hours, thereby working a temporary cutting out of the “unlimited debate” default. At the end of the previously agreed time limit, they vote.”
With all due respect, that’s not correct. There are two exceptions, IE ;
Points of Order – these can be raised in unlimited quantity, and the parliamentarian must rule ( ‘advise the Chair’, actually, not ‘rule’ ) on each one, then the Chair must either affirm or refute that advice by issuing a Ruling, which is binding unless 60 Senators vote to over-ride it. Such a vote can be called for each time.
Amendments – this process is partially defined in the current year’s budget resolution ( which also states what issues can be brought under Reconciliation that year, health and education are on this years list, etc ). The Budget Resolution this year does NOT say that amendments msut be germaine, so they need not be. Also, there is no limit placed on how many.
Each amendment can be offered, and if the Senator demands, read into the record in whole. This is followed by a vote at some point ( either 2 minute vote or 15 minute vote, depending on who wants to object or not ). So, if an amendment is offered that happend to be a few thousand pages long ( it could contain a verbatim copy of the NYC phone book, for instance ), the process could be tied up until next year.
The flip side of the coin is the Biden Bomb. They can sit Biden down in the Chair, and he can rule ‘all additional points of order and amendments are considered to be dilatory, and are hereby ruled out of order’. If they can prevent 49 Repubs plus 11 Dems from voting against THAT one, THEN the final vote occurs.
And the minority is threatening holocaust if they try that. How much they actually follow through is a whole ‘nother question. These are politicians we’re talking about.
March 13, 2010, 9:45 pmOrenWithAnE says:
Voters are going to be very angry if November rolls around and the Dems have not accomplished anything in 2 years.
So damned if they do, damned if they don’t.
March 13, 2010, 9:46 pmAndrew says:
Yup.
March 13, 2010, 9:46 pmJohn says:
“And the minority is threatening holocaust if they try that. How much they actually follow through is a whole ‘nother question. These are politicians we’re talking about.”
What would the minority do about it?
March 13, 2010, 9:47 pmAlexia says:
Heh! That’s why I come here, so I can steal opinions and sound lofty.
I’d like to know who would actually have standing to challenge it in court. Lofters?
March 13, 2010, 9:47 pmOrenWithAnE says:
Yup, that’s pretty much the strategy.
The real question is how long the Dems will let the GOP dilate before dropping the bomb. I’m going to bet 48 hours or so before they lose patience and shut it down.
March 13, 2010, 9:49 pmJohn says:
“Voters are going to be very angry if November rolls around and the Dems have not accomplished anything in 2 years.”
Well you know they could always (gasp) try to do something about the economy and the 10% unemployment problem. I think voters are going to really angry that in the middle of the worst recession in 70 years Democrats spent two years trying to pass a healthcare plan no one wants and does nothing about the immediate problem of the economy.
March 13, 2010, 9:50 pmAndrew says:
Nope. According to Speaker Pelosi:
March 13, 2010, 9:50 pmricky says:
The Constitutionality of this procedure is fairly irrelevant… nobody would even use that document for toilet paper these days. The more realistic charge is “shenanigans”, which this pretty clearly is. I doubt that anyone not already decided would actually care, but no one who is politically aware can deny that this is a “trick play”, a farce, a piece of political chicanery, a joke. Whether this is a final or merely incremental step into absolute despotism is inconsequential – what is clear is that we’ve gotten to the point where legalistic arguments trump moral and common-sense judgment. Perhaps we arrived at this point long ago, but either way it signals the exhaustion of our social capital and the rule of law. We no longer have impartial arbiters, merely partisans who seize upon technicalities to justify their points of view. The only difference between this and other civil wars is that we fight on an abstract legal battlefield, which never offers a clear winner, rather than spill the blood required for a real victory. It’s quite passive-aggressive.
March 13, 2010, 9:50 pmHarold says:
And another quote “. The Senate Bill is HR 3590. The “HR” is because it started in the House as the “Service Members Home Ownership Tax Act of 2009″.”
Service Members Home Ownership tax act, complete revision and overhaul of the United States health care system. Yeah, they have a lot in common. Any idiot can see that. I’m surprised I missed it.
This revenue raising bill did not originate in the house. Would you care to actually argue that it did? The house had zero input in its making. That would be absolutely zero, nada, none.
March 13, 2010, 9:50 pmmls says:
Ben makes a good point about the Gephardt rule, but I am not entirely convinced that it is the same thing. With the Gephardt rule, the House is only voting on one law, not two. The law is “bundled,” as it were, with a concurrent resolution that is not a law and has no binding force outside of Congress. One might object to that procedure too, but I am not sure that it is the same as voting on multiple bills at once.
If the House bundles multiple bills for a single vote, a Member would have to vote for or against all of them, without knowing which ones might ultimately become law. This is the same objection that Members raised in the line item veto case.
So I am not convinced this is “clearly constitutional.” I do agree, though, that challenging it outside of Congress would be a long shot.
March 13, 2010, 9:50 pmBob from Ohio says:
Looking at Clinton v. NYC at page 448 (next to last page of the majority), the court says that the Constitution requires 1. House must “approve” exact language 2. Senate must “approve” exact language and 3. signed by president.
So, “passed” in Article I, sect. 7 means “approved”. When the House passes the “Fix Bill” with the Slaughter Rule, I would say that it has “approved” the “Senate Health Care Bill” as most would understand that term. So, constitutional.
Also, as mentioned above Field v. Clark (cited in Clinton) says:
supports the conclusion that once the Speaker and VP sign it, they are conclusively saying that the bill has been passed. So, constitutional.
I think the bill is bad policy and, for the Democrats, bad politics but the remedy is an appeal to the electorate, not the Supreme Court.
March 13, 2010, 9:51 pmjrose says:
I think you are wrong. If you were correct, then there would be no need for the Slaughter Rule, which is desgined specifically to prevent the Senate bill from going to the President unless it is amended.
March 13, 2010, 9:54 pmSam says:
Here’s a twist, possibly even more irregular than the Slaughter Rule. But could this work?
The Senate pre-passes the negotiated changes in a different reconciliation bill (it must be a reconciliation bill, to go at 51 votes), with the changes triggered by the House passing the Senate bill: some language like this: “WHEN the House passes SB xyz of the 111th Congress, THEN the following amendments shall be applied to USC x.y.z…..”
Once the House passes the amending bill, they can pass the Senate’s version of the HC bill. The House no longer has to trust the Senate to introduce amendments through reconciliation on the main bill, and if the House (even yet) cannot pass the health care bill or the amending bill, then the Senate amending bill is a dead letter. And everything goes by a roll-call vote; presuming that the Stupak 11 are satisfied by the Senate amendments, they would be willing to vote yes on the amendments (first!) and there fore be safe from double-crossing.
Is there any reason that such meta-legislation would be illegal by Senate or House rules?
March 13, 2010, 9:55 pmmockmook says:
Please, this is the most rank, partisan, Un-Constitutional power grab ever seen in Congress.
March 13, 2010, 9:55 pmBenjamin Daniels says:
The odd thing about the Gephardt rule is that the House isn’t actually voting on a law at all, at any time in the process. It’s enacted as a result of the passage of the budget resolution, which has no legal force. So there’s never actually a vote on something that will become law.
Re: Andrew, Pelosi’s comments:
I’m not saying that it’s necessarily how they’ll do it, just arguing for the legality and procedural possibility. There are some convincing arguments out there against that point of view, including reporting from CQ and Politico on comments from the parliamentarian that it would be procedurally okay. In the end, how to do it is up to the leadership.
March 13, 2010, 9:58 pmOrenWithAnE says:
Harold, you did everything but answer my question.
Yes, reconcilation bills must reduce the budget. A conditional bill might not do anything and therefore might not reduce the budget and therefore cannot be passed in reconcilation.
March 13, 2010, 9:59 pmSG says:
The flip side of the coin is the Biden Bomb. They can sit Biden down in the Chair, and he can rule ‘all additional points of order and amendments are considered to be dilatory, and are hereby ruled out of order’. If they can prevent 49 Repubs plus 11 Dems from voting against THAT one, THEN the final vote occurs.
It would be highly ironic if that were to come to pass…
March 13, 2010, 10:01 pmEvan says:
Okay, how about if the conditional bill says, “(1) The $N appropriation for the Whatever Memorial Museum is canceled. (2) WHEN the House passes SB xyz of the 111th Congress, THEN the following amendments shall be applied to USC x.y.z…..”?
March 13, 2010, 10:14 pmSarcastro says:
This thread pleases me.
But the death threats and people’s revolution wankery bore me.
I demand more “I am just an ordinary joe but this is awful” posts!
I further demand more overwrought metaphors! Star Wars was good, Rape was pretty good, but I think you can top that!
And no points for Nazis.
March 13, 2010, 10:24 pmSDN says:
Steve, the Founders themselves provided the Second Amendment with precisely that sort of recall in mind.
March 13, 2010, 10:26 pmSarcastro says:
If healthcare passes, the revolution will be glorious! The founders hated health insurance reform, and loved violence to enforce only functionalist parliamentary procedures!
March 13, 2010, 10:32 pmresh says:
“Is the question justiciable?”
First, I don’t think the framers’ bicameralism imperative is constitutionally satiated by Slaughter’s 3-card monty. Not what they had in mind. Bicameralism consists of more than a legislative wink and a nod. Just a wild guess, but the court would likely say a vote, minimally, is needed to pass the smell test. The matter is clearly justiciable, in any case, under US v. Munoz-Flores.
March 13, 2010, 10:33 pmSarcastro says:
Hmmm. Better than Star Wars, but still worse than rape.
[Still not sure how this is somehow tyrannical or authoritarian.]
March 13, 2010, 10:39 pmAdam Sullivan says:
I recall a case recently where a state legislature had a long term practice of having an invocation that violated the establishment clause. I will try to find it but I have to use Findlaw. IIRC it was Indiana. Their rules had allowed the practice since the state was founded but the practice, though being longstanding, was not Constitutional. I know – not the HOR, but the point stands – tradition does not make for Constitutionality.
March 13, 2010, 10:43 pmPeteP says:
““And the minority is threatening holocaust if they try that. How much they actually follow through is a whole ‘nother question. These are politicians we’re talking about.”
What would the minority do about it? ”
Shut the Senate down. Any Senator, let alone any GROUP of Senators, can do it. it takes only two simple phrases :
“I object” – to any and all UC requests, motions, or anything else. This means they require 60 votes to take a bathroom break.
“I suggest the absence of a quorum, and I demand a recorded roll call” repeated about every 15 minutes or so. This can not be denied by the Chair, a roll call must be taken and recorded, and a quorum must be physically present.
Jrose – “I think you are wrong. If you were correct, then there would be no need for the Slaughter Rule, which is desgined specifically to prevent the Senate bill from going to the President unless it is amended.”
Wrong. The Slaughter House gambit ( that name is going to wreak HECK among you lawyer types, huh ? As opposed to the Slaughterhouse cases ? :-) ) is to assure House member that THEY pass the side-car, and do not pass the Senate bill without it, IN THAT HOUSE. It does not, and can not, bind the Senate, nor prevent the Senate bill, if approved in the House, from going to the W.H. BY ITSELF. You would merely have one bill that had ben approved by both houses ( signable ) and one that had only been approved by one house ( not signable yet ).
March 13, 2010, 10:46 pmMichael Lonie says:
“On the other hand, the average Democrat wants Congress to pass a bill, while the average Republican doesn’t want Congress to pass a bill. Moreover, the average Republican views the Democratic Congress and President as fundamentally illegitimate, while viewing himself as simply the average American, and thus will be loudly beating the drum that Obamacare was rammed down “our” throats by out-of-control socialists.”
And the average Republican will be correct. The majority of Americans oppose this power grab by the Federal government. Those who said in the comments, that Americans will not regard a law of this magnitude as legitimate if passed by the slimy, underhanded machination of deeming it to have been passed, are correct. The reason Nancy Pelosi wants to use this unsavory subterfuge of a tin-pot Machiavelli is because she cannot find a majority of votes for the Senate bill. The reason she can’t find them is because all too many of the Dem Reps are rightly fearful of the voters anger over this selfish, partisan power grab. So the Dems intend to shred the Cosntitution for real (unlike with Dubya’s case) in order to pass a restructuring of the American society and economy along the lines leftists dream of, despite the loudly proclaimed opposition of the majority of the people.
To the citizen this looks like the Dems ripping the Constitution apart and using the document to wipe up some noxious fluid. There will be consequences.
March 13, 2010, 10:49 pmAdam Sullivan says:
OK – but how does the minority get to exercise their right to have the yeas and nays recorded? In this case, it may be on the vote on the slaughter rule. But what about the general question that David Kopel has posed to the thread?
In the hypothetical example given, the minority is stripped of their right to have the yeas and nays on any specific question recorded.
March 13, 2010, 10:49 pmmikemcdaniel says:
The text of the Constitution you’ve presented is not clear on the issue, nor am I aware of any provision of the Constitution that defines a “vote” as it applies to or is wielded by members of Congress. Based only on this scant textual evidence, it would seem that the Congress could “pass” bills by means of pillow fights, duels, choosing champions, coin tosses, throwing brightly colored bits of paper into the air, or hot dog eating contests. Republicans might say that American tradition clearly envisions citizens voting for their representatives with the understanding that those representatives will vote to represent their interests and desires. However, Democrats might well say that it’s up to them to decide how to represent those interests and desires and voting is not the only constitutionally permissible means. Since they have the majority and the majority rules, they could merely “deem” anything to have passed at the word of the Speaker of the House as long as she (in this case) was reflecting the will of the majority in her royal deeming.
It would no doubt be enlightening to delve more deeply into the Federalist Papers and other related documents in an attempt to better understand the intentions of the Founders. Of course, if, like so many Dems, you have no respect whatever for the Founders or their intentions and the Constitution is merely an outmoded, yellowing document under glass to be discarded as modern, nuanced sensibilities see fit, such a search would surely be “deemed” irrelevant.
One would hope that the Supreme Court would uphold the ultimate principal of “one man, one vote,” applying it up the voting chain, but it would likely be a five/four decision at best.
As many of those responding have noted, those who would be our masters fail to understand, or in their insanely inflated understanding of their own grandeur, refuse to accept that Americans are not Europeans and that given sufficient provocation, will take seriously the Declaration of Independence and will rise up and abolish another monarchy, which will include the monarch and all his or her courtiers. The only question is when that level of provocation will be reached. Perhaps not even with this usurpation, but the Dems would surely extend this new found power to ruling by fiat in ways small and large. That just might do it.
March 13, 2010, 10:50 pmAtomic says:
Har! I wonder if Congressional health care plans include treatment for tar and feather removal.
March 13, 2010, 10:51 pmDisgusted, But Not Surprised | GunBlogs.org says:
[...] I think any American, no matter how they feel about health care, ought to be outraged by this tactic. Dave Kopel asks whether it’s even Constitutional. [...]
March 13, 2010, 11:00 pmBrett Bellmore says:
The problem here, it that this is supposed to function in combination with the rule that no business be conducted without a quorum. Whereas, in practice, voice votes are frequently a way of making sure that the absence of a quorum can’t be proven from a roll call. Voice votes have been conducted in the Senate with as few as three Senators present, on quite contraversial matters, such as calling a halt to the ’95 budget standoff. The courts simply refuse to enforce the quorum requirement, absent an official head count proving the quorum’s absence. Which holding a voice vote quite neatly prevents the existence of.
Of course there is: The House could originate a NEW bill which is the same as the Senate bill with those fixes incorporated into it, and send it off to the Senate, while ignoring the original Senate bill. The reason they’re not doing this is because they don’t have enough votes in the Senate anymore to end a filibuster. It’s questionable whether they could even pass the Senate bill again with a simple majority. But that’s not the House’s problem.
March 13, 2010, 11:00 pmAdam Sullivan says:
Last post on this –
Aren’t the provisions that make “deemed passed” conditional for the Senate a bit like escrow instructions?
March 13, 2010, 11:01 pmStephen Lathrop says:
Respectfully disagree. As any resident of Massachusetts ought to be able to suggest, the taxonomy of political misfeasance goes approximately like this:
1. Hanky-panky: clearly illegal conduct, typically kept hidden unless the cops come; ballot box stuffing.
2. Shenanigans: stuff that is at least arguably legal the first time it shows up, but probably ought to be illegal, and often gets made illegal subsequently; jamming your opponent’s phone banks on election day.
3. Hi-jinks: stuff that makes your jaw drop, but seems legal; the name’s the same game—in a two-man race you add a third straw candidate who has the same name as your opponent, splitting his votes.
4. Antics: Astonishing procedural stuff in the legislature; all controversial business is reserved until midnight on the last day of the session, and then presented by the speaker in two stacks, with an announcement, “These are the bills that are going to pass, (holds up one stack) these are the bill which are not going to pass, (holds up the other stack) all those in favor of the bills that are going to pass signify by saying “aye.” Opposed?” Gavel. “The ayes have it.”
The view from Massachusetts: what’s going on in Congress looks like antics.
March 13, 2010, 11:02 pmNick056 says:
I don’t think we can avoid the politics of it and call it the “Slaughter Solution.”
It would seem that “deeming” a bill to be passed is only sufficient if the Senate and President deem it sufficient. And if they do, any objections will be hard to sustain.
I do like Andrew’s theory that this represents an improper delegation, because the bills contradict each other in parts. But if the House passed the Senate bill, it was signed, and then the House passed a reconciliation bill, it seems that everyone still has the same choice: do we refuse to pass the reconciliation bill from the House and stick with what we have, or do we pass the reconciliation bill as well? The Senate and the President are free to do either, so I’m not sure how the House is not delegating this choice in scenario B, but sending forth an improprer contradiction in scenario A (whereby the House passes a reconciliation bill and stipulates that, with its passage, the Senate bill is deemed to have passed). Again, it grants the Senate and the President authority to not pass and not sign the reconciliation bill, respectively.
It seems that all this solution does, substantively, is put the actual reconcilation bill on the table like a fatty cut of beef for everyone to chop at. It assuages concerns in the House that the Senate bill will pass and the reconciliation bill will never take shape by ensuring that the reconciliation bill gets passed in the House if the Senate bill is passed.
The real difference is that it deprives members of the House an opportunity to vote separately on each bill — but House members are not clamoring for that. What they’re mostly demanding is that they they not be forced to vote on the Senate bill before the reconciliation bill is brought before them.
March 13, 2010, 11:04 pmSarcastro says:
eh. It had passion, but I found the form lacking. Maybe tie the Jedi-mind trick.
March 13, 2010, 11:08 pmTom Smikland says:
Very interesting comments. Lots of lawyers with lots of opinions. But the important thing is what does the law matter? We have the power to remake society the way we wish and give our children the gift of freedom, the right to be an artist or playwright or sculptor and NEVER have to worry about their health again. Once this is done, we can see that we are free from the decrepit 18th century piece of trash written by a bunch of slave owners.
March 13, 2010, 11:12 pmBrett Bellmore says:
But that’s NOT the House concern. The House concern is that, if the Senate bill is passed, the Senate will abort the reconciliation process, making the House complicit in the unamended Senate bill becoming law. The Slaughter rule does nothing to assuage THAT concern, it merely facilitates it.
The hope is simply that it confuses enough people to give some members plausible deniablity as to what they’ve done, when they face the voters in a few months.
March 13, 2010, 11:23 pmSarcastro says:
Welp, I’m just an ordinary American who happened to find his way into the discussion
This ordinary citizen speaks for all other normal just plain folks, so ignore me at your peril!
This here parliamentary business is clearly legalistic wrangling only lawyers could think it controversial. I, on the other hand, can use my ordinary folksiness skills to tell what the founders meant better than any ivory tower poindexter could.
Also, populism!
March 13, 2010, 11:27 pmJTHC75 says:
cbolt:
The House is signalling that it agrees to, will pass, did pass HR 3590. There is no delegation. What is present is a contingency.
The House would have a recorded vote, “We pass the bill on condition that it embodies these changes.”
I can see in the future the Congress addressing popular but bad legislation:
Congress has passed the bill, but only on the condition that the President agrees not to sign. If the President indicates his intention to sign, Congress takes it back.
Where in the constitution is “Senate must pass with 60 votes?” It’s not there.
You’re right, there is no such thing. Your no-nothingness must be coming out.
March 13, 2010, 11:34 pmSmack says:
After reading the comments, I think there is an assumption being made that is clouding analysis. Everyone assumes that president 0 will sign this bill into law no matter how it reaches his desk. While this is a valid assumption in this instance, usage of the “Slaughter Rule” would have serious consequences for separation of powers (something the Supremes take quite seriously) by allowing Congress to effectively strip the president of his veto power.
At play, from my understanding, is a nexus between the Presentment requirements of Section 7 and the inherent Congressional authority granted by Section 5. Section 5 allows “Each House [to] determine the Rules of its Proceedings…”; no mention is made of executive integration or oversight of such Rules. As such, each House has plenary authority over its own Rules. Whereas Section 7 requires that “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….” Now, what is properly presented to the president under the “Slaughter Rule”? The Senate bill being deemed passed by House Rule; the House Rule deeming the Senate bill passed; or both? Of the three possibilities, two present an immediate threat to the president’s veto power as the president lacks the inherent authority to veto any House rule over which the House is granted plenary power by the Constitution. However, even assuming the House Rule is not presented and only the Senate bill is given to the president two other problems arise. First, the president is required to return the bill with objections to the House wherein it originated. As was mentioned above the Senate bill originated in the House as a budget bill. As such, the president is required to return the bill to the House which deemed the Senate bill/version passed under the “Slaughter Rule”. This presents a problem wherein the executive would be infringing upon the power granted to the House to determine its own Rules and Procedures. Finally, assume the president vetoes a bill and the Senate secures the necessary two-thirds votes to over-ride but the House cannot muster the two-thirds for approval. Can the House then use the “Slaughter Rule” and deem the president’s veto over-ridden by a simple majority vote which is required for House rules? After all, the House merely voted on a Procedural Rule. If such is the case, isn’t the president’s veto power effectively destroyed?
As a final note, this “Slaughter Rule” worries from a legitimacy perspective more than from a Constitutional one. I think, if used, it will lead to political “tribalism” where there is a blood for blood mentality. What will prevent the Republicans from “deeming” Health Care repealed by a simple majority Rules and Procedure vote? The president’s veto? I think that has been addressed in my post already. This is the reason many of the arcane and onerous provisions were enacted by the House and the Senate following the Civil War. Prior to, the natural ebb and flow of political power was cause for great consternation among the political parties who were governing more out of opposition to their political predecessors than for the public good. The effect was a dangerous decent into tit for tat politics that, ultimately, led to a government that was not only unable to prevent the onset of the Civil War but actually hastened its occurrence.
March 13, 2010, 11:50 pmmls says:
The theory has to be that when the House votes on the budget resolution, it is also voting on the statutory debt bill. Otherwise, the constitutional authority for the Gephardt rule would be extremely questionable. I assume, for example, that the House could not constitutionally delegate to the Clerk or Speaker the authority to engross a bill that had not been specifically approved by the body (whether raising the debt level or doing anything else).
I read Drier’s comments as simply reflecting a truism. The decision on procedure, including with regard to any constitutional points of order, will be made by the majority of the House. This doesn’t mean that the majority’s decisions are necessarily constitutionally correct.
Bob is wrong in suggesting that Field v. Clark means that whatever procedures the House uses are constitutional, so long as the bill is properly engrossed. He is probably right that the remedy for the constitutional violations will be with the electorate, not with the courts.
March 14, 2010, 12:03 amHarold says:
I have no idea what you’re talking about or where this question was asked of me.
My point- revenue raising bills must be originated in the house, not the senate. Saying that the senate bill, referred to as “the senate bill” by senators, congressman, and commentators alike, originated in the house because it substituted for something else entirely is beyond mere legal fiction, it is a legal fantasy.
“Teacher, I had a paper written. But I substituted my paper with one written by someone else, with an entirely different thesis, but it’s my own work because I substituted it.” Would you buy that? If so, I’ve got a bridge to sell you in Brooklyn….
March 14, 2010, 12:12 amJ. Aldridge says:
In theory, but the Senate has longed worked out a loophole around this limitation. :-)
March 14, 2010, 12:21 amken b says:
Bob from Ohio makes the only good argument I have seen for this being constitutional. But I think he is reading into the case cited a distinction between pass and approve that just isn’t there. A rally of 435 chanting members cheering a bill on the steps of the capital indicate approval, a majority vote on a bill constitutes passage.
March 14, 2010, 12:23 amDemosophist says:
The whole purpose of such a rule is to commit the legislative body as a whole to a bill without committing individual members to a vote, in effect “shielding” them from scrutiny by their constituents. Voting for a rule that attempts to do this is, almost by definition, is more onerous than voting for the original bill, so the whole “trick” defeats its own purpose. As I’ve been saying for awhile now, every attempt by the House to make the situation more certain and safe for the members makes it less certain and less safe. There’s simply no way out of this conundrum. Whether the trick is constitutional isn’t relevant to the politics of the situation, as interesting as the question is in a legal sense.
March 14, 2010, 12:28 amG. May says:
It’s interesting how the majority of this thread has contained so much interesting discussion on either side of the original debate, yet the usual suspects seem to characterize its tenor as people issuing death threats and calls for revolution.
I’m sure these clowns are convinced of their own brilliance and expressed equal amounts of incredulity, outrage, and vapid sarcasm at the legions of “regular folks” who behaved similarly during the last administration. If only these paragons of civility would kindly STFU and quit displaying their chronic inability to contribute anything remotely meaningful to a thread, perhaps some of us “regular Joes” could get more out of this blog.
March 14, 2010, 12:54 amgregspolitics says:
I think most of the discussion here is based upon a misunderstanding of what would be happening with this “Slaughter Rule” on the vote. The Congress Daily article called this “a rule that would consider the Senate bill passed once the House approves a corrections bill that would make changes to the Senate version.”
March 14, 2010, 1:30 amTherefore, this proposed rule has nothing to do with the Senate bill being considered passed by the House only after the Senate does some additional act, nor does it mean that there would only be a vote on a rule deeming the bill passed without voting on the bill itself.
All House votes on legislation come with a Rule that provides a procedure and meaning for the votes regarding what amendments, if any, will be voted upon, providing for the opponents to offer a motion to recommit and providing for a vote on final passage. My understanding of how this Rule, if used, would work, is that the Rule would provide that the vote on final passage of the Senate bill in the House would be a vote to pass the Senate bill, if, and only if, the House subsequently passed the reconciliation bill. The House would first adopt this Rule and then there would be debate on the Senate bill itself, followed by a vote on a motion to recommit and a vote on passage of the Senate bill with ayes and nays. Thus, at the conclusion of those ayes and nays the Speaker would announce something like HR3950 as amended in the Senate is passed, contingent on passage of (bill number of reconciliation bill) and the motion to recommit is laid upon the table. Thereafter, there would be a vote on HR(budget reconciliation) and after it was passed on the ayes and nays, the Speaker would announce that HR(budget reconciliaton) is passed, that the contingency created by the Rule on HR3950 has been satisfied and HR3950 has been finally passed and the motion to recommit(budget reconcilation) is laid upon the table. Thus, HR3950 as amended by the Senate would be passed by the House on the vote of ayes and nays. Only after the reconciliation bill had passed the House would the Speaker affix her signature so that HR3950 as amended by the Senate would go to the President for signature. My understanding is that the Senate would then take up the House budget reconciliation measure after the President signs HR3950 as amended by the Senate, into law. In practice then, the Rule on passing HR3950 as amended would basically just instruct the Speaker not to sign HR3950 as amended by the Senate and passed by the House and submit it to the President until HR(budget reconciliation) had also passed the House. The whole purpose of this exercise is to enable House members to respond to 30-second ads in the fall accusing them of voting for the Cornhusker kickback, et al by saying that they did no such thing because their vote for passage of the Senate bill was contingent on passage of the additional bill removing those provisions.
Matt says:
I haven’t read much of this thread, but this “solution” has nothing to do with nondelegation.
If you can’t see that this is a Chadha violation, then you should go read the opinion.
March 14, 2010, 1:30 amMatt says:
“Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I…. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative in its character and effect.’” INS v. Chadha, 462 U.S. 919, 103 (1983).
When it comes to the law-making procedures, the Court tends to adopt a formalist approach. See, e.g., Bowsher v. Synar, Clinton v. New York, INS v. Chadha. (The arguable exception being Mistretta.)
In any event, the purpose of Bicameralism and Presentment is that they subject all federal statutory law-making power to procedural safeguards; these safeguards were intended to slow the pace of federal law-making.
I’d write more on the matter, since it’s so interesting, but I have Foreign Relations law to study! I recommend reading Professor Bradford Clark’s articles on procedural safeguards. For example, his paper, The Procedural Safeguards of Federalism, may not directly answer the question at hand, but you will certainly have a good sense of the constitutionality of the “Slaughter solution” after reading it! (P.S., Professor Clark is a formalist, and relies on the text, history, and structure of the Constitution for his arguments.)
March 14, 2010, 3:12 amMatt says:
gregspolitics,
I should have read your post before posting myself; thanks for the information.
I guess the issue is whether the House can place contingencies on passage — I think my answer is still no, but I’ll have to think about it a little bit more.
March 14, 2010, 3:46 amBill of Rights says:
Forgive me if someone brought this up:
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.
U.S. Constitution, Article 1, Sec. 5
Seems like, if one fifth desires, they would have
to vote on the bill, and not just the rule.
Jus’ sayin’
March 14, 2010, 4:00 amDon Meaker says:
Why not have an up or down vote on the Senate bill? Because it will fail. It will fail because representatives get to go before the voters every two years.
That is why the “deems” foolishness is unconstitutional. They may as well “deem” they have been reelected.
March 14, 2010, 7:25 amBrett Bellmore says:
Don’t give them ideas; There are probably some of them who’d argue, in all seriousness, that they could do exactly that under the Constitutional language that, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”
March 14, 2010, 7:44 amBenjamin Daniels says:
Going to handle a couple issues at a time here.
Re Adam Sullivan and state legislatures:
That doesn’t contradict my argument. State legislatures are not granted the constitutional authority to create their own internal rules with no exceptions. Congress, on the other hand, is. In Congress, a strict reading of the document means all is fair, whereas state legislatures are subject to federal laws and other constitutional clauses.
Re PeteP and obstructionism:
Objections to UC requests would eventually be overcome by the reconciliation time limit; quorum calls are regulated in frequency by the rule that states that some official “business” must transpire between calls. Republicans could drag it on for a long time, but once the clock is started, they can’t stop it.
Re Adam Sullivan and the yeas and nays:
1) Correct, there will certainly be a recorded vote on the Slaughter rule.
2) Incorrect. The votes would be recorded on the question of passing the rule, which is the only “question” that would ever technically come before the House. The rule would be valid, but it’s an extreme example and it would never be implemented.
Re Smack and the veto:
The bill that gets “deemed passed” is the one that can be presented to the President. And no, the House cannot use the Slaughter rule to overcome a veto, because the Constitution requires that all the votes be recorded in the case of an override attempt. And remember, even though the House only officially voted on a rule, that rule created a substantial piece of real legislation that functions just like any other. So there are no fundamental changes going on to the legislative process here.
Re mls and the Gephardt rule:
No, that is incorrect. The House never votes on the debt bill, ever, in any form, unless the Senate changes it (which has been known to happen). That is the point of the rule. The constitutional authority is found in the ability of the chambers to set their own rules and live by them.
Dreier’s statements reflect the fact that whatever the majority decides the rules of the House will be, so they are. By definition, that is constitutional.
Re Harold and substitute bills:
Sorry, but that’s the way it’s done. It technically fulfills the constitutional requirement, and that’s what counts. It happens all the time, especially since a strict reading would prevent the Senate from initiating just about anything otherwise (what bill doesn’t include revenue provisions?). It’s not a controversial move at all.
Re Demosophist and the “trick”:
The real trick is to do it in a single vote. Taking two votes, especially having to vote on the Senate version as a standalone, would be almost impossible to make happen. The House simply will not vote for the Senate bill without getting the fix package through at the same time.
Re gregspolitics and the rule:
No. There does not have to be a vote on the Senate bill at any time under the rule. “Deemed passed” is intended to obviate the need for a vote on it at all. The rule would state “when we pass the reconciliation fix, the original bill is deemed to have also passed the House.”
Re Matt on Chadha:
This is not de facto single-house legislation. Chadha does not apply.
Re Bill of Right and the yeas and nays:
Nope. Since the bill will never be posed as a “question” before the House, there is no legal authority to demand a vote. If one fifth would like a recorded vote on the “question,” they may have it on the motion to approve the rule or on the motion to pass the fix bill. But since the question on passage of the original bill will not be put to the House, a vote cannot be called.
Hope this helps.
March 14, 2010, 7:45 amKevin P. says:
Are you referring to former Senator Obama? Which promise has he contradicted?
March 14, 2010, 7:54 amSean says:
Chadha says that an act of a House is legislative in character when it instructs persons outside the House to do or not do something. Since this deeming language only instructs the Speaker of the House, under Chadha, it is a rule, not a law, and the House has constitutional authority to make a rule. You won’t find a Chadha violation, here.
March 14, 2010, 8:17 amDavid Frankel says:
Please see discussion transcript between Constitutional experts Arthur Fergenson and Mark Levin. Highlights:
“If this is done, this will create the greatest Constitutional crisis since the Civil War. It would be 100 times worse than Watergate.”
“It’s preposterous. It’s ludicrous. But it’s also dangerous. It’s dangerous because, first, …because [the U.S. Constitution's] Article I Section VII says every bill — and it capitalized “bill” — …it is common sense that the bill is the same item, it can’t be multiple bills, it can’t be mashups of bills. And, in fact, in 1986, Gene Gressman, no conservative, and one of the experts — the expert — on Supreme Court practice… was writing an article that was dealing with a less problematic attempt to get around this section of the Constitution…”
March 14, 2010, 8:23 amBenjamin Daniels says:
Turns out Republicans have been doing exactly this for ages anyway, including on their own “trillion-dollar bills.” Just FYI.
March 14, 2010, 8:25 amcboldt says:
– Points of Order — these can be raised in unlimited quantity, and the parliamentarian must rule ( ‘advise the Chair’, actually, not ‘rule’ ) on each one, then the Chair must either affirm or refute that advice by issuing a Ruling, which is binding unless 60 Senators vote to over-ride it. Such a vote can be called for each time. –
Where do you get that it takes 60 votes to reject the chair’s ruling? It takes a simple majority. This is the “nuclear option” ploy for surmounting the abuse of cloture in the context of judicial confirmation.
Senate operates on majority vote, unless the constitution or rules say otherwise (Riddick p.912)
Points of order may be submitted to the entire Senate for decision, the decision being made by a simple majority (Riddick pp987-996, Senate Rule XX)
Appeals to the body of Senate on chairs ruling on points of order are not debatable (no way to withhold consent to vote and force a cloture motion), and may be tabled (tabling also by a simple majority), which results in upholding the ruling from the chair.
– Amendments — this process is partially defined in the current year’s budget resolution ( which also states what issues can be brought under Reconciliation that year, health and education are on this years list, etc ). The Budget Resolution this year does NOT say that amendments must be germaine, so they need not be. Also, there is no limit placed on how many. –
I’ve seen this assertion before, and there is no support for it in any Senate rule or precedent. Reconciliation is time limited, so while technically there is no limit on the number of amendments (on reconciliation, or anything else for that matter), the clock ticks away without concern over precisely what amendment is under consideration.
March 14, 2010, 8:35 amJames says:
This is essentially correct but the parts I crossed out are superfluous. HR 3950 will be passed, subject to the rule and the reconciliation will then be passed.
If lightning struck and reconciliation did not then pass, a motion to take the motion to recommit HR3950 off the table would be voted on, if successful, then a vote to recommit would be taken. The Speaker does not enroll bills, while presiding in the chair.
March 14, 2010, 9:10 amAnother Sam says:
Could, in the future, a congress “deem” the electoral college have voted in such a way?
March 14, 2010, 9:21 amChris Den says:
The Slaughter Proposal (not the Slaughter Rule as some will name it) is unconstitutional. The constitution clearly states in Article I section 7 how this is done. Many of you are eagerly ignoring our Constitution once again in a desparate attempt to pass this bill. If it is done this way, this is government by fiat and we will cease to be a representative republic. I, and millions of other patriotic Americans, will not obey any aspect of this bill because it will not be a “law”. Simple as that.
March 14, 2010, 9:26 amToby says:
Some months ago, one of the conspirators initiated a thread asking “Why do people hate Lawyers”
I submit that this thread, and the defense of the slaughter procedure, is a full and complete answer.
March 14, 2010, 9:27 amSarcastro says:
The side I disagree with is making me hate them!
Anyone who has read Chadha and doesn’t agree with me is a partisan hack!
Sarcasm must be aimed at the thread, not individual silly commenters!
March 14, 2010, 9:30 amPeteP says:
b daniels – “Objections to UC requests would eventually be overcome by the reconciliation time limit; quorum calls are regulated in frequency by the rule that states that some official “business” must transpire between calls. Republicans could drag it on for a long time, but once the clock is started, they can’t stop it.”
OK, so in between each QC, Harry Reid asks for committees to meet, or whatever – the Republican objects. Now official business has transacted.
CBolt – “Where do you get that it takes 60 votes to reject the chair’s ruling? It takes a simple majority. This is the “nuclear option” ploy for surmounting the abuse of cloture in the context of judicial confirmation.”
No, I believe you are mixing apples and oranges. The ‘nuclear option’ as the term was used in the judicial nominations was to change the rules of filibuster / cloture. Very different critter. 60 votes to over-ride a parliamentary ruling of the chair during reconciliation has nothing to do with that, and is guided by other rules entirely.
http://www.cbpp.org/cms/?fa=view&id=155 states “However, the budget point of order is important in the Senate, where any legislation that exceeds a committee’s spending allocation — or cuts taxes below the level allowed in the budget resolution — is vulnerable to a budget point of order on the floor that requires 60 votes to waive.” which is at least closely related.
Also, at the same page “If legislation providing for new tax cuts or entitlement increases is not paid for, the “PAYGO” rule gives any senator the power to raise a point of order against the bill, which can only be waived by the vote of 60 senators.”
Also there ” If a point of order is raised under the Byrd rule, the offending provision is automatically stripped from the bill unless at least 60 senators vote to waive the rule.”
“Senate operates on majority vote, unless the constitution or rules say otherwise (Riddick p.912)
Points of order may be submitted to the entire Senate for decision, the decision being made by a simple majority (Riddick pp987-996, Senate Rule XX)”
See above special cases during reconciliation.
“– Amendments — this process is partially defined in the current year’s budget resolution ( which also states what issues can be brought under Reconciliation that year, health and education are on this years list, etc ). The Budget Resolution this year does NOT say that amendments must be germaine, so they need not be. Also, there is no limit placed on how many. –
I’ve seen this assertion before, and there is no support for it in any Senate rule or precedent. Reconciliation is time limited, so while technically there is no limit on the number of amendments (on reconciliation, or anything else for that matter), the clock ticks away without concern over precisely what amendment is under consideration.”
It’s in the Budget Resolution, which is in effect a part of ‘the rules of the Senate’.
As to time limit – sorry, you are incorrect. The 20 hour debate limit for reconciliation ( another Rule of the Senate set by the Budget Resolution ) does not apply to the submission of amendments, which is not in itself debate. Reading the amendment into the record is not debate. Therefore, neither is time-limited. The amendment is not debateable, and is subject to a 51 vote, not 60 ( no filibuster ), but the point is, you can eat up the time between now and next January if you wanted to, submitting, reading, and voting on amendments ( all without debate, which is not allowed ).
March 14, 2010, 9:48 amChris Den says:
Toby, I agree totally with your comment that this thread and the defense of the Slaughter Proposal is the reason why so many of us have a hard time with lawyers. If you are constantly ignoring the constitution, then why even have it and what is a rule if you don’t live by it? I guess rules are made to be broken and/or ignored.
March 14, 2010, 9:51 amcboldt says:
I found a CRS publication that expounds on the 1974 Budget act and related points of order, and you are correct that it takes 60 votes to waive most provisions in the budget act.
March 14, 2010, 10:06 amCRS 97-865 Points of Order in the Congressional Budget Process
I can’t recall a case where there was disagreement that a budget point of order was well taken. That is, usually the senate votes to waive the relevant provision of budget act, implying that a waiver is required (that the action to be taken does in fact run afoul of the 1974 Budget Act). I wonder how a dispute over the need for a waiver would be resolved.
This CRS piece also discusses nongermane amendments, and says they are prohibited in reconciliation, but the prohibition can be waived with a 3/5ths assent.
Also, Senate rules outside of the 1974 Budget Act provide for a limit on the number/type of amendments that can be co-pending, with the possibility for the majority leader to “fill the amendment tree,” thereby cutting off the ability to bring new amendments up for consideration.
cboldt says:
– The 20 hour debate limit for reconciliation ( another Rule of the Senate set by the Budget Resolution ) does not apply to the submission of amendments, which is not in itself debate. Reading the amendment into the record is not debate. –
March 14, 2010, 10:21 amI view the 20 hour time limit of reconciliation as analogous to the 30 hour post-cloture time period. Amendments can be offered post-cloture, but unless there is unanimous consent to the contrary, not at or beyond the 30 hour mark, when the vote is taken on the underlying matter.
As for cutting off the ability to offer amendments by filling the tree, the minority could wreak havoc with Senate precedent by enforcing the rule that a senator who makes an amendment, loses the floor.
mls says:
Ben- it would “help” if you didn’t misconstrue what I said and then pronounce it “incorrect.” One can argue that the House doesn’t actually vote on the statutory debt increase, or that it won’t actually vote on the Senate bill, but one can also argue that the House is effectively doing both by voting on another measure that expressly deems passage of that measure to be passage of the underlying bill. My point was that one has to embrace the latter argument in order to defend the legitimacy of the procedure, unless one wants to make the case that the House, by rule, could deem passed bills that are as yet unwritten or undefined. So, for example, the House could adopt a rule that says any bill approved by the Speaker will be deemed to be passed.
It sounds like you would say that the House could adopt such a rule, and that the mere fact that the House adopts the rule would make it constitutional. That is incorrect, at least in the view of the Supreme Court in U.S. v. Ballin, where the Court stated that there were constitutional limits on the rulemaking power. The questions of exactly where the limits are, and to what extent the Court would enforce them, remain open. It may be your opinion that the House can do anything it wants, but your assertion to that effect is not the same thing as identifying constitutional text or authority that settles the matter.
I assume that you view as ridiculous the many arguments that have been made against the constitutionality of the filibuster over the last year. Given the historical pedigree of the filibuster and the difficulty of identifying a constitutional rule or principle that it violates without bringing down the entire structure of congressional rulemaking, I agree that those arguments are extremely weak. Yet few constitutional scholars would pronounce this question absolutely settled. It is therefore hubristic to pronounce an absolute judgment on a congressional procedure which appears to be very unusual, if not completely novel, and which isn’t even precisely defined at this moment.
March 14, 2010, 10:43 amShelbyC says:
Congress can deem a bill to have passed all day long. That doesn’t mean anybody else should deem it to have passed.
March 14, 2010, 10:54 amSun Tzu's Nephew says:
Or Archduke Reid and/or ArchDuchess Pelossi can ‘deem’ any damned bill they want
March 14, 2010, 11:05 amBenjamin Daniels says:
mls:
“My point was that one has to embrace the latter argument in order to defend the legitimacy of the procedure.”
This is the part of your agreement I disagree with. The vote on the rule is not technically a vote on the legislation, even though it is, de facto. And I don’t believe that it has to be technically true in order for the vote to be construed as legitimate. The House can set any rules it likes for the passage of bills, as long as those are agreed to by its members. Hence the Gephardt rule creates law without a vote on it; similarly the Slaughter rule could do so.
At issue in Ballin was the extent of the changes in the *rules about making rules* that a chamber can effect. Since that procedure is enshrined in the Constitution – “Each House may determine the Rules of its Proceedings” – along with the principle of majority rule, it is a legitimate interpretation of the Court that a rule about making rules could contradict the Constitutional provision. This is a special case of chamber rules that does not apply outside of that domain.
For the same reason, you are correct, I don’t believe there is a a constitutional argument against the filibuster for exactly that reason – or even against the heightened filibuster requirement for rules changes *in spite of* Ballin.
March 14, 2010, 11:12 amPeteP says:
cboldt – thanks for the link to the PDF. Interesting. I’m at a point in this whole process ( watching the HCR events and plots ), that there is so much conflicting information on everything ( content and proces ), so many tricks that can be pulled, that I think ‘the rules’, if they matter at all, are quite near to being totally opaque, and maleable by how far Pelosi and Reid are willing to bend / ignore / break them. I guess we’ll find out soon enough ( or later ).
As to ‘filling the tree’ – the Majority Leader can not do that during reconciliation, I think, which functions under different rules than a regular floor bill / vote in that regard.
“I view the 20 hour time limit of reconciliation as analogous to the 30 hour post-cloture time period. ” I don’t believe it is.
March 14, 2010, 11:13 amMike says:
The Constitution is quite clear that as long as 1/5th of the House of Representatives request that the yays and nays are recorded for a bill, that bill can not be passed unless those votes are recorded. Thus as long as the Republicans make that request, no rule can deem the bill passed and still satisfy the Constitution.
March 14, 2010, 11:16 amChris Den says:
Mike, Love your point about the 1/5th of the House request that the yays and nays be recorded for the bill. Bottom line – Nancy doesn’t have the votes or she wouldn’t be slamming the Constitution this way.
March 14, 2010, 11:25 amM Shaw says:
If the house can deem a bill passed, would it not be able to deem that they have overridden a veto with only 50% plus one vote?
March 14, 2010, 11:36 amcboldt says:
– I don’t believe [the 20 hour time limit of reconciliation] is [analogous to the 30 hour post-cloture time period]. –
Granted, the language in Senate Rule XXII is not the same as the language in the Budget Act, but upon reading the Budget Act, it’s quite clear that the time limits are meant to be time limits. If they are construed as not counting time not literally “in debate,” then the “end point” becomes indefinite.
See 2 USC 17a – Congressional Budget and Fiscal Operations, where several time-limited procedures are laid out.
Sec. 636(b) Debate [after report of Committee] in the Senate on any concurrent resolution on the budget, and all amendments thereto and debatable motions and appeals in connection therewith
March 14, 2010, 11:44 amSec. 636(c) Action on conference reports in Senate
Sec. 641(d) Limitation on amendments to reconciliation bills and resolutions
Sec. 641(e) Time limit for Senate “debate”
Originalist says:
This from a dissenting opinion from STEVENS in Raines v. Byrd 521 U.S. 811 (1997) concerning presidential line-item vetoes. Note the bold parts. I feel very confident that Slaughter would be struck down 9-0:
“Article I, § 7, of the Constitution provides that every Senator and every Representative has the power to vote on “Every Bill … before it become a law” either as a result of its having been signed by the President or as a result of its “Reconsideration” in the light of the President’s “Objections.” FN1 In contrast,**2326 the Line Item Veto Act establishes a mechanism by which bills passed by both Houses of Congress will eventually produce laws that have not passed either House of Congress and that have not been voted on by any Senator or Representative.
FN1. The full text of the relevant paragraph of § 7 provides:
“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.” U.S. Const., Art. I, § 7.
Assuming for the moment that this procedure is constitutionally permissible, and that the President will from time to time exercise the power to cancel portions of a just-enacted law, it follows that the statute deprives every Senator and every Representative of the right to vote for or against measures that may become law. The appellees cast their challenge to the constitutionality of the Act in a slightly different way. Their complaint asserted that the Act “alter[s] the legal and practical effect of all votes they may cast *837 on bills containing such separately vetoable items” and “divest[s] the[m] of their constitutional role in the repeal of legislation.” Complaint ¶ 14. These two claimed injuries are at base the same as the injury on which I rest my analysis. The reason the complaint frames the issues in the way that it does is related to the Act’s technical operation. Under the Act, the President would receive and sign a bill exactly as it passed both Houses, and would exercise his partial veto power only after the law had been enacted. See 2 U.S.C. § 691(a) (1994 ed., Supp. II). The appellees thus articulated their claim as a combination of the diminished effect of their initial vote and the circumvention of their right to participate in the subsequent repeal. Whether one looks at the claim from this perspective, or as a simple denial of their right to vote on the precise text that will ultimately become law, the basic nature of the injury caused by the Act is the same.
In my judgment, the deprivation of this right-essential to the legislator’s office-constitutes a sufficient injury to provide every Member of Congress with standing to challenge the constitutionality of the statute. If the dilution of an individual voter’s power to elect representatives provides that voter with standing-as it surely does, see, e.g., Baker v. Carr, 369 U.S. 186, 204-208, 82 S.Ct. 691, 703-705, 7 L.Ed.2d 663 (1962)-the deprivation of the right possessed by each Senator and Representative to vote for or against the precise text of any bill before it becomes law must also be a sufficient injury to create Article III standing for them…”
March 14, 2010, 11:58 amBenjamin Daniels says:
Mike, Chris Den: That’s not what it says at all. The actual text is: “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.”
It does not say “on any *bill*”. It says “on any *question*”. The adoption of the rule in this case would be the question; there is no requirement to enumerate the votes for the bill.
M Shaw: The veto override must be done by full recorded vote, because of the constitutional requirement 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 this would not work.
Originalist: That is a dissenting opinion, not the precedent of the Court. While it certainly holds some weight, tradition and precedent have upheld the opposite view, which supports the Gephardt and Slaughter rules.
March 14, 2010, 12:19 pmNotalawyer says:
If Pelosi includes the college loan crap in the bill she intends to pass, isn’t that enough of a change to require that the entire thing go back throug the process?
March 14, 2010, 12:19 pmOren__ says:
Eventually, the chair will rule all such further requests out of order.
Why would they bother, when the House is explicitly empowered to judge the results of the electoral college?
I like the way you think cboltd! This would be brilliant!
Except for the Courts, the IRS and (perhaps most critically), the Federal Marshals.
March 14, 2010, 12:37 pmmoot point says:
If the “Slaughter Solution” is allowed, then this is a damning indictment against our government. It might very well be time to dissolve it.
March 14, 2010, 12:41 pmAndrew says:
I’d like to mention another constitutional provision:
If the House takes a “vote” for both the Reconciliation Bill and the Health Care Bill at the same time, then this “vote” cannot take effect without the President’s approval. Thus, even if the President approves the Health Care Bill, the Health Care Bill cannot take effect unless the President also approves the Reconciliation Bill that the House voted on simultaneously. And, the President cannot approve the Reconciliation Bill unless the Senate passes it verbatim. Conclusion: if the House takes a simultaneous vote on the Health Care Bill and the Reconciliation Bill, then the Health Care Bill cannot take effect unless the Senate approves the Reconciliation Bill verbatim.
March 14, 2010, 12:45 pmOriginalist says:
“Originalist: That is a dissenting opinion, not the precedent of the Court. While it certainly holds some weight, tradition and precedent have upheld the opposite view, which supports the Gephardt and Slaughter rules.”
You are missing the point. Look at WHO the dissent is! And if you read the whole case, this analysis is not at odds with the majority. He goes through it to support his overall point of disagreement that members of Congress had standing to sue in that case. And if you read the majority opinion, they seem to agree with Steven’s premise anyway, stating things like:
“In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process….”
I am firmly confident that Stevens fellow justices will agree with his analysis on Article I, section 7, clause 2.
March 14, 2010, 12:56 pmDr. Deano says:
I’m not an attorney. After following the “health care” effort diligently and reading through these comments and others regarding the Slaughter solution, I find my faith in the processes that I thought were designed to control Congress and the President for the good of the people shaken thoroughly.
It now seems to me that a Congress and presidential administration controlled by nefarious enough persons can basically do anything they want to by devising some sort of arcane rule or process.
The matter raises a lot of questions well beyond just this health care bill. I was always taught to look beyond the current matter and ask: “If this, then what next?”.
Indeed, if Obama, Reid and Pelosi use what can only be called subterfuge to pass the health care bill, what will they be emboldened to do next? Given what we are witnessing right now, will there be any limits (beyond the next election and that is becoming less certain to me every hour) on what they can do?
Call me paranoid, but our government and its ability to control our lives without constraints is growing.
March 14, 2010, 1:19 pmgregspolitics says:
Having been corrected in my interpretation by Benjamin Daniels and then doing some additional research, I understand that this would be a “self-executing rule” which has been used in the past by Republicans too(see http://www.rules.house.gov/Archives/98-710.pdf
March 14, 2010, 1:34 pmor google self-executing rule). The rule would provide that upon passage of the house budget reconciliation act (HBRA), HR3950 as amended by the Senate would be automatically passed without a further separate vote. I believe this would entail three recorded votes on the ayes and nays. First, to approve the rule. Second, a vote on a motion to recommit which the GOP could make a motion to recommit with instructions to not pass HR3950 as amended by the Senate. Third, a vote on final passage of HBRA, at the end of which the Speaker would announce HBRA is passed, HR3950 is passed and the motion to recommit is laid upon the table. These would all be reported as votes to pass health care reform and would be so understood so Dems would be clearly and publicly making clear their support of health care reform. While this may in part be intended to answer political charges of support for the Cornhusker kickback, et al, the members are still taking a chance that the Senate will pass the separate HBRA since otherwise they will have voted to let HR3950 as amended by the Sentate, cornhusker and all, to become law. Thus, I think that this is being done for institutional more than political reasons. Some House Dems are just so mad at the Senate that they do not want to have to vote on the Senate bill on the Senate’s terms but want to vote on it on the House’s terms by means of the self-executing rule and the leadership (which doesnt like the Senate either) is happy to accomodate them. Ultimately, this is all just silliness between the House and Senate but the House is clearly passing HR3950 as amended in the Senate in accordance with its rules and in accordance with the Constitution. Each of the 3 questions-rule, motion to recommit, final passage, will be a question with recorded votes under Article I, Section 5, clause 3. HR3950 as amended by the Senate will be passed by the House in accordance with its rules per Article I, Section 5, clause 2 and HR3950 as amended by the Senate and passed by the House will, as a passed Bill, be presented to the president for signature under Article I, section 7, clause 2. Section 3 of Article I, section 7 is not applicable as none of the 3 votes of the House taken pursuant to the self-executing rule themselves require concurrence of the Senate. Rather, both Houses will have passed the Health Care Reform bill and the Senate, after that bill is signed by the president, will vote on HBRA as passed by the House, which, when approved by the Senate will be presented to the president as a separate bill or resolution requiring concurrence of both houses.
Bowman says:
When the Republicans take back the House, can they adopt a rule which “deems” that whichever Democrats who are still in office have tendered their resignations even if none of them have actually resigned?
March 14, 2010, 1:47 pmDavid M. Nieporent says:
Your argument is purely conclusory. The fact that the Constitution grants the Congress the power to set its own rules does not inherently mean that this power is unreviewable. The courts may declare it to be nonjusticiable, but they may not. U.S. v. Nixon hints at that, but it doesn’t demand it. There are judicially-managable standards for whether a bill has been voted on.
March 14, 2010, 1:52 pmAndrew says:
I disagree. That would seem to read the word “vote” out of subsection 3, since the House could always structure a vote in this slippery way. The vote of the House, taken pursuant to the self-executing rule, that simultaneously passes the two bills, would essentially require concurrence of both houses, because the two bills require concurrence of both houses.
March 14, 2010, 1:52 pmLN says:
People are not as dumb as liberals think they are… Have fun getting the 20% cretin vote.
Liberals aren’t people? Liberals think “people” are dumb but the real cretins are liberals? Thanks for the objective analysis John. 59 out of 100 Senators, 255 of 435 Representatives, and the Presidency — why didn’t real people get a say before these radical socialists assumed power?
March 14, 2010, 2:14 pmmls says:
Well, this has all been very interesting. A couple of concluding (for me) observations. First, it seems to me that voting on a self-executing rule per se, or on the budget resolution in accordance with the Gephardt rule, is probably constitutional or, if unconstitutional, only technically so in the “no harm no foul” way of UCs and the like. In these situations, the House is “de facto” (to use the term that Ben appears to prefer to other words that mean the same thing) voting on final passage of a specific bill and it seems that the difference between that and a formal vote on final passage is constitutionally de minimis. At least that is my off the cuff reaction, having not thought about it deeply.
On the other hand, the Slaughter rule appears to raise another issue of constitutional dimension, which is the fact that Members are being required to vote simultaneously on two separate bills. (To the extent that this has happened with previous self-executing rules, they would also be questionable.) Thus, if a Member supports Bill A and opposes Bill B, she has no option to vote to vote on the bills separately. This, of course, would also be true if the bills were combined in a single bill, but the difference is that her yea vote on the Slaughter Rule could lead to only Bill B becoming law.
It seems to me that the problem here is closely analogous, though perhaps not identical, to the issue discussed by the Court in the line item veto cases. And I would observe that although Stevens dissented in Raines v. Byrd, that was on the issue of standing, and the Court later struck down the line item veto in Clinton v. NY.
Maybe now Professor Kopel will weigh in with his views.
March 14, 2010, 2:24 pmgregspolitics says:
To Andrew says:
March 14, 2010, 2:27 pmthe relevant votes under clause 3 are only those votes requiring concurrence of the Senate. The procedural vote on the rule and the vote on the motion to recommit do not of themselves require Senate concurrence. Insofar as the procedural vote passes the Senate bill upon passage of the House reconciliation bill that is the House’s concurrence in the bill already passed by the senate which will be presented to the president under clause 2. The final reconciliation vote does not require Senate concurrence as a vote to pass the Senate bill as the Senate has already passed the bill and the vote itself is not a vote on passing the Senate bill. It does, of course, require Senate concurrence as a bill or resolution to pass the separate reconciliation act but that is separate from passage of the health care reform bill itself. In effect, the first vote on the House rule is a vote on substance, not just process, because a vote to pass the rule is a vote to pass the Senate bill so long as the reconciliation bill is passed by the House.
Chris Den says:
The way I look at all this is not through the colored spectacles of legal jargon. I am not a lawyer. All I know is that this is gov’t by fiat and a gross distortion of ethical governance. Many in this country are unaware of the nefarious nature of those who would undermine the American legislative branch. The Democrats may be victorious in these underhanded schemes, but they will pay a very dear price. Their true colors are now, and forever will be, out in the open for all to see.
March 14, 2010, 2:28 pmOriginalist says:
“And I would observe that although Stevens dissented in Raines v. Byrd, that was on the issue of standing, and the Court later struck down the line item veto in Clinton v. NY.”
Exactly. And I just don’t see how anyone will disagree with his analysis. Either way an “injured party” bringing suit can count on the most liberal of all liberal justices to go his way!
March 14, 2010, 2:30 pmMVC2K says:
If my representative follows Pelosi down this path, it would seem that a compelling case could be made that he is substantially incompetent and can be removed from office under § 24.2-233
March 14, 2010, 2:32 pmcboldt says:
– and HR3950 as amended by the Senate and passed by the House will, as a passed Bill, be presented to the president for signature –
My understanding is that the House intends to prevent presentment of HR3950 as it now stands before the House. And it appears to me that the reconciliation process works inter-camerally, to cause changes to bills before they are enrolled.
2 USC 641, introduction to subsection (c)
March 14, 2010, 2:33 pmAndrew says:
Gregspolitics, the third vote in your scenario, on final passage of the Reconciliation Bill, would have the effect of also passing HR3950. That third vote essentially requires concurrence of both houses, because it contains a proposition of legislation.
Just as a concurrent resolution is not sent to the President for approval unless it contains a proposition of legislation,[1] so too a vote that contains one or more propositions of legislation also has to be sent to the President. In this instance, the President cannot approve the vote without approving all of its propositions of legislation.
March 14, 2010, 2:41 pmMurgatroyd says:
Look beyond the issue of whether Congress can “deem” a bill to have passed without a vote. If eight more Democrats had been elected to the Senate in 2008, could the senators elect to simply expel any Republicans who dared vote against the majority?
Is this scenario any less plausible that the one currently unfolding? Congress is explicitly empowered by the Constitution to do this.
March 14, 2010, 2:41 pmGreg says:
Jefferson feared we would someday come to this, an unchecked majority. Ultimately no constitution can protect against such a confluence, only as Jefferson prayed, the goodness of our leaders, that cooler heads will prevail.
I think when Congress passed the current rules they were struggling with the unchecked majority question, essentially requiring super majorities in some instances and pure majorities in others.
Changing the rules is one area where there should be a requirement for a super majority.
March 14, 2010, 2:51 pmAlexia says:
I too find it very disheartening that the primary purpose of being a Constitutional lawyer is to examine and create methods to circumvent what the unwashed masses naively assume to be original intent.
March 14, 2010, 3:12 pmJohnny Longtorso says:
They’re going to ‘pass’ it by deeming it passed. This will allow them to say they voted for ‘conservative’ limitations on ObamaCare that Obama will veto (if the Senate passes it for the same reason). Should the Supreme Court rule against them, then they can tell their base they tried, use the court as an external enemy for blame, and keep the base motivated. If the SC rules for them (or refuses to rule), they get want they want and get to claim to the voters outside the base what they passed wasn’t what any individual congresscritter wanted.
Win-win.
March 14, 2010, 3:19 pmPeteP says:
Cboldt – “Granted, the language in Senate Rule XXII is not the same as the language in the Budget Act, but upon reading the Budget Act, it’s quite clear that the time limits are meant to be time limits. If they are construed as not counting time not literally “in debate,” then the “end point” becomes indefinite.”
And thus the issue is open for debate -). ‘What do the rules REALLY say ?’. If they were clear on points like this, and many others, then there would be none of this current discussion about it.
Ultimately, IMO, it comes down to this: How far will side ( A ) go, and how far will side ( B ) go, to stick to / twist / bend / break / interpret the ‘Rules’ in their favor ?
IMO, the biggest unknowns at this time are A ) The Biden Bomb. Will the Dems actually go so far as to have the President of the Senate sit in the chair and ‘rule’ in their favor on every question ? Then you can take your ‘rule book’ and toss it. All bets are off. B ) Will the Repubs actually carry through on their threats of retaliation ? Shut down the Senate for the next 9 months ? And does that really matter ? Only if it scares off the Dems, mainly in the House, before it’s too late. Because, ultimately, if the Senate bill gets passed, Obama will sign it, with no reconciliations at all if needed.
The above of course assumes that the pelosi / Obama goon squad can break enough arms, promise enough future billions, to get past the House vote next weekend.
This is hardball national ‘chicken’, plain and simple. Who has Mel Gibson at the steering wheel ? I guess we’ll all find out in the next month or two.
( If I may divert into policy rather than procedure for a moment )The Dem leadership have a ( IMO ungodly and insane ) infatuation with this whole ‘Continue the legacy of FDR, make ObamaCare part of that legacy’ concept, this pseudo-religious fervor which is scarily reminiscent of how they elected Obama in the first place, that ‘ObamaCare is their Great Legacy’.
“Debate in the Senate on any reconciliation bill reported under subsection (b) of this section, and all amendments thereto and debatable motions and appeals in connection therewith, shall be limited to not more than 20 hours”
Define ‘debate’. Is asking a question ‘debate’ ? No. Is ‘making a suggestion’ ‘debate’ ? No. Is voting on the answer/response ‘debate’ ? No. Therefore, the offering of amendments is not ‘debate’, nor is voting on them.
BTW – as re ‘filling the tree’ – as I understand it, there are no 2nd degree amendments under reconciliation, there is no ‘Tree’, and the majority leader has no control over what is offered. The President OTS ( Biden Bomb ) can, I would assume, say ‘that is out of order, it is dilatroy’ and try to shut it down that way.
“the minority could wreak havoc with Senate precedent by enforcing the rule that a senator who makes an amendment, loses the floor.” Even if so, nonfunctional. Reid does not need to offer any amendments to a set of back-room pay-offs he already blessed.
PS – I enjoy your input – I get the impression you are familiar with the issues.
PPS – Dog help us all, we pay them for this s**t.
March 14, 2010, 3:30 pmBowman says:
This is an excellent point which I myself have made on occasion. Our system of government at its core depends not only upon law but upon our chosen representatives to be ethical.
A few days after 9-11, the president was given the sole authority to determine who was responsible and shortly after in the Patriot Act was arguably given the power to hold those people without rights as enemy combatants. At the extremes of unethical behavior, the president was legally entitled to arrest congress, the senate, the supreme court, the state legislatures, the governors, and whoever protested against what the president was doing.
Something being legal, or in this case, constitutional is not the sole determining factor over whether something should be done.
This kind of loophole, whether having been done in the past or whether ultimately being upheld after challenge is undesirable “bad” law. Its too easily abused and too easy for congressmen to keep pushing the boundaries in an effort to escape responsibility for making decisions which he is supposed to be obligated to make.
March 14, 2010, 3:32 pmrarango says:
I had set it as a personal goal to wade thru Talmudic discussions on the Torah.–fortunately, this thread releases me from that task.
March 14, 2010, 3:39 pmSarcastro says:
Whatever, rarango. Real Americans know how obviously evil this is, and they are so angry they’re posting on the internets about it!
March 14, 2010, 4:09 pmcboldt says:
– Dog help us all, we pay them for this s**t –
March 14, 2010, 4:34 pmHeh. Pretty much sums up my outlook as well. I consider Congress to be a den of corruption. I think use of reconciliation to pass health care is an abuse, but add it to a long list of dysfunctional abuses these clowns undertake on a regular basis.
I think the shunning that Ben Nelson took was well deserved. One of these days, the public is going to wake up, “angry,” and perhaps it will realize that Congress has been the central force in shaping “what is.”
Andrew says:
cboldt, what do you think of the notion that a “vote” to explicitly approve the Reconciliation Bill while implicitly approving HR3950 is a “vote” within the meaning of the following provision?
March 14, 2010, 4:58 pmcboldt says:
– what do you think of the notion that a “vote” to explicitly approve the Reconciliation Bill while implicitly approving HR3950 is a “vote” within the meaning of [Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary ...] –
March 14, 2010, 5:07 pmThat paragraph stands separately from the one that describes how a Bill becomes law. At this moment, I don’t know what distinction the founders had in mind, as between ” Every Bill which shall have passed the House of Representatives and the Senate” and ” Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary”.
pc says:
It amazes me how many people have discovered such a blatantly unconstitutional procedure, years after Republicans repeatedly used it.
March 14, 2010, 5:11 pmJR says:
This is without a doubt the scariest thread I’ve ever seen on this site, the more so because of Kopel’s silence in the face of these lunatics. It took less than two hours for the first threat of violence to appear. Not a promise to push for a court challenge, or for the electoral defeat of representatives, or to amend the Constitution to explicitly forbid this action, but the murder of elected officials and the overthrow of the US Government.
When it comes to these threads, especially when you specifically solicit comments, qui tacit consentire videtur is not an unreasonable presumption. For the love of God, Dave, speak the hell up and denounce these psychopaths.
March 14, 2010, 5:12 pmNot My Leg says:
Without having any cites to back this up (because nobody will read something this far down anyway), I don’t think there’s a problem.
In order to not violate the bicameral presentation issue you must comply with I,7 – “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…” The idea presented here, of deeming a bill to have passed the house, does not violate this clause. The bill has passed the House of Representatives (by being deemed to have passed) and it has passed the Senate (by vote), and then been presented to the United States.
The obvious objection is that the bill has not “passed” the House of Representatives, it has only been deemed to have passed, which is not the same. The constitution does not, by its terms, impose any specific definition on what passage means only that passage is necessary. Under I,5 “[e]ach House may determine the Rules of its Proceedings.” If the House Rules state that a bill is passed when the house deems it to be passed, I don’t see what is wrong with that. You can challenge the House for not complying with constitutional requirements, e.g., avoiding bicameral passage, but the House has authority to determine its rules, including its rule on passing bills.
This language “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” doesn’t affect the situation, because this prescribes rules for reconsideration in the case of veto, which is a constitutional procedure. Arguably, the fact that the drafters clearly prescribed procedures for reconsideration, while not discussing procedures for passage, indicates that they did not intend to restrict procedure for passage, but rather to leave it up to the Rules of the House.
Finally “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” does not apply to this situation. Although it refers to votes, it is discussing Orders, Resolutions, or Votes which are not Bills. Bills are discussed in the previous section.
March 14, 2010, 5:32 pmAndrew says:
The distinction the founders had in mind, as between ”Every Bill which shall have passed the House of Representatives and the Senate” and ”Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary” was so that the latter language would be broad enough to prevent evasions of the former language by Congress.
See <A HREF="http://books.google.com/books?id=-_8N3UeXeesC&lpg=PA92&dq=madison%20%22Every%20order%2C%20resolution%2C%20or%20vote%20to%20which%20the%20concurrence%20of%20the%20Senate%22&lr=&pg=PA92#v=onepage&q=madison%20%22Every%20order,%20resolution,%20or%20vote%20to%20which%20the%20concurrence%20of%20the%20Senate%22&f=false"“>here.
March 14, 2010, 5:36 pmNot My Leg says:
I disagree. This does not speak to what counts as passage, it only allows 1/5 to require entering the yays and nays on any question. A vote would have to be held on whatever ‘deems’ the bill to have passed, and the votes could be recorded, but that would not determine whether or not something had passed the house.
March 14, 2010, 5:37 pmmikemcdaniel says:
Dear JR:
Sorry, but I’m not seeing the explicit threats of violence you decry in this thread. The mere fact of more than 200 posts calmly discussing the constitutional issues would seem to argue just the opposite.
Americans will indeed exhaust every reasonable non-violent means of resolving unconscionable usurpations of the Constitution long before they turn to revolution. However, no wanna-be despot should make the mistake of assuming that Americans will simply lie down and allow them to destroy democracy. Let’s not forget that even Humbert Humphrey observed that despotism seems remote in contemporary America, but it is always possible.
There are simply some lines that no sane man crosses, and some Dems are coming close to crossing those lines. If warning them by reminding them of American history and of the character of Americans prevents unconstitutional usurpations, we are all the better for it, and violence, which no one is suggesting is imminent, may be avoided.
March 14, 2010, 5:38 pmAndrew says:
That link got messed up. Here it is:
http://books.google.com/books?id=-_8N3UeXeesC&lpg=PA92&dq=madison%20%22Every%20order%2C%20resolution%2C%20or%20vote%20to%20which%20the%20concurrence%20of%20the%20Senate%22&lr=&pg=PA92#v=onepage&q=madison%20%22Every%20order,%20resolution,%20or%20vote%20to%20which%20the%20concurrence%20of%20the%20Senate%22&f=false
March 14, 2010, 5:44 pmpc says:
Which piques my curiosity. Were any of these stalwart defenders of parliamentary procedure threatening physical violence when the Republicans were using this same procedure in the past?
March 14, 2010, 5:56 pmG says:
The Congress shall have Power To … make all Laws which shall be necessary and proper…
But not the power to deem them made? Don’t we have another branch for that?
March 14, 2010, 6:18 pmSarcastro says:
No one’s threatening violence, I’m just saying that if Congress doesn’t behave as I think they should, there will be violence.
March 14, 2010, 6:27 pmStephen Lathrop says:
Am I missing something here, or couldn’t we get past all this nonsense by just getting rid of the damned filibuster rule in the Senate—which Republicans are sure to do anyway as soon as Democrats start using it in the style the Republicans have?
There is a larger question behind a lot of this malarky, however. Since the Clinton impeachment there have been multiple partisan attempts by Republicans to simply block governance by Democrats, after Democrats had won (or arguably won) by elections. Many of the fulminations on this thread sound like stage-setting for more of the same.
Those who argue in favor of the virtues of Constitutional legitimacy would do well to apply self-restraint. The right is not the only side on which frustrations could boil over, and boiling frustration is not the right atmosphere for good governance. Bi-partisan boiling frustration is, of course, a recipe for catastrophe.
March 14, 2010, 6:30 pmOctavian says:
The short answer is that the so-called Slaughter Solution violates the US Constitution, but then the US Constitution is meaningless to liberals and this President.
March 14, 2010, 6:34 pmcboldt says:
Thanks for the link to the book review. Findlaw has a nice annotation … Clause 3. Presentation of Resolutions
That concern (evading veto by skipping presentment) doesn’t appear in the Slaughter Rule.
I also found a law review that discusses the meaning of “Order, Resolution, or Vote” (ORV): The Domain of Constitutional Delegations Under the Orders, Resolutions and Votes Clause: A Reply to Professor Gary S. Lawson, 83 Texas Law Review 1389-97 (2005)
Example of actions outside of statutes? Just check the lists of Congressional Action, including H.Con.Res, H.J.Res., S.Con.Res., and S.J.Res..
March 14, 2010, 6:35 pmBobDoyle says:
Please cite those cases or circumstances when “this same procedure” was used in the past.
March 14, 2010, 6:37 pmRoger says:
Public Citizen v. U.S. District Court, 486 F.3d 1342, and Field v. Clark, 143 U.S. 649 (1892), seem pretty much dispositive here.
March 14, 2010, 6:47 pmcboldt says:
– couldn’t we get past all this nonsense by just getting rid of the damned filibuster rule in the Senate –
March 14, 2010, 6:47 pmYes. The reason Congress is contorting itself is to avoid the “unlimited debate” (which is overcome with the 60 votes associated with cloture) that is allowed if the House were to amend HR 3590 and send it back to the Senate seeking concurrence. Pelosi is predicting that the House would approve HR 3590, if it is amended. The House will see the proposed amendment before it votes on them, but instead of being on the form of amending HR 3590, they will be put in the form of a concurrent resolution that directs parts of Congress to rewrite HR 3590.
Either way the bill is amended and passed (the “usual” way, or this “bastardized” way), both chambers will perform majority passage of the final language.
When the Democrats had 60 votes in the Senate, reconciliation was “not on the table.” Now, with fewer than 60 votes, the Democrats are seeking an alternative means to limit debate in the Senate, and the Budget Act has several debate limiting procedures. There are a few other areas of limited debate.
There are a few matters where the Senate is forbidden to engage in the use of a minority to avoid taking the vote. Budget is one of them.
pc says:
Start here and then you can move onto here. Key quote from the second link:
Now that Democrats are using the same procedures Republican’s used, the situation calls for violence. Interesting how that happens.
March 14, 2010, 6:48 pmAndrew says:
I would add to the list: a vote simultaneously approving more then one bill. The veto clause not only gives power to the President, but also places limits on the President, such as that the President cannot pick and choose which parts to veto. The ORV Clause prevents not only evasion of the veto, but also prevents evasion of the limits of the veto, IMO.
March 14, 2010, 7:07 pmJames says:
JR says:
I take your point, that the host could be seen as provoking and/or tacitly turning a blind eye to these calls for violence, given that there is usually some moderation or host-response in Volokh Conspiracy threads, but those commenters who reveal themselves as violent, discredit their side and turn-off real Americans. Since I oppose their analysis and lack thereof, I am all for them making horrible spectacles of themselves.
March 14, 2010, 8:17 pmAdam Sullivan says:
Well my hat is off to Benjamin Daniels.
Looking into all of this further, including the protests that were made to the 3/5s rule on raising revenue under Gingrich, it does appear that the House can make up whatever rules it wants as it goes along, and change them on a whim if they’d like, as long as (at any time) a majority can change a prior rule.
So the 3/5s rule on revenue could have been tossed at any time by 1/2 +1, making it almost a meaningless rule but a valid one nonetheless.
Point being, if the House wants to indulge in seances, witchcraft, nose picking, ear scratching or lawn darts to determine what passes and what doesn’t, it is up to the members of the house to vote for such rules. Then they change the rules again by majority if they like.
Not that it makes good political sense, but they can.
The fact that it resembles the Drones Club of “Wooster and Jeeves” simply informs us of the types of people we have decided to have represent us.
March 14, 2010, 8:56 pmOren__ says:
Polls already show this. Most Americans have a dismal view of Congress and yet a surprisingly positive view of their own Congressmen.
March 14, 2010, 9:11 pmOren__ says:
Eh, I’d rather not dilute the debate.
March 14, 2010, 9:13 pmAdam Sullivan says:
But doesn’t Congress already cobble together many different issues and items in “a bill” now, such that presidents have wanted a line-item veto?
If I understand your argument, would not have this been dealt with a long time ago were the executive’s ability to veto considered impaired? Thinking about it, Congress could do all of its work for an entire session and submit it as one, fat, giant bill and dare the president to veto it.
March 14, 2010, 9:13 pmAndrew says:
Adam, my point is: if the House votes for both bills at once, including HR3590 that has already been approved by the Senate, then why should any effect be given to that vote if the President approves only one of the bills? In other words, why should the President be able to approve of only part of what the House voted for? The President has to take all or nothing.
March 14, 2010, 9:27 pmAndrew MacKie-Mason says:
The Slaughter rule would only make it so that both bills were passed on a single vote, just like any bill that includes more than one provision. It would in no way prevent the recording of the yeas and nays if 1/5 request it pursuant to Article 1, Section 5 because the yeas and nays will be recorded on the vote to deem the bill passed, which is the same as recording the yeas and nays on the vote to pass the bill.
For those who think that there’s a difference between voting to deem a bill passed and voting to pass a bill…what’s your logic? Seriously. I can’t see it. And for those who think that the Democrats are doing this to try to hide their votes to pass health care from the American people, you have pretty low faith in the American people. This is not an attempt to hide votes, this is an attempt to make sure that both measures are passed simultaneously to appease those who don’t want to see one without also seeing the other.
The veto issue is also not a real issue, because the lack of a line item veto is a Congressional check on Presidential power, not a check on Congressional power. Congress determines what packages the President must accept together by putting them in bills. What method was used to pass those bills (alone or combined with other bills) doesn’t affect the veto.
If the House wanted to pass a thousand different budget laws combined under one omnibus rule, there wouldn’t be a problem with that, even though it would give the President the power to pick and choose. However, it would require the Senate to pass each of those budget laws on a separate vote since it is more difficult for the Senate to establish rules like this. The Senate could not pass it as one bill because then it would be passing a different bill than the House.
If your real issue is with the thought of health reform passing, just man up and admit that, don’t hide behind objections to the parliamentary procedures.
More detailed explanation here.
March 14, 2010, 9:52 pmAdam Sullivan says:
Isn’t it up to the House to determine what goes into a bill and gets called a “bill”? So if the house made a “packaging rule” that allowed every other bill passed on a Wednesday be consolidated into one of two bills, couldn’t it? And, as long as the Senate went along with this scheme, wouldn’t the POTUS get presented with two bills for that Wednesday?
At that point the president gets to decide which to sign but he can’t unpackage them. But the House (through its rules) has given him the ability to sign one or the other or both or neither, even if the members voted for them like they would separate bills.
So I guess what I am saying is that the House is a black box – regardless of its inner workings, if it produces something labeled “bill” and the Senate signs off, the president can only sign or veto said bill. Same goes for the house voting for multiple bills “deemed passed” in the same batch via a rule – as long as a majority of the members can have the rule changed allowing it, the process produces valid, discreet bills, each of which the Senate and then the POTUS are free to act on.
March 14, 2010, 9:53 pmAndrew MacKie-Mason says:
I’d just like to say that this is exactly right and an extremely good way of putting it.
March 14, 2010, 9:56 pmLN says:
Most Americans have a dismal view of Congress and yet a surprisingly positive view of their own Congressmen.
Of course. Our representative is bringing home the bacon. The others are stuffing bills full of pork.
March 14, 2010, 10:03 pmDavid M. Nieporent says:
The problem is, the Senate has already acted. The House has to pass the same thing as the Senate now, not two things, one of which is the Senate bill, consolidated into one.
March 14, 2010, 10:08 pmFury says:
Judge Michael W. McConnell has weighed in on this matter:
“To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.
The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”
More here.
March 14, 2010, 10:16 pmAndrew says:
Except that the Constitution explicitly looks not just at “bills” but also at “votes.” As Dave Kopel quoted in the blog post above: “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary [blah, blah, blah].” So just because the House says or decides that something is a “bill” doesn’t end the story.
March 14, 2010, 10:27 pmjrose says:
By virtue of the vote to establish the Slaughter Rule, and the vote to pass the reconciliation bill, the House has passed the same thing as the Senate, which is not consolidated into the reconciliation bill.
Given it appears I was wrong (I thought the Slaughter Rule would prevent the Senate bill from becoming law unless the Senate approved the reconciliation bill), I’m at a loss as to whether it’s worth the risk it might be found unconcstitutional. All the rule does it give the most transparent (useless?) veil of cover to House members in case the Senate bill becomes law and reconciliation doesn’t correct the embarassments.
March 14, 2010, 10:38 pmSean says:
There is precedent for one House taking a single vote but being deemed to have passed two separate pieces of legislation. Under clause 1 of Rule XXVII of the Rules of the House of Representatives, when Congress passes a concurrent resolution on the budget, pursuant to the Congressional Budget Act of 1974, the House is also considered to have passed a joint resolution increasing or decreasing the statutory limit on the public debt.
The rule specifically provides that “Upon adoption by Congress of a concurrent resolution on the budget…, the Clerk shall prepare an engrossment of a joint resolution increasing or decreasing, as the case may be, the statutory limit on the public debt…. Upon engrossment of the joint resolution, the vote by which the concurrent resolution on the budget was finally agreed to in the House shall also be considered as a vote on passage of the joint resolution in the House, and the joint resolution shall be considered as passed by the House and duly certified and examined. The engrossed copy shall be signed by the Clerk and transmitted to the Senate for further legislative action” (emphasis added).
This very procedure is how H. J. Res. 43 of the 110th Congress passed the House and was eventually enacted into law. One vote in the House, on the congressional budget concurrent resolution, was deemed to also be a vote for a joint resolution increasing the public debt limit.
The major difference between the “Slaughter Solution” and this procedure is the “fix bill” will already exist. In this procedure, the Clerk is directed to prepare an engrossed bill all without the House actually considering it separately.
I have no idea if the procedure in House Rule XXVII has been challenged, but assuming that this procedure passes constitutional muster, I see nothing wrong with the “Slaughter Solution.”
March 14, 2010, 10:43 pmyankee says:
The forms of Obama Derangement Syndrome on display on these boards never cease to amaze.
March 14, 2010, 11:00 pmELC says:
To the average person, ISTM that “passing” a bill means voting on the bill with the required percentage of legislators (whether a simple majority, or more than that, as may be required) voting “Yes”.
It seems to me that it has been claimed on the thread that the drafters of the federal constitution meant something other than that by the phrase “bill which shall have passed” in A1 S7, thus allowing either body to make a rule that equates “passing a bill” with “deeming a bill to have been passed without actually voting on it”.
Is there any contemporary documentation demonstrating that any participant in the constitutional convention had anything other than THE REQUIRED MAJORITY VOTING “YES” ON THE BILL when they discussed “passing a bill”?
March 14, 2010, 11:01 pmMark Buehner says:
Just wanted to note that a bill revised by the House wouldn’t be forwarded to the president at all. How could it if it hasn’t been passed by the Senate? The unaltered bill would be forwarded and signed, making it the law of the land. The alterations would be forwarded to the Senate. The president would not be choosing bills to sign, nor would the senate.
The Senate would then have the option to address the changes via reconciliation… or not. If not the law would remain law not withstanding the House’s provisions- the bill has become law, the house cannot include a trigger retroactively killing it later if conditions aren’t met.
March 15, 2010, 12:24 amBruce Hayden says:
I think that is what is going on – cover for the Democrats who want to pass something, but don’t want to be seen as voting for specific portions of the Senate bill. So, the reconciliation bill strikes the Cornhusker Kickback and the Louisiana Purchase. Fine. The Democrats in the House can say that they voted against them. Never mind that this got nixed in the Senate. Not their fault. Sipak and abortion? Ditto.
It is pure cover. Nothing more. The Senate really has no real reason to pass the reconciliation bill, since their bill would already be on the President’s desk by the time that they get the reconciliation bill. And Pelosi cannot sit on the passed Senate bill indefinitely due to that pesky “shall” in the presentation clause.
So, the only real purpose of this is to allow Democratic Representatives to go back to their districts and say that they didn’t really vote for all that garbage in the Senate bill, because they actually voted for the package that included removal of the garbage, ignoring, as noted above, that the reconciliation bill containing the removal of the unwanted provisions is unlikely to pass the Senate.
I agree with the distinct majority above that it will likely be Constitutional. However, it will still stink, and I think the Reps. voting for it are still going to be facing their constituents having passed the Senate bill into law, and any attempt to claim that, no, they really didn’t, will not resonate with the voters, since the bottom line is that the Senate bill will have become law through the vote of those Representatives. The subtlety of the such an ill-named maneuver will be lost on the voters.
March 15, 2010, 12:53 amJohn Skookum says:
If you’re referring to my comment, all I can say is: pull the wad out of your panties. I am being descriptive rather than prescriptive.
I speak with people every day– sober and sensible lawyers, doctors, bankers, and businessmen– who are genuinely fearful that if present trends continue, our liberty will be lost, unless pillars of the community like them are willing to kill or die to protect the Constitution.
They ask, at what point does the government lose the Mandate of Heaven? Many of them think it comes when the government “deems” laws to be passed that have never won a majority vote in both houses of Congress. At that point we are a banana republic, a mere dictatorship, and you know perfectly well that our forefathers would have approved of spontaneous civilian violence to excise such a cancer.
March 15, 2010, 1:02 amJohn Skookum says:
The Left will owe Sarah Palin a big fat apology if they really do detonate the Biden Bomb.
March 15, 2010, 1:13 amBruce Hayden says:
My prediction is not, since they have absolutely no incentive right now to pass it. The Democrats in the Senate would have their version of health care reform passed into law, and the reconciliation bill would just water it down, from their point of view. Right now, I see no reason that the Senate would think seriously about passing the reconciliation bill at all. Nothing in it for them.
Which is one reason that the health care “reform” has bogged down – a lot of Representatives know this, and that there is no way that they can force the Senate to pass, or even really consider seriously, the reconciliation bill.
Which is why you hear about ideas like 51 (Democrat) Senators signing something saying that they absolutely promise on a stack of Bibles to pass the reconciliation bill before the House would act to pass the Senate bill into law. But given the distrust between the two Houses, and that politicians routinely lie, even that isn’t gaining traction.
March 15, 2010, 1:21 amG. May says:
Looks like the mischaracterization of the thread continues unabated by the usual trolls.
I genuinely appreciate the thoughtful discussion provided by those – in the clear majority – who seemingly refuse to engage in petty partisan sniping.
March 15, 2010, 1:40 amJR says:
Then feel free to peruse John Skookum’s early comment, or Punkindrublic’s, or J Reece’s, or Jeff Medcalf’s. Your more mild threat, “Americans are not Europeans and that given sufficient provocation, will take seriously the Declaration of Independence and will rise up and abolish another monarchy, which will include the monarch and all his or her courtiers,” is still deeply disturbing, but not so bad as, say, “I vote to have a party with rope, tree, and every one of these socialist bastards.”
March 15, 2010, 2:24 amJR says:
Your comment among others is unacceptable in polite discourse. To threaten “blood in the streets” over a procedural debate (skipping past such things as the democratic process or public protest) is a sign of possessing a truly deranged, paranoid, violent character. Threatening political violence is a stupid-ass way to make your point, and it’s disgusting that you would do so over such a petty issue, and then attempt to defend that mistake. You really think that an alleged misuse of congressional procedure rises to the levels of “cruelty and perfidy” that the Founders sought to destroy? Shame on you, both for your rhetorical idiocy and your historical hyperbole.
March 15, 2010, 2:29 amDoc Merlin says:
“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”
This part seems pretty plain. I don’t see how they can honestly ignore it. This is extremely broad language.
Anyway, even if it was constitutional…. why would the Democrats want to do this, knowing they are opening up a can of worms for use by Republicans when they take the House.
March 15, 2010, 3:14 amNJO says:
If a bill is “repassed” by a 2/3 vote as stated in the “Order, Resolution, or Vote” paragraph of Section 7, does this not strongly suggest that the use of the term “passed” also refers to a vote?
March 15, 2010, 3:23 amMJW says:
It seems to me there are two possibilities: By saying each house can determine its own rules, the drafters of the Constitution allowed each house to pass a bill by whatever procedure it saw fit; or, the drafters assumed the term “passed” meant a majority vote by a quorum, and the ability to set the rules was restricted to the normal bounds of parliamentary procedures. The evidence, I believe, strongly favors the second possibility.
First, the requirement of a forum to conduct business wouldn’t make sense if bills could be passed by methods other than voting.
Second, the power of the vice president to break a tie vote in the senate, presupposes a majority vote.
Third, the power of one fifth of those present to request yays and nays assumes a vote.
Fourth, in Federalist 73, Hamilton says of the presidential veto: “It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority.”
Fifth, the Pocket Veto Case, 279 U.S. 655 (1929) decision approvingly quotes from Curtis’ Constitutional History of the United States: “This expression, a ‘house’, or ‘each house,’ is several times employed in the Constitution with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the constitutional quorum, assembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the president, should be again brought before the legislative bodies. They directed it to be returned ‘to that House in which it shall have originated’ — that is to say, to a constitutional quorum, a majority of which passed it in the first instance. . . .“
In considering the language granting the houses the power to make their own rules, keep in mind the similar language of the houses to judge the qualifications of their member in light of Powell v. McCormack, 395 U.S. 486 (1969).
March 15, 2010, 4:42 amSal says:
Not really. The problem is that in reconciliation, the GOP can challenge each and every line as not being germane to the budget, and the parliamentarian can rule the line out of order. A 60-vote threshold is required to reverse any parliamentarian decisions. So, if the GOP effectively gets one single provision stripped from the reconciliation bill, it could derail passage in the Senate, and even if the Senate does pass it, it would then have to go back to the House for another vote.
March 15, 2010, 7:24 ampc says:
It has been pointed out multiple times in this thread that Republicans have used this procedure in the past; 11 times in one session, even.
March 15, 2010, 7:35 amcboldt says:
Andrew, if you are still following this, you will find A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Texas Law Review 1265-1372 (2005), by Seth Barrett Tillman, to be of interest. Conventional wisdom is that the ORV clause is duplicative; Tillman argues otherwise. Either way, the issue is whether or not what emerges from Congress must be presented to the president. The health care bill, assuming it passes, will be presented.
March 15, 2010, 8:42 amELC says:
Thanks.
I did a little research after I posted about this last night, and I couldn’t come up with anything specific about what the framers would have meant by passing a bill. I tend to believe that’s because it was taken for granted that passing a bill meant having a vote on the bill with the majority in the affirmative (with your apropos addition of the quorum requirement).
March 15, 2010, 9:13 amELC says:
You seem to be trying to make some kind of point by your repeated invocation of these facts.
Here’s a clue for you: nobody complained when the damned Republicans were doing it because nobody knew about this kind of slick, cheap, underhanded maneuver until now.
Geesh.
If your point is that the damned Democratic politicians are no worse than the damned Republican policitians, well… welcome yourself to the Tea Party movement. :)
March 15, 2010, 9:16 ammls says:
That is true if “this procedure” refers to a vote on a rule which, upon adoption, “deems” a bill to be passed. It is not true (at least as far as I know) if it refers to a single vote, whether on a rule or anything else, that causes multiple bills to be deemed as passed.
The closest analogy to the Slaughter Solution would seem to be the “separate enrollment” version of the line item veto act, which was thoroughly debated (and actually passed in the Senate), in the 1990s. Ultimately, the Congress decided to pass the enhanced rescission version of the line item veto, which was eventually struck down by the Court. As Elizabeth Garrett explains: “The more extended debate in the Senate may reflect the reality that separate enrollment was really no less constitutionally problematic than enhanced rescission, and, given its deeming provision that allowed all the little bills to pass without separate votes on each, its constitutionality was perhaps more dubious.”
At the end of the day, I am not sure whether a single vote on multiple bills is constitutional or not. I do think that it is a substantial and unsettled constitutional issue raised by the Slaughter Solution.
It doesn’t seem that Professor Kopel or any of our other hosts is yet moved to weigh in. Perhaps if we set a record for longest thread not involving Sarah Palin, John Yoo or Israel?
March 15, 2010, 9:22 amPersonFromPorlock says:
Clearly, that law’s there to be there, not to be used.
March 15, 2010, 9:24 amMark Buehner says:
The problem with that idea is that it kills the entire reason this scheme could work. The ultimate problem right now is that Dems don’t have enough votes to pass this bill any given way. That only way to get it through is to create a nebulous enough atmosphere of how the law could ultimate end up looking to give enough members cover to vote for it. Everybody knows some members simply aren’t going to get the language they are being promised- its mutually exclusive in many cases with what the Senate is willing to actually go along with. Airing out those disagreements would doom the bill completely. So we play this farce out trying to entice enough congressmen into pretending they believe they will get the alterations they demand. Its all political cover.
March 15, 2010, 10:20 amMark Buehner says:
And btw the reason the Stupak gang has been abandoned would appear to be that they have the bad taste to actually stand by the provisions they are demanding, instead of seeking a politically plausible out to pretend to oppose a bill while actually voting for it. Stupak made it clear he wasn’t voting without actual, as opposed to virtual, guarantees of his abortion issues. Since adding those guarantees would provoke at least as many members to switch their votes to No, pursuing Stupak under this scheme becomes pointless. Because he actually wants change and not just the illusion of change.
March 15, 2010, 10:23 amSarcastro says:
Yeah, abandoning Stupak because he was demanding the impossible and wouldn’t compromise is proof of…um…politics?
March 15, 2010, 10:52 amMidwesterner says:
I’m sure many times in the massive bills that get passed every year an inherently self contradicting bill gets voted on, but in this case it is deliberate.
A ‘yea’ means ‘no to the Cornhusker provision’ because it votes to remove it from the Senate bill. But a ‘yea’ also means ‘yes to the Cornhusker provision’ because it votes for the Senate version.
What is novel here is that the entire purpose of the Slaughter Solution is to vote for two irreconcilable positions with one vote and leave the outcome of the House vote in the hands of units of government outside of the House. This violates section 5 because it denies the 1/5 from calling the roll and having the votes recorded and it also violates separation of powers since it removes the House decision from the House and places it elsewhere.
The courts have always been pretty defensive of separation of powers and with the coming sea change in the legislature this fall and 2012, I will be amazed if either faction of the court will let this stand. I’m thinking 9-0 against. The House cannot divest itself of the responsibility of making a decision.
March 15, 2010, 11:41 amPubliusFL says:
Which vote is “the vote to deem the [Senate] bill passed,” the vote on the rule or the vote on the bill with the reconciliation fix (passage of which fulfills the contingency before the Senate bill is “deemed passed”)?
March 15, 2010, 5:19 pmFred the Protectionist says:
Constitutional or not; Liberal or Conservative; this is just making “the law” more complex, convoluted, Byzantine, etc.
Is a small partisan victory really worth it?
The Democratic Party invented all the good legislative tricks, including the filibuster, don’t act surprised when this new legislative trick works.
March 15, 2010, 5:41 pmMatt says:
Benjamin Daniels,
I use the term “Chadha violation” loosely. Chadha does not just stand for the proposition that a one-House veto is unconstitutional, but rather that “the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure.”
To be sure, when I wrote my first post (which was concededly dismissive) I was not exactly sure of the operation of this rule. After reading the description provided by gregspolitics, I was less certain of my conclusion.
However, if you are correct when you say,
Then I am fairly convinced that this is unconstitutional. (So is former 10th Circuit Judge Michael McConnell.)
First, conduct does not become constitutional because of long-standing practice, especially when it comes to innovative law-making procedures. As you probably know, the legislative veto was used ALL THE TIME before it was struck down in 1983 in INS v. Chadha. Furthermore, just because it was held unconstitutional, doesn’t mean that Congress doesn’t put legislative vetoes in bills anymore — they, in fact, do. (The President typically acquiesces, since he doesn’t want to have to veto the entire package that the veto was tagged onto. To be sure, if this were to be litigated, the legislative veto provision would be struck down.)
Anyways, if the House does not actually vote on the actual bill, then it would be unconstitutional.
However, the ultimate disposition of such an issue would depend on the posturing of the case in which it is being litigated.
March 15, 2010, 7:53 pmMatt says:
Benjamin Daniels,
Also, I read your post on your blog.
Just so you know, you do not address the constitutional question presented under Chadha and Clinton.
Here are a few arguments for you: first, the question here does not aggrandize Congress or the President in the way that Chadha and Clinton did, respectively. Second, as already mentioned, there is a clear textual commitment to the House (“Each House may determine the Rules of its Proceedings.”) Such a textual commitment may cause this to be nonjusticiable under Baker v. Carr.
However, to the extent that the House *could* vote on the Senate bill and then the Reconciliation bill (but chooses not to) would cause a court to be suspicious. As I alluded to previously, the whole point of the Bicameralism requirement is that the Senate and the House both consider the exact same bill. The House could easily vote on the Senate bill; the Democratic members just don’t want to.
“The fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives-or the hallmarks-of democratic government and our inquiry is sharpened rather than blunted by the fact that Congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies[.]” INS v. Chadha, 462 U.S. 919, 944 (1983).
March 15, 2010, 8:34 pmChris Den says:
Matt said: “Conduct does not become constitutional because of long-standing practice especially when it comes to innovative law-making procedures.”
Finally, someone speaks the truth. I can’t tell you how many times I have heard the hollow argument of “precedence” when stating whether something “clearly” unconstitutional should be allowed.
March 15, 2010, 10:10 pmBenjamin Daniels says:
Thank you for bringing that to my attention. To my knowledge, the Chadha issue hasn’t been raised in any other forum, but here’s my understanding of it.
At issue in Chadha was a specific procedure (the one-house veto) which circumvented the legislative process prescribed by the Constitution by effectively allowing a single house to enact law. The argument I’ve presented for the constitutionality of the Slaughter rule relies on the fact that it satisfies the requirements of the Constitution by passing the bill. Since the Constitution does not outline a specific process for the passage of bills by either House, but instead allows them to set their own rules, there is no constitutional problem with the mode of passage itself.
The bicameralism requirement would be satisfied by the self-executing language of the Slaughter rule, which would consider the exact same bill passed by the House as the Senate has. As I’ve argued, there is no constitutional requirement for a recorded vote on every bill, so the procedure is not “contrary to the Constitution” in the language of the Chadha decision.
March 15, 2010, 11:19 pmPoorboy says:
It’s used frequently for passage of the debt-limit through the House
it was an “amended” (entirely replaced) form of HR-3590.
In other words, Constitution? What Constitution? Congress has been violating the Constitution routinely and for a long time.
March 16, 2010, 3:11 amJust A Question says:
I’m not a lawyer, or even a law junkie, but i do have a question. Sorry if this has already been covered, I read a lot of the comments above, but not all.
Is reconciliation used to “amend” a bill or a law? In my understanding of the opinion of the Senate parliamentarian, they can’t use the reconciliation process until AFTER the senate bill becomes law, so what use is the House “deeming” the bill passed if changes are passed if the changes can’t happen until after the President signs it into law?
And if they can use this process on a bill that has “passed” both chambers, what exactly goes to the President for signature? The Senate Bill (HR-3590)? The Reconciliation Bill? Both? Assuming both, with the President signing them at the same time, what would happen if the President only signs the Senate bill (HR-3590) and Vetoes the reconciliation bill? Seeing as the Senate bill was only “deemed” to have passed if the reconciliation bill passes, would the Senate Bill then be “deemed” not passed?
March 16, 2010, 7:25 amELC says:
This, I think, gets to the heart of the issue more directly than anything else that’s been said here.
The Democrats may resort to this method because they have no other way to pass a bill agreeable to both houses now that Democrat-dominated Massachusetts has deprived the Senate Democrats of their 60th vote.
Anybody who doesn’t think the methodology is underhanded has quite a different set of values than I do.
March 16, 2010, 8:59 amMatt says:
Benjamin Daniels,
I suppose the issue is whether the Bicameralism requirement requires more than just “passing” a bill; or rather, whether “deem and pass” can even be understood as “passing” a bill.
I’m thinking that Bicameralism requires both Houses to vote on the same bill. I believe that proposition is supported by the dicta in Chadha and Clinton.
As I said, Chadha doesn’t just knock down legislative vetoes. Chadha places strong, formal requirements on law-making.
Do you see why the “deem and pass” might be a problem? It is a back-door — it lets legislators vote on substantive issues without actually being on record. (Clearly this won’t happen here, since everyone knows about it — but it has definitely happened before under the radar.)
Transparency is a necessary condition for accountability; accountability is a necessary condition for a functioning democracy. To be sure, this is a little cliche, and it isn’t a legal argument, but it certainly motivates the Court’s formalistic attitude when it comes to law-making procedures.
(PS I want healthcare to pass. I’m just giving you my legal assessment.)
Also, at this point, as a political matter, passing this through “deem and pass” would be worse than not, I believe.
March 16, 2010, 10:22 amDan Francis says:
Great topic and great comments for the most part. Mine is a bit long, but hopefully easy to understand (I hope).
* When a bill is passed by either the House or Senate, it is sent to the other house for approval. Sometimes changes are made, but always those changes require a vote (voice vote or actual vote depending on the complexity of the changes). , it goes for a yes/no vote or modification (changes are added, etc).
* Once it passes again, both Houses, it goes to the President for either (1) approval/signature (and thus into law); or (2) right out veto (or maybe even pocket veto) …
Now since each house makes its own rules and we must not forget that (the Constitution gives them that right), we and they must abide by those rules. If those rules allow “deemed to have been passed” valid, then it’s valid, no matter which party is in the majority. This would also pass constitutional/USSC muster as well.
I don’t necessarily like this rule for one major reason: “… providing cover for any member (GOP/or DEM) sucks (in layman’s terms).”
If they can’t stand by their own principles and convictions and vote yes or no, then they need not worry about cover — the voters will make a note, and then (hopefully) toss them out on their collective ass(es) in November. That sounds harsh, I know but it makes sense, and it is the right thing to do.
I “deem it necessary.”
~ Dan Francis (Watertown, NY)
March 16, 2010, 1:47 pmken anthony says:
Almost all the comments I’ve read miss the point. Deeming a bill passed is unconstitutional for a specific reason. Why was the constitution written? What is it’s base purpose? It is to counter human nature where power always leads to despotism and tyranny which is currently fully exposed by the machinations of the majority. They want to avoid putting there names yay or nay on a bill because it exposes them to the electorate which is why the constitution specifically says their names are to be recorded. They are not allowed to avoid responsibility. That’s what’s unconstitutional about it.
March 16, 2010, 3:32 pmChas in OK says:
The House and Senate may adopt their own rules. However, neither may adopt any rule that would violate the plain language of the Constitution. For Example. Let us say the House and/or Senate pass a rule that votes may be cast anonymously. The Constitution clearly requires the votes be by the yeas and nays and published. Another example: let us say either chamber passed a rule that only members over age 50 could vote. No more absurd than what is being discussed/proposed by Pelosi, such a Rule would be clearly unconstitutional. Our founders wrote down our Constitution deliberately. They explicitly defined how to pass legislation, how it may be vetoed, vetoes overridden, how the Constitution may be amended.
Both parties need to return to obeying our Constitution, otherwise resign, or else!
March 16, 2010, 5:01 pmGeorge Vreeland Hill says:
Health Care Reform is about to happen, like it or not.
The Republicans have tried to stop Americans from better health care choices for years.
The GOP always said that the Democrats would break this country with health care.
Guess what?
It was the Republicans who broke this country with greed, self interest and bs.
They (GOP) have no answers to health care, so we the people answered it for them.
Like it or not.
George Vreeland Hill
March 21, 2010, 7:12 pm