Former federal judge Michael McConnell, of Stanford University, considers the constitutionality of the so-called “Slaughter Solution” — a proposal to allow the House to pass both the Senate health care bill and proposed reconciliation amendments in a single vote.
To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.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.”
These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.
ohwilleke says:
Each house is the judge of its own rules. If the Senate and House each rule that the a bill is passed, and the bills are identical, then the bills are passed. The internal procedural steps necessary to pass a bill are a political question by express constitutional mandate. ohwilleke(Quote)
Caesar says:
I would add that the requirement for passage of identical bills reduces the chance of error in the final law. Forcing both houses to consider the same text minimizes–but of course doesn’t eliminate–the possibility of creating inconsistencies in the law. Caesar(Quote)
Simon Dodd says:
Would the court ignore the enrolled bill rule to actually do something about this, if HCR is passed under such a rule? Justice Scalia called it a “salutary principle” in Munoz-Flores, but presumably it must be one with limits, and perhaps those limits should be deemed to have been transgressed when it is demonstrably a fiction. Simon Dodd(Quote)
PeteP says:
“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.””
I disagree. With the Slaughter Solution, even if one accepts this ‘deeming’ thing as being passage of a bill’, there will still be two bills that have passed the House — one being the original Senate bill, word-for-word identical to the Senate-passed version, and another the ‘reconciliation’ bill that may or may not be taken up by the Senate, and may or may not be passed there. However, by this process the Senate bill will still have ‘passed both houses in identical language’ ( again, if one accepts ‘deeming’ as being passed ).
The only thing the Slaughter Gambit does is tell us that House Dems don’t trust their own house to pass the reconciliation measure AFTER passing the Senate bill, so they are bundling them. I suppose some think this also gives them ‘plausible deniability’ to pretend they never voted for the Senate bill, but of course voting for the Slaughter Rule and then for the dual-vote bill combo is clearly ‘a vote for the SENATE BILL’, in fact, two votes for it ( for The Rule, and On Passage ).
So — the House rank and file doesn’t trust Pelosi et al not to mess with the reconciliation half after the Senate half is passsed. That is all the Slaughter Trick addresses. PeteP(Quote)
dcperson says:
I’m slightly confused. The text says:
“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.”
So, the Senate passed bill X. The House will vote on Bill X + Y. The Senate will then voe on Bill X + Y. Why doesn’t that work? Both will have passed Bill X + Y in one vote–the House when it passes what was formerly known as the senate bill plus amendments and the senate when it passes the amended version. dcperson(Quote)
Houston Lawyer says:
If the Senate doesn’t vote a second time on a separate bill, the bill the Senate originally voted on does not become law. Therefore, the House will never vote to approve the Senate bill. Houston Lawyer(Quote)
Bruce Hayden says:
I can see how the Democrats would love that, but that cannot be right here, esp. after the Senate Parliamentarian ruled last week. Bruce Hayden(Quote)
Cloudesley Shovell says:
It is impossible to write anything in a way that it will not be misunderstood, misinterpreted, twisted in its meaning, or otherwise tortured to justify the personal notions or goals of whoever happens to be in power at the moment.
Thus a provision putting Congress in charge of its own rules becomes justification for sweeping away any contradictory language or limitation in the Constitution on passing bills. Perhaps not long from now we’ll start hearing calls for a new “rule” redefining “passed” to mean something less than a majority vote. Who could be opposed to passing a bill with only 40 % of the vote? After all, this law is for everyone’s own good!
Any limitations on the power of government eventually get eroded away; it is the nature of things. The ratchet generally only goes one direction, towards more government power. Whenever it does reverse towards freedom from government intrusion, no matter how incremental the reversal, such movement is normally greeted with howls of protest and endless rounds of harumphing. Cloudesley Shovell(Quote)
Cornellian says:
Didn’t VC blog a while back about a bill that the President signed into law, and only afterwards did someone notice the House and Senate bills differed on one small point? What happened in that case? Cornellian(Quote)
af says:
Not sure why Professor McConnell mentions reconciliation, which is of course irrelevant to the constitutional question. Whether a bill is considered passed for purposes of reconciliation is obviously a question of Senate rules, not the Constitution.
The only constitutional issue is whether health care reform would be a valid law after the House and Senate votes. The question is whether a law that has been passed verbatim by both houses is valid when one house passed it in two votes and the other passed it in one vote. I would think the answer is yes. af(Quote)
cboldt says:
– I can see how the Democrats would love that, but that cannot be right here, esp. after the Senate Parliamentarian ruled last week. –
The parliamentarian has walked back what was reported as an assertion that reconciliation requires the presence of a presidentially-signed bill to operate on.
When one reads the statutory language describing reconciliation, it notes that reconciliation can operate (is intended to operate) on bills before they are engrossed. 2 USC 641
Subsections (a) and (b) are reconciliation resolutions directed toward Congressional Committees, which also (obviously) come before engrossing and presentment. cboldt(Quote)
PeteP says:
dcperson — ‘So, the Senate passed bill X. The House will vote on Bill X + Y. The Senate will then voe on Bill X + Y. Why doesn’t that work?”
The House does not ‘vote on Bill x + y’, they vote on Bill X and Bill Y at the same time. That is different. Bill X is still Bill X, and Y is still Y. Two separate bills. X is the Senate langauge, and House passage means it goes to the President for signing, unless Pelosi tries to ‘pocket veto’ it after enrollment. In the meantime, Bill Y, having passed the House, goes to the Senate for consideration, under reconciliation rules.
This is not the same as saying ‘Bill X, as amended with a set of amendments called Y’, which would mean that the Senate langauge X is different from the House language X , and it would return to the full Senate under Regular Order, not reconciliation.
Houston Lawyer says:
“If the Senate doesn’t vote a second time on a separate bill, the bill the Senate originally voted on does not become law. Therefore, the House will never vote to approve the Senate bill.”
Nonsense. If the House ‘deems’ the Senate bill as passed, then it is passed. The other bill, the sidecar, is a separate bill the Senate may or may not agree to take up, and may or may not amend, and may or may not pass. PeteP(Quote)
yankee says:
Before commenting on it, I’m still trying to figure out how this bit of parliamentary maneuvering would work. So let me get this straight:
1) Senate passes bill X.
2) The House passes bill Y, which contains X. Bill Y also contains X’, which is an amended version of X, but provides that X’ will only be “deemed” passed after the Senate passes X’.
3) Senate passes bill X’.
4) Bill X’ goes to the President, who signs it.
Is this right? If so, what’s the point of bothering with this X’ stuff, why not just send X straight to the President? Is the idea that they really want X’ but they want to have X waiting in the wings in case they can’t get X’ through the Senate? yankee(Quote)
Bob from Ohio says:
The exact text of the “Senate Health Care Bill” would be passed. The “Fix Bill” would say we “approve” the Senate bill but also pass amendments by a second bill.
So, I remain of the view that Clinton v. NYC authorizes this procedure.
The House can express its approval by any reasonable means. The Senate uses “unanimous consent” all the time. Bob from Ohio(Quote)
Joe says:
Horse manure. Article I, Section 7 is one of the most detailed parts of the constitution. You must PASS a BILL. There is no procedure detailed for passing a RULE that “deems” the bill passed with “changes.” You must pass what the Senate passed (word for word) to satisfy bicameralism.
Just pass the Senate BILL. As unpopular as this abomonation is (for the $500 billion tax hikes, $500 Medicare cuts and dubious constitutionality on the substance), just imagine the chaos that will reign if a large segment of the population views ObamaCare as illegitimate from a process standpoint. Is that any way to govern a country? Use your common sense.
Pass the BILL. Like every other Congress has done on every other massive entitlement program. Joe(Quote)
Mark Buehner says:
Because the Senate won’t be able to vote the second time until the president has signed the first bill, as per the senate parliamentarian (and common sense, given that there is nothing to ‘reconcile’ until the bill becomes law). The president will have to sign the unamended Senate bill and then the senate can take up the alterations (or not), and then the president will have to sign the amended bill.
I think the problem is that the House is passing 2 bills with 1 vote. If they are claiming its all a single bill, it would have to go back to the senate to be passed as usual business requiring 60 votes for cloture. So they must be claiming they are passing 2 separate bills with a single vote (the original senate bill and the changes), and i think there is a constitutional issue there. Mark Buehner(Quote)
Mark Buehner says:
We can stipulate that because there is a political roadblock to going straight to reconciliation– the republicans will call points of order and amendments out the wazoo, which can potentially delay this indefinitely (unless Biden comes in and shuts down the show, which would be yet another political nightmare on top of everything else). So its far better to get the senate bill signed into law, and then deal with reconciliation after the law is in place and changes could potentially benefit republicans to some degree, making it far less politically charged process. Mark Buehner(Quote)
Bruce Hayden says:
And as I pointed out in the last thread, the Senate is unlikely to pass the reconciliation bill, given the hassle AND especially since their bill will already be on the way to the President’s desk for signing. (I don’t see Pelosi being able to sit on the Senate bill indefinitely after it has been passed, due to the requirement that it be “shall” be presented to the President for signing). Bruce Hayden(Quote)
John says:
This doesn’t work, because this isn’t how it will be done. The Senate passed Bill X, the House will attempt to pass Bill X+ Y and then the Senate will (maybe) pass Bill Y. Thus both houses don’t ever vote on identical bills! John(Quote)
Blue says:
I don’t see the problem with the Slaughter Rule...I just don’t think it will do what is claimed.
By voting on the amendments, the Representatives are doing two things: passing the Senate Bill AND sending a new bill to the Senate to fix the passed bill. The possible outcomes of this are:
1) Senate doesn’t act, Senate HC Bill becomes law.
2) Senate accepts the House Fix bill in its entirety, it also becomes law.
3) Senate accepts the House Fix bill with changes; it has to go back to the House for review.
What would be a Constitutional violation would be if the Senate took Option 3 and that modified measure was sent to the President without the House acceeding to the Senate changes. Blue(Quote)
cboldt says:
Live Pulse: An option still on table?
That too is imprecise, but words like “engrossed” and “presented” don’t enter the common vernacular. The House must “pass” the law before it is the subject of reconciliation, but “passage by the House” precedes, usually by days and sometimes by weeks, a law appearing in the statute books. cboldt(Quote)
davod says:
I had not followed the process closely before. I thought reconciliation between bills took place before the President signed the reconciled bill into law. davod(Quote)
Steve says:
I don’t see the constitutional objection to passing the same bill in one part in one house and in two parts in the other house. If the Senate passes X, the House passes X + Y, the Senate passes Y, and the President signs X + Y, bicameralism and presentment have been satisfied as to every jot and tittle.
The problem is introduced by the apparent necessity for the President’s signature in the middle of the process. If the Senate passes X and the House passes X + Y, the President may not simply sign X and cause it to become law. Permitting such a procedure would effectively give each house a line-item veto over the enactments of the other; when the other house passes a bill, just vote on the parts you like and send those parts to the President. That can’t be permissible.
But the House is not simply intending to pass “X + Y” as a single bill containing the text of both X and Y. Rather, the House intends to pass X and Y as two separate bills, meaning that X can go to the President’s desk for signature even before the Senate acts on Y. The only wrinkle is that the House proposes to do this pursuant to a “rule” whereby a single vote will determine the passage of both X and Y.
This strikes me as an internal procedural matter rather than a constitutional one. If there’s a constitutional requirement that you can’t pass two bills with one vote, I’m not familiar with it, and Clinton v. New York certainly doesn’t stand for that proposition. Steve(Quote)
Bob says:
Most of what the government does is unconstitutional. Bob(Quote)
yankee says:
You must be reading a different Section 7 than I am. The detail in mine does not include a definition of “passed,” a “no deeming” clause, or an (express) “word for word” requirement.
(Disclaimer: Despite hundreds of comments, I still don’t really understand how the Slaughter procedure works or what the point of it is supposed to be.) yankee(Quote)
Blue says:
I think that’s exectly right, Steve. Bill X is passed and can be presented at any time following the House vote. Blue(Quote)
AF says:
To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law.
Note the sleight of hand. There is no constitutional requirement that a bill become law before being eligible for amendment via reconciliation. The requirement is that the bill pass both houses and be signed by the President before becoming law. Under Slaughter’s plan, after reconciliation both houses will have passed the exact same bill, albeit through different procedures. When President Obama signs it, it will be a valid law. AF(Quote)
OrenWithAnE says:
No, but the Senate parliamentarian seems to think that it must be a law before being eligible for the procedural niceties that come with reconciliation. OrenWithAnE(Quote)
Assistant Village Idiot says:
It would seem that the issue hinges on whether either house, under the reasoning that it can set its own rules for passage, can make a rule which contradicts another section of the constitution. Which is the trump card?
This question is confused by the reality that bills have been “passed” in some sense, but not in the usual sense necessary for them to be presented to the President. Does this unusual form of passing qualify? Blithe suggestions that the bills have passed, without noting this exceptional nature, seem evasive. I understand in a court of law that such omissions by lawyers are common, forcing the opposition to make the case and conceding nothing. But in a discussion forum, where weighing the strengths and weaknesses — not advocacy — would seem to be the topic at hand, this seems to be not the straight bat. Assistant Village Idiot(Quote)
PeteP says:
ADF — “Under Slaughter’s plan, after reconciliation both houses will have passed the exact same bill, albeit through different procedures. When President Obama signs it, it will be a valid law.”
Wrong. Under Slaughter’s Plan ( or any other modality of reconciliation ), the House will have passed 2 bills. One of them has already passed the Senate, the other has not been received there yet.
Yankee — “(Disclaimer: Despite hundreds of comments, I still don’t really understand how the Slaughter procedure works or what the point of it is supposed to be.)”
The only thing the Slaughter Gambit does is guarantee members of the House that the Senate bill can not be passed in the House unless the House also passes a reconciliation measure. This protects them against the following scenario :
1 ) Pass Senate bill
2 ) Debate and change a reconciliation bill
3 ) Be stuck with whatever’s in that recon bill, in terms of ‘the Senate bill already passed, oops, too late to do anything about that now’.
IOW — it’s an indication that the House Dems do not trust their own party and their own leadership as to what will or will not be in the House-final version of the Reconciliation bill. It does not ( can not ) bind the Senate in any way. PeteP(Quote)
Mark Buehner says:
IF there is a constitutional problem with this procedure, its that the house is passing 2 bills with a single vote. If they were only passing one bill, they are amending the Senate bill, so they ARE passing 2 bills. The question is if that is constitutionally valid. Mark Buehner(Quote)
Andrew says:
I agree with Judge McConnell, because of the following constitutional provision:
So, if the House votes on two bills at once, the President must approve that vote “before the same shall take effect,” because the vote at least partially requires the Senate’s concurrence. The President cannot pick and choose which part of the House vote to approve, and the House vote cannot have any effect unless the President approves it.
This is mistaken for several reasons. According to Senator Kent Conrad (the Democratic Chair of the Senate Budget Committee):
So, you have to look at the reconciliation instructions, not just the federal statute that cboldt referenced above. The reconciliation instructions (S. Con. Res. 13) do not authorize a “reconciliation resolution” (what cboldt discussed) and instead only authorize a “reconciliation bill” that can only make “changes in laws”:
Speaker Pelosi has acknowledged that the Senate will only consider reconciliation after it’s signed by the President:
I’m not aware that Pelosi or the Senate Parliamentarian have changed this correct interpretation. Andrew(Quote)
AF says:
No, but the Senate parliamentarian seems to think that it must be a law before being eligible for the procedural niceties that come with reconciliation.
Right. McConnell is trying to constitutionalize the Senate rules. AF(Quote)
resh says:
Ok. Assume the Slaughter rule transpires; h/c becomes law. The GOP takes over in November and repeals it, via the Slaughter rule. Obama vetoes the repealed bill, but 2/3rds aren’t available to override.
The GOP House says to Obama, you can’t veto this bill because it was passed not by vote but under House rules, which are plenary and protected via separation of powers.
Thus, the presidential veto is rendered forever moot. That’s why the Slaughter rule is unconstitutional, imo. resh(Quote)
Mark Buehner says:
I don’t believe this is correct at all. If the ‘Slaughterized’ bill passes the house, the Senate bill goes to the WH and the amended version goes to the Senate. Conceivably Pelosi can hold the Senate version for a time, but probably not long enough until the reconciliation can take place.
Moreover this wouldn’t make sense because the senate isn’t going to accept the revised House version at face value, they will need to amend it again and it will go to conference. The whole point of this exercise is to get the senate bill to the president for his signature. There is no way anybody wants to get into an actual debate between the house and senate about the revisions to this bill, at least until it is already law. That could take months. Mark Buehner(Quote)
AF says:
Under Slaughter’s Plan ( or any other modality of reconciliation ), the House will have passed 2 bills. One of them has already passed the Senate, the other has not been received there yet.
Correct. And then the Senate passes the other bill, and the Presidents signs them, and they are both law. AF(Quote)
Joe says:
So your opinion is “rule deeming Senate bill passage” plus “changes” = Senate bill? Hilarious. Go re-read the article above. Can you point me out to the constitutional procedure making law via passing a “rule” that “deems” a bill passed instead of just passing the damn bill?
“Word for word” is necessary to meet the bicameralism requirement. There are only two ways to pass a bill through Congress to the president’s desk:
1. Pass an identical bill through the House and Senate.
2. Pass different bills though the House and Senate. Convene a committee on the bill to hash out differences and issue a committee report, which is then passed by the House and Senate, without changes.
In our case here, the House must pass the Senate BILL in it’s exact wording (“word for word”), signed by the president, and then come back to reconcilliation changes. Passing a “rule” that “deems” a bill passed while making “changes” is not constitutional. Pass the damn bill. There are enough problems substantively with this massive pile of trash called ObamaCare. To pass an entitlement through dubious constitutional procedure is to invite chaos. Pass the damn Senate bill. Joe(Quote)
Mark Buehner says:
No. The Senate isn’t going to sign whatever the House sends them, that’s just impossible. The president signs the Senate bill, and then the Senate takes up the amendments and they negotiate with the house over the changes. That’s the only way to make this work in a timely fashion. Mark Buehner(Quote)
rbj says:
This is becoming a philisophical question. Senate has passed Bill X, the House votes one time to pass Bill X & Bill Y. Hsa Bill X passed both houses? Bill Y makes changes to Bill X, so we have House members who voted for Bill X only because Bill Y makes changes to Bill X. Were these House members voting for Bill X or for “Bill-X-modified-by-Bill-Y?”
ISTM that the House is intending to vote for a modified Bill X, not the original, Senate Bill X. Thus, even though Bill X language has passed both houses, there is no Congressional intent for original Bill X. And then there is no identical language passing both houses.
(and then it would be interesting to see if Justice Scalia delves into legislative intent, or simply reads the black letter of Law X.) rbj(Quote)
AF says:
No. The Senate isn’t going to sign whatever the House sends them, that’s just impossible. The president signs the Senate bill, and then the Senate takes up the amendments and they negotiate with the house over the changes. That’s the only way to make this work in a timely fashion.
Well, if they try to do that, I agree there would be constitutional problems with it. Once the House passes the Senate bill and the amendments together, they are a package and can’t be divided up. Either the Senate would have to pass the same amendments as the House, or the House would have to pass the Senate bill again after the negotiations. AF(Quote)
cboldt says:
– I’m not aware that Pelosi or the Senate Parliamentarian have changed this correct interpretation. –
We don’t have the parliamentarian’s statement, which reportedly was given orally. Pelosi acknowledged the report (president must sign), but the report continues:
The point I tried to make above was that “passed into law” is an indefinite statement in the context of this debate.
I certainly agree that reconciliation can act on laws that have been presented to and signed by the president. But I do not believe that is a necessary condition for reconciliation. cboldt(Quote)
Greg says:
The 60 vote filibuster rule was designed to allow folks to vote yea or nay on a crappy bill knowing full well it won’t pass the 60 vote majority, thereby satisfying their loony constituents. If it only takes 51 votes to pass maybe their votes would be honest votes? Greg(Quote)
cboldt says:
– I’m not aware that Pelosi or the Senate Parliamentarian have changed this correct interpretation. –
We don’t have the parliamentarian’s statement, which reportedly was given orally. Pelosi acknowledged the report (president must sign), but the report continues:
I tried to make the same point above, that “passed into law” is an indefinite statement in the context of this debate.
I agree that reconciliation can act on laws that have been presented to and signed by the president. But I do not believe presidential signature is a necessary precondition for reconciliation. cboldt(Quote)
Andrew says:
You’re correct, as an abstract matter, that it is not a necessary condition for reconciliation per the U.S. Code. After all, the U.S. Code says (at 2 USC 641b) that Congress can pass “a concurrent resolution containing directives to one or more committees to determine and recommend changes in laws, bills, or resolutions.” But in this particular instance, Congress enacted a concurrent resolution last year (S. Con Res. 13) that only directed “changes in laws.” Andrew(Quote)
kwh9 says:
My thoughts on the Slaughter Solution go in the same direction — the S. Ct. is likely to view whatever results from that maneuver as “not a law” under the Constitution. kwh9(Quote)
Mark Buehner says:
Thats the entire point of the exercise. Otherwise it would just be the normal practice of sending a senate bill back to the senate with revisions. The entire point of this is to send the the bill to the president for his signature while going on record with the revisions they want from the senate. But they aren’t going to wait around for the senate to revise them, that would defeat the purpose.
What is critical to remember is that the Slaughter scheme is designed to pass the Senate bill while giving the appearance of revising it without the practice. The idea is NOT to revise the bill. This is a political exercise to provide cover. If there was a deal on the table that the house and senate could live with all of this would be moot. Mark Buehner(Quote)
cboldt says:
– I’m not aware that Pelosi or the Senate Parliamentarian have changed this correct interpretation. –
We don’t have the parliamentarian’s statement, which reportedly was given orally. Pelosi acknowledged the report (president must sign), but the report continues:
I tried to make the same point above, that “passed into law” is an indefinite statement in the context of this debate.
See too, Dems Confident That Senate Parliamentarian Was Misinterpreted.
I agree that reconciliation can act on laws that have been presented to and signed by the president. But I do not believe presidential signature is a necessary precondition for reconciliation.
CRS RL33030 The Budget Reconciliation Process: House and Senate Procedures, August 10, 2005 cboldt(Quote)
mojo says:
Only a lawyer would consider this anything but what it obviously is — an attempt by the Democratic majority to have their cake and eat it too, by weaseling in a “rule change” that “deems” a vote taken when it hasn’t been, allowing them to avoid having actually to do their jobs in the light of day.
Buffoons. Poltroons. Congress-critters, one and all.
Pass it, don’t pass it, but please — stop acting as if Joe Sixpack is brain dead. He’s not. mojo(Quote)
jetty says:
What is this “constitution” that you speak of? jetty(Quote)
Ron Greene says:
It doesn’t work because X ≠ X+Y.
Ron Greene(Quote)
cboldt says:
Sorry for the repetitions. I assumed that the early ones didn’t go through, so made editorial changes and additions while the Volokh website was acting up.
We also haven’t seen any proposed text for the Slaughter Rule. Typical Congressional conduct, work in the dark, say one thing, do another, rinse, repeat. cboldt(Quote)
blech says:
Does the
“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.”
part of Article I, Section 7 not come into play at all?
Is there precedent allowing the phrase “Each House may determine the rules of its proceedings” to be tortured this way? blech(Quote)
ELC says:
I brought up this point on the other thread. What exactly did the framers mean by passing a bill? I think, to the average, ordinary non-lawyer person, passing a bill means voting on the bill, with a quorum present and the majority voting Yea. I believe that’s what the framers meant by passing a bill, too. And I believe that they didn’t define what they meant by passing a bill because everybody knew that’s what was meant and they never dreamed anybody would come up with any other cockamamie scheme for “passing” a bill without actually voting on it.
I’m with Joe, then: PASS THE BILL. But don’t pretend that’s what you’ve done.
I think the Slaughter Solution is being discussed only because (1) the Senate bill was passed and is (2) different from the House bill, but (3) the House does not want to pass the Senate bill without amendments, so (4) the Senate would have to vote again on the bill with amendments [a conference report, actually, I think it would be], but (5) the Democrats lost their filibuster-proof super-majority with the election of a Republican senator from the ultra-Democratic state of Massachusetts. ELC(Quote)
PeteP says:
Mark Buehner says:
“The only thing the Slaughter Gambit does is guarantee members of the House that the Senate bill can not be passed in the House unless the House also passes a reconciliation measure. I don’t believe this is correct at all. If the ‘Slaughterized’ bill passes the house ”
BillS plural. That is the distinction you are missing. Just because they are passing two bills under one Rule, that does not make them one bill.
“, the Senate bill goes to the WH and the amended version goes to the Senate.”
Wrong. There IS NO ‘amended version’. There are two bills. If there were ‘an amended version’, then that would have to return to the Senate under Regular Order ( not reconciliation ).
” Conceivably Pelosi can hold the Senate version for a time, but probably not long enough until the reconciliation can take place. ”
That is indeed a question.
“Moreover this wouldn’t make sense because the senate isn’t going to accept the revised House version at face value, they will need to amend it again and it will go to conference.”
Wrong. There IS NO ‘REVISED VERSION’ !!! There are TWO BILLS ! The first one, the Senate already passed. If the House passes it without amendment ( which is their plan ), it goes to the President. A SECOND bill is going to be offered via the reconciliation process. You are corrert that if the Senate modifies it in any way, it goes back to the House for a vote. There is no ‘conference’, there is only ‘ping pong’ back and forth.
BTW, as many have pointed out — the C says Congress ‘shall pass’ bills, it does not say VOTE on them. The Senate passes bills all the time without voting on them. It’s called ‘Unanimous Consent that the bill be considered as passed’. If no one objects, the bill has passed the Senate without a vote. Some people mistakenly equate this with ‘passed with a unanimous vote, IOW 100 votes’ — that is not correct. It means ‘passed, with no vote having been taken, but no Senator objecting to it’s passing’.
This satisfies the C, and I would guess the Slaughter Gambit does as well.
RBJ —
“This is becoming a philisophical question.”
No, it’s not.
” Senate has passed Bill X, the House votes one time to pass Bill X & Bill Y. Hsa Bill X passed both houses? ”
Yes.
“Bill Y makes changes to Bill X,”
NO IT DOES NOT !!!! Bill Y makes changes to THE LAW, which is what Bill X will be after Obama signs it.
” so we have House members who voted for Bill X only because Bill Y makes changes to Bill X.”
Irrelevant why they did what they did. They either voted Yah nor Nay on the combination. Both then ‘passed the house’. Bill X, having previously passed the Seante, goes up to be signed. Bill Y heads to the Senate, who start their process under reconciliation rules. If they accept it word-for-word, it goes to the WH for some ink. If they change anything, it goes back to the House, until and unless such time as both houses have passed ( or deemed, or UC’s ) identical versions.
” Were these House members voting for Bill X or for “Bill-X-modified-by-Bill-Y?”
The former, and also for ‘Bill Y as a stand-alone bill’, because the latter be done only through a standard amendment process, in which case the amended bill X ( there IS no Y bill in this method ) goes back to the Senate under egular order ( 60 votes ). If this were the case, the contenets of Y would have been offered on the floor of the House as AMENDMENTS to Bill X ( like usual ), not a ‘reconiliation bill Y’.
“ISTM that the House is intending to vote for a modified Bill X, not the original, Senate Bill X. Thus, even though Bill X language has passed both houses, there is no Congressional intent for original Bill X. And then there is no identical language passing both houses.
Wrong. If the above doesnt’ explain it to you , then I can’t .
AF — “Once the House passes the Senate bill and the amendments together, they are a package and can’t be divided up.”
Wrong. They are two separate bills. They even each have their very own different enrollment Bill Numbers. Think of it like this — when Harry Reid asks for ‘Unanimous consent for the following committees to meet’ and lists off 10 committees, he’s not asking for them all to meet TOGETHER in one room, is he ? No, he’s asking for each of them to meet SEPARATELY. PeteP(Quote)
ThomasD says:
If there’s a constitutional requirement that you can’t pass two bills with one vote, I’m not familiar with it, and Clinton v. New York certainly doesn’t stand for that proposition.
Whatever the house may vote on, is it not a bill? If a single vote can be assigned to multiple ‘bills’ then what was the problem with the line item veto? ThomasD(Quote)
robtr says:
The house can pass the senate bill and reconcilliation bill at the same time but that would be passing an amended senate bill which would require a vote in the senate on the amended bill and would be subject to a cloture vote.
If they claim they weren’t passing the senate bill at the same time then the senate bill was never voted on and could not become law. The house can change it’s own rules but it can’t change the constitution without amending it. For instance the house could pass a rule that said the speaker would cast the only vote on legislation, would that meet the constittutional requirments? Of course not, section 5 says the “members” of either house must vote on it publically, not a member or a fiat but the members. robtr(Quote)
cboldt says:
– You are corrert that if the Senate modifies it in any way, it goes back to the House for a vote. There is no ‘conference’, there is only ‘ping pong’ back and forth. –
Assuming there are differences between the chambers, the method of resolution is a political matter. They can ping pong, or they can conference. Another possibility in the ping pong mode is the thing just dies due to inaction. Comprehensive Immigration Reform died that way. cboldt(Quote)
memomachine says:
Hmmmmm.
Sooooooooooooo.
When the Republicans control both houses of Congress and the White House. I wonder what they’ll do with this “Slaughter Solution” in their turn.
mice will play. memomachine(Quote)
From Inwood says:
Channeling Danny Kaye in The Court Jester, here’s what the Dems can tell their Pro-Life constituents about a principle of double effect, a/k/a, the shell game:
A vote on a motion,
Re a Bill just a notion
Is not a vote for the Bill
With a license to kill
Tho the product at hand
Becomes the Law of the Land.
Hey, it’s not really the end.
Just ask us later: “amend”. From Inwood(Quote)
Vercingetorix says:
So the House can pass a Bill they haven’t voted on*. Good to know.
*Unless the actual text of the Senate Bill is included with the ‘rule change’, the actual Senate Bill text will have had ZERO votes on it. Vercingetorix(Quote)
rrr says:
One can’t help but wonder at the outrage of the defenders here should Gingrich had ever tried such shennanigans. rrr(Quote)
cboldt says:
– If a single vote can be assigned to multiple ‘bills’ then what was the problem with the line item veto? –
The line item veto permitted the president to legislate. If Congress submitted the budget in the form of 1,000 bills, then the president can pick and choose. The only obstacle to that is practicality, not the Constitution.
And for those looking for “votes” on each of those hypothetical bills, see routinely, the Senate passing multiple Post Office renaming bills in one fell swoop, with two Senators in the chamber (one in the chair). I get a big kick out of advise & consent on treaties, with one senator on the floor, and one in the chair. “All in favor rise” etc. They even giggle about the 2/3rds requirement. cboldt(Quote)
ArrowSmith says:
Yeah and they’ve been disregarding it for like 160 years now. Let’s face it, the Constitution is more of a guide then a document we’re gravity-bound to comply with. ArrowSmith(Quote)
cboldt says:
– One can’t help but wonder at the outrage of the defenders here should Gingrich had ever tried such shennanigans. –
I think what Congress is doing in this regard isn’t defensible. But that doesn’t mean I think it’s unconstitutional.
The root problem is dysfunction in the Senate. The nominal function of cloture is to have full, informed debate before casting a simple majority vote. The rule of “unlimited debate” is being abused in order to provide the minority with a veto power. If it wasn’t for that, the House would just amend HR 3590 and send it back to the Senate. No question, if both chambers pass the same language by simple majority, they have properly legislated. cboldt(Quote)
Sarcastro says:
Yeah, that cboldt is such a lib! Sarcastro(Quote)
Mark Buehner says:
“Wrong. There IS NO ‘amended version’. There are two bills. If there were ‘an amended version’, then that would have to return to the Senate under Regular Order
Relax– you are getting confused by wording. I understand completely that there are two independent bills. However, one is an amended version of the other. The original senate bill would be sent to the president. The bill with the house changes goes back to the senate.
If calling it the “House modified version” or something else will clear that up, so be it. Mark Buehner(Quote)
Mark Buehner says:
The rule of “unlimited debate” is being abused in order to provide the minority with a veto power
You are assuming the rule of unlimited debate isn’t intended to provide the minority with veto power. Mark Buehner(Quote)
Roger says:
As I posted in the last thread on this topic, 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. Roger(Quote)
Fedya says:
What ever happened to the conference committee? Wasn’t the House supposed to pass one bill, the Senate its version, and then members of the two houses draw up a final bill in conference committee for both houses to go back and vote on? Fedya(Quote)
Andrew says:
I disagree with that, especially if the 1000 bills contradict each other. That would allow the President to choose between diametrically opposite policies, in violation of the first sentence of Article I of the Constitution.
As a general principle, that’s obviously not correct, because it depends what the language says (e.g. if it violates free speech then they have not properly legislated). In the present situation of the “Slaughter Solution,” the House would be taking a “Vote” within the meaning of Article I, Section 7, Clause 3 and therefore that Clause also imposes limitations on Congress as well as the President.
The U.S. Code says (at 2 USC 641b) that Congress can pass “a concurrent resolution containing directives to one or more committees to determine and recommend changes in laws, bills, or resolutions.” But in this particular instance, Congress enacted a concurrent resolution last year (S. Con Res. 13) that only directed “changes in laws.”
If the Parliamentarian thinks that the Senate can pass reconciliation before the underlying Senate Health Bill is law, then the Parliamentarian is at odds with Democratic Senate Budget Chair Kent Conrad, with House Speaker Nancy Pelosi, and with the plain language of S. Con. Res 13. I don’t see any solid reason to think that the Senate Parliamentarian has taken such a position. Andrew(Quote)
Andrew says:
I disagree with that, especially if the 1000 bills contradict each other. That would allow the President to choose between diametrically opposite policies, in violation of the first sentence of Article I of the Constitution.
As a general principle, that’s obviously not correct, because it depends what the language says (e.g. if it violates free speech then they have not properly legislated). In the present situation of the “Slaughter Solution,” the House would be taking a “Vote” within the meaning of Article I, Section 7, Clause 3 and therefore that Clause also imposes limitations on Congress as well as the President.
The U.S. Code says (at 2 USC 641b) that Congress can pass “a concurrent resolution containing directives to one or more committees to determine and recommend changes in laws, bills, or resolutions.” But in this particular instance, Congress enacted a concurrent resolution last year (S. Con Res. 13) that only directed “changes in laws.”
If the Parliamentarian thinks that the Senate can pass reconciliation before the underlying Senate Health Bill is law, then the Parliamentarian is at odds with Democratic Senate Budget Chair Kent Conrad, with House Speaker Nancy Pelosi, and with the plain language of S. Con. Res 13.[*] I don’t see any solid reason to think that the Senate Parliamentarian has taken such a position. Andrew(Quote)
cboldt says:
– You are assuming the rule of unlimited debate isn’t intended to provide the minority with veto power. –
That’s a result, not an assumption. The Senate is a deliberative body, and it is a common quality of deliberative bodies that unless otherwise stated, decisions are reached by simple majority. The function of unlimited debate is to become informed, or to inform/persuade an opponent. Refusing to cast your reasoned decision in a vote is dysfunctional.
Other than the generic “may make its own rules,” there is nothing in the Constitution that suggests the framers intended the Senate to operate on a minority veto basis. And too, the 60 vote hurdle is a senate creation. Until 1806, it was majority rule, from 1806 until, IIRC, 1916, a single senator had the power to block — minority of “1” had veto power. When the cloture rule was introduced, it was 2/3rds of the body. Point being that the minority veto situation is a creation of the Senate, not of the Constitution. cboldt(Quote)
Thorley Winston says:
Someone can correct me if I’m wrong, but I don’t believe that the Senate actually passes legislation with “unanimous consent.” IIRC “unanimous consent” is used for (non-controversial) procedural votes such as adopting the rules of how long someone can speak on a bill. When it actually comes time to actually vote up or down on a bill or an amendment, each Senator who is present still has to vote “yay” or “nay” and their votes are recorded as such. Thorley Winston(Quote)
mls says:
This is, IMHO, exactly right. I also think that is essentially what McConnell is saying, although his approach is a little different (and I don’t have access to the full op-ed). mls(Quote)
Dean Chance says:
I think you’re close.
The Slaughter Rule arose as a response to a particular problem: if House Democrats pass the Senate bill straight up on the promise of later reconciliation, how can House Democrats be assured that reconciliation will actually happen? What’s to prevent the Senate Democrats from simply taking the bird in hand and moving on?
My reading of the Slaughter Rule is this:
The House passes a reconciliation bill which stipulates by rule that the Senate bill becomes law if, and only if, the reconciliation bill becomes law, and the reconciliation bill only becomes law if it is also passed by the Senate. No Senate reconciliation, then no health care law.
This approach forces the Senate to act on reconciliation if they want health care legislation to become law. In this way, House Democrats can avoid getting stuck voting for legislation which they do not want.
I don’t think it can work, given Senate rules that are bound to alter the House bill and send the process right back to square one. But, if you remember the circumstances under which the Slaughter rule was offered, you’ll see that it’s not simply a case where the House deems the Senate bill to have passed and that sends it to Obama’s desk.
There’s no plucking “X” out of the House bill, and moving “Y” to the Senate — that would not address the concerns of Democrat House members who oppose the Senate approach. Dean Chance(Quote)
Steve in Colorado says:
I still don’t see where the Slaughter procedure accomplishes anything. The House passes the Senate bill as it is. The president signs it and it becomes law. A second bill is passed at the same time and presented to the Senate. What obliges the Senate to act on the second bill at all? After all, the bill the Senate passed, albeit on a party line vote, is now law. The Senate is happy and the House is hung out to dry with the second bill.
As I see it, some of the news coming out of DC, such as attaching a student loan takeover by the Federal Government to the second Health Care bill make it less likely that the bill could enter the Senate under reconciliation rules, should the Senate leadership even be inclined to take it up. Steve in Colorado(Quote)
cboldt says:
– I disagree with that, especially if the 1000 bills contradict each other .. –
So the Congress has a numerical limit on bills? Assume that there are no contradictory provisions among the bills (which would be the case if any given budget was carved up into bits), and your objection must find another basis for support.
– if it violates free speech then they have not properly legislated –
Well, yeah, sure. But this thread is about the constitutionality of different methods of getting both chambers of congress to agree to a bill. I think the Health Care bill is unconstitutional (as is Medicade, etc.), as being outside of the enumerated powers of the federal government — but that is hardly responsive to inquiry about the method, procedure or process of passing legislation. Assume, for talking purposes, the substantive language is constitutional.
– in this particular instance, Congress enacted a concurrent resolution last year (S. Con Res. 13) that only directed “changes in laws.” –
And Congress can dicker about what constitutes being “a law.” All we have to go on is smoke from partisans on both sides, and interpretation by reporters and talking heads. I haven’t seen the question put to the parliamentarian, his answer, or the Slaughter Rule. cboldt(Quote)
Assistant Village Idiot says:
rrr — I wonder something different. If this strategy/tactic is so clearly legitimate, why hasn’t it been hit upon before? If it is so obvious a possibility, why was Scott Brown’s election considered important by all observers, including the parliamentarian?
Whatever else it is, it’s new, and pointing to passage by unanimous consent as a precedent is rather an admission that there is no stronger precedent.
This may not be any more evasive than a hundred other things Congress does (either party), but it clearly is evasive. Assistant Village Idiot(Quote)
Mark Buehner says:
The Senate is a deliberative body, and it is a common quality of deliberative bodies that unless otherwise stated, decisions are reached by simple majority. The function of unlimited debate is to become informed, or to inform/persuade an opponent. Refusing to cast your reasoned decision in a vote is dysfunctional.
Unless you consider unlimited debate the best way to inform your fellow legislators. If my friend is intent on jumping off a cliff, better i should talk at him continuously than to give my best case and let him jump.
Other than the generic “may make its own rules,” there is nothing in the Constitution that suggests the framers intended the Senate to operate on a minority veto basis. And too, the 60 vote hurdle is a senate creation.
Very true– and the Senate made their own rules which created a 60 vote hurdle to cut off debate, which the constitution invested and encouraged them to do. The Constitution bowed to the wisdom (and political dimensions) of the houses of Congress rather than outlining specific rules. The Senate decided that a super-majority should be necessary to cut off debate. If you follow the Constitutions logic in trusting to the wisdom of the senate you should trust that they themselves believe it best to require a super-majority to pass legislation, particularly extraordinary legislation.
The senate has seen fit to protect the rights of the minority, i’m not sure how that can be considered dysfunctional. Mark Buehner(Quote)
Andrew says:
OK, let’s assume no contradiction between the 1000 bills. If all the bills are passed by separate votes, then tentatively I’d say it’s constitutional. However, if there’s a single vote in the House for all of the bills, and the Senate approves all but one of the bills, then the other 999 are unconstitutional under Article I, Section 7, Clause 3. Andrew(Quote)
cboldt says:
– I don’t believe that the Senate actually passes legislation with “unanimous consent.” –
Yeah, it does. Often. Same with amendments. Obviously, the points passed in this fashion are not contentious. Roll call votes are the exception.
Go to Congress by day, pick just about any Tues-Thu for the Senate, and look near the end of the day. Here’s one example — two senators in the chamber ...
cboldt(Quote)
Blue says:
EXACTLY. Blue(Quote)
mls says:
There is no objection if the bills were passed separately. The issue arises if all the bills are passed with a single vote. As I noted in the other thread, that was the constitutional objection to the “separate enrollment” version of the line item veto bill. mls(Quote)
Bruce Hayden says:
I agree that this is entirely for cover for the House members who are on the fence. This is a way for them to vote for the Senate Bill, but then pretend that they didn’t vote for the provisions in that bill that their constituents didn’t like, because they had been removed by the reconciliation bill. But the problem for them is that there is really no reason for the Senate to take the reconciliation bill seriously, because their version will already be on the President’s desk.
And also keep in mind that the normal conference committee method of passing legislation is out because the Democrats in the Senate no longer have the votes to overcome a sure filibuster there. And, they would have to at least invite the Republicans to participate, which they obviously don’t want to do. And, thence reconciliation, which only requires a majority. Bruce Hayden(Quote)
Mark Buehner says:
The House passes a reconciliation bill which stipulates by rule that the Senate bill becomes law if, and only if, the reconciliation bill becomes law, and the reconciliation bill only becomes law if it is also passed by the Senate. No Senate reconciliation, then no health care law.
If that were politically possible the House would just send back their version of the final bill to the Senate, no need for a Slaughter rule.
No, what this is is a purely political maneuver allowing the Senate bill to pass while attaching the Dems name to the bill they really wanted, so they can go back and say the Senate double crossed them (notwithstanding the fact that the Senate never agreed to any of it).
Again– it is critical to understand that there is no deal. It would take weeks for the house and senate to come up with something both could live with (if ever)- that is not what Pelosi is trying to do. If they want to get this done this week the only plausible way is that the Senate bill gets approved and signed. They can go back and deal with the Senate at that point. The Slaughter idea is just a political smokescreen– which btw is probably why it would be held constitutional. Functionally its not really doing anything, this is purely a political stunt. Mark Buehner(Quote)
cboldt says:
– If you follow the Constitutions logic in trusting to the wisdom of the senate you should trust that they themselves believe it best to require a super-majority to pass legislation, particularly extraordinary legislation. –
The Constitution’s logic is “a majority is sufficient to pass, except in case of treaties, impeachment ...” and that is exactly hows the process plays out. It takes a supermajority to agree to vote, but the vote itself is a simple majority vote, even on extraordinary legislation.
Now, if the Senate realizes that it’s members lack the judgment that comes with making legislation, and imposes a minority veto rule, it’s certainly enabled by the Constitution to do so. I don’t see a Constitutional infirmity until the minority veto intersects with executive prerogative (nominations and appointments). But still, on the point of legislation, refusing to cast your vote, when you have arrived at a reasoned decision, is dysfunction. cboldt(Quote)
Nonce says:
I thought the point of the Slaughter solution was something different: that it was to prevent the eventual outcome from being “bill X passes”. I.e., what some in the House aim for is a solution in which if the Senate passes the reconciliation bill (“Y”), then bill Y becomes law upon Obama’s signature, because it would have been passed by both House and Senate. But if the Senate fails to pass bill Y, the argument could be — and I thought the point was that the argument would be — that Obama’s signature of bill X would not be sufficient to make bill X law: the Senate passing bill X and the House “deeming” bill X to have passed as part of a rule for a vote on bill Y would not be sufficient. I.e., the argument could be that the Slaughter solution is a perfectly acceptable was of getting bill Y passed but not an acceptable way of getting bill X alone passed, which is exactly what some in the House want.
It seems that this approach should not be acceptable, in that it would be equivalent to a process in which the House conditionally passed bill X, or passed bill X subject to contingencies. After the House vote on “bill-Y-plus-rule-deeming-X-passed”, but before further Senate action, has bill X passed both houses? With the approach above, the answer would be “no”, until the Senate had removed the (effective) contingency, after which the answer would become “yes”. Seems inventive — but fishy. Nonce(Quote)
Arthur Kirkland says:
I have not seen a persuasive analysis — including a legitimate discussion of opposing points and authorities, for example — of this issue.
The universe of people equipped and willing to perform such an analysis on such a relatively obscure technical point is probably small, and the inhabitants of that universe prepared to publish a comprehensive analysis for general consumption have not revealed themselves to my eyes or ears.
No shortage of shallow, result-driven, self-confident arguments from myriad directions, though. And, I suspect, at least a couple of advocacy pieces stored on confidential Congressional computers. Arthur Kirkland(Quote)
cboldt says:
– The Senate decided that a super-majority should be necessary to cut off debate. –
This is also the case in Roberts Rules of Order. 2/3rds to stop debate, which is aimed to prevent railroading something over members of the body who are insufficiently informed, i.e., “voting in the dark.” Once a member has decided how he or she will vote, that member SHOULD agree to limit debate. When sufficient number of the body are decided (one way or the other), the body is supposed to decide the matter before them. Failed cloture motions don’t dispose of the issue, they are a call for more debate. cboldt(Quote)
Mark Buehner says:
_“But still, on the point of legislation, refusing to cast your vote, when you have arrived at a reasoned decision, is dysfunction.“_
We’ll have to agree to disagree. The filibuster is a long standing practice of the senate used and endorsed (and condemned) by both sides. The Constitution recognized the Senate would and should make its own rules, this is one of them. I’d argue it actually works remarkably well, and this case is a perfect demonstration. 3 months ago the Dems could cut off debate as they wished. Then they proposed legislation the populace hated and lost a political battle which cost them this ability. Seems quite functional indeed. The Constitution wasn’t established to entrench the power of the majority (which is inherent in any system), but to protect the interests of the minority. I’d say this senate practice is entirely in that tradition. Mark Buehner(Quote)
Andrew says:
Hmm, I don’t think it’s fair to assume that McConnell’s piece falls within those categories. Bear in mind that the Constitution was meant to be understandable by the people, and discussed by the people. That’s not to say that law review articles have no place. They do. But I’d hate to leave everything to the law review articles (or to the lawyers). Andrew(Quote)
lrC says:
If the drafters of your constitution had foreseen this situation or had it described to them as a contingency, they might have — after wondering how such extreme fools and/or charlatans might come to pass — set about protecting what they probably assumed to be self-evident: you pass (or not) a bill with its own direct vote.
Everyone wants to tiptoe around the extreme moral cowardice of the House majority as if it is something to be permitted. Why?
The House is not going to vote on, or pass, bill “X+Y”. The House is going to pass “Y”. A Rule is supposed to pass bill “X”. lrC(Quote)
bpbatista says:
If the “Slaughter Rule” is constitutional, then, obviously, tarring and feathering Congressmen is free-speech protected by the 1st Ammendment. bpbatista(Quote)
jgreene says:
Since when has this Congress considered the Constitution or Senate Rules in their mad rush to steamroller the American People.
We’re going to have to wait until November to begin removing these arrogant criminals and parasites from their sinecures in Washington. In 2012 we can continue the job of “cleansing” our body politic of liberals, socialists, progressives and communists. jgreene(Quote)
Sarcastro says:
Citationless imputations of the will of the Founders? Threats on Congressmen?
I like where this thread is going! Sarcastro(Quote)
clifford says:
As I am not a lawyer, a couple of layman questions:
1. Has the ‘bundling’ of more than one bill into a single vote ever been done before? Is there precedent?
2. Art. I, Sec. 7, Par 3 says that “Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary... shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him...” If there are two bills in the single vote, how can the President, by approving the single vote, seperate the one (which is to become Law) from the other (which is to be returned to the Senate)? clifford(Quote)
Chris Gerrib says:
What nobody seems to note is that this “deeming resolution” has been used for budgetary bills (which is what reconciliation is) a number of times before. Chris Gerrib(Quote)
MJW says:
How can this be when Article 1, Section 5 states that a majority of the members must be present to do business? MJW(Quote)
Mark Buehner says:
If there are two bills in the single vote, how can the President, by approving the single vote, seperate the one (which is to become Law) from the other (which is to be returned to the Senate)?
Because the bill with the revisions wouldn’t go to the president since it hasn’t been voted on by the senate. The bill with the revisions would go to the senate and the senate bill would go and be signed by the president. Then the senate would allegedly address the house revisions. Or not. Mark Buehner(Quote)
sofa says:
“Laws repugnant to the Constitution are null and void.”
–SCOTUS, 1803 Marbury vs Madison
“Courts/Governments repugnant to the Constitution are null and void.”
–sofa, 2010
“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...
...
And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
–T. Jefferson, et al, Declaration of Independence sofa(Quote)
cboldt says:
– If this strategy/tactic is so clearly legitimate, why hasn’t it been hit upon before? –
It has. The “self executing rule” example recently cited is increasing the debt limit. The House doesn’t vote on the resolution to increase the debt limit, but by golly, the debt limit is raised (signed into law even).
– If it is so obvious a possibility, why was Scott Brown’s election considered important by all observers, including the parliamentarian? –
Well, if the Senate had 60 DEMs, then the House could amend HR 3590 directly, instead of via a separate bill, and the debate and/or use of some “cheat” (but not unconstitutional) parliamentary tactic would not be necessary.
My belief is that this kabuki dance is designed to make the Senate become the reason for failing to pass health care. Intramural infighting. cboldt(Quote)
richard mcenroe says:
“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote.”
Excuse what may be an obvious question from a layman, but isn’t this effectively what happens when one bill is grafted in toto onto another to grease/coerce its passage, as with, hypothetically conjoining immigration reform with a defence-spending bill. richard mcenroe(Quote)
Orion says:
The interesting thing is that if this thing goes through it sets s precedent: Congress will be able to pass bills into law that have not been voted on by both Houses according to the Constitution. In effect Congress becomes a unicameral body that is only “technically” divided into two Houses, with Pelosi and Reid the floor managers for bills they want shoved through. The same thing works for Cap and Trade or Amnesty or anything else they want passed w/o the supermajority requirement of the Senate: have the Senate pass a bill, any bill and then amend it as they see fit before passing it in the House. The final bill doesn’t even have to remotely resemble the original, so long as they can assemble a majority in reconciliation.
Goodbye, US Constitution. You had a good run, but now it’s over. Orion(Quote)
cboldt says:
– How can this be when Article 1, Section 5 states that a majority of the members must be present to do business? –
The Record reflects the presence of a quorum.
What, you are shocked that there is lying going on? ROTFL!!! cboldt(Quote)
Mark Buehner says:
The question isn’t whether deeming resolutions are allowable (they are), it is whether they can pass two independent bills with a single vote. This isn’t the same as grafting two bills together. One bill will go to the president and a different bill will go to the Senate, both under a single vote. That may be unconstitutional. But its also fairly innocuous, its a political stunt designed to allowed politicians to claim they voted differently then they really did. But nothing actually happens any differently then if they simply voted twice. Mark Buehner(Quote)
cboldt says:
– The Constitution wasn’t established to entrench the power of the majority (which is inherent in any system), but to protect the interests of the minority. I’d say this senate practice is entirely in that tradition. –
The protection of the minority’s interests is accomplished with limited powers. The use of unlimited debate to prevent taking the vote was absent in the Senate until 1806. The routine use of refusal to vote is a recent phenomenon.
Anyway, agree to disagree is fine by me. cboldt(Quote)
cboldt says:
– The question isn’t whether deeming resolutions are allowable (they are), it is whether they can pass two independent bills with a single vote. –
This won’t untangle that easily. It is common to have “multiple acts” bound up in one bill, and even there, a series of votes leading up to a vote on final passage.
The deeming resolution effects passage of a resolution (e.g., to increase the debt limit), without voting directing on the resolution that increases the debt limit. There is NO House vote, voice, recorder, or otherwise, on passing the resolution — but there IS a vote on passing the rule that “deems” the resolution to be passed. cboldt(Quote)
JohnEMack says:
Let us assume there is a constitutional problem with the manner in which a bill was presented to the president for signature. Would litigation of the act’s constitutionality be precluded by the “political question” doctrine? JohnEMack(Quote)
Mark Buehner says:
The use of unlimited debate to prevent taking the vote was absent in the Senate until 1806.
So its only been in use 200 years? :) If this were a legal precedent it would be a mighty high burden to overturn. Mark Buehner(Quote)
Andrew says:
I have no problem with the House passing two bills with a single vote, even if the House does it in a sneaky “deeming” way. What I have a problem with is the President signing one of those two bills into law even though the other bill has not been approved by the Senate. Article I, Section 7, Clause 3 says pretty clearly that the House “vote” will have zero effect until it is approved (in toto) by the President. Andrew(Quote)
MJW says:
Well, then to the extent that occurs, it’s inapplicable to the present discussion, since any laws “passed” by such a method are clearly unconstitutional. That might fly for renaming post offices, but it certainly wouldn’t for major legislation. MJW(Quote)
Spitzer says:
I think it is grossly unfair to force House members to vote on a deeply unpopular bill before it becomes law — it is a fundamental right to have one’s cake and eat it too. Why can’t both houses simply deem passed a bill that states that healthcare will be reformed under government auspices, and then let HHS do the rest? Spitzer(Quote)
sureyoubet says:
I don’t see why the Democrats see some bizzare maneuver like the Slaughter Rule more politically possible or appealing than simply having the House pass a bill that reflects the current thinking on Senate bill plus amemdments, followed by the Senate taking whatever steps are necessary with it’s own internal rules to force an up or down vote. I’ll admit that I’m not Robert Byrd when it comes to teary eyed deference to the “great deliberative body” that is the US Senate, but it sure seems like people will understand bypassing or limiting the filibuster to get a simple majority up and down vote on a real bill that was in fact passed by the House a whole lot more than some conditional vote in the House on a bill they actually don’t want to pass followed by jamming amendments through a “reconciliation” (just another internal Senate rule) process that was never really intended for this particular purpose.
Let the House vote on a new bill. Let the Senate change or suspend its rules to force an up or down vote. People can understand that. sureyoubet(Quote)
Repeal 16-17 says:
Unless the Slaughter Rule is implemented, we won’t know if it’s Constitutional. There are ways for it to be Constitutional and ways it would be Unconstitutional.
Regardless of Constitutionality, this maneuver would look terrible to the voters. The Congress, regardless of which party is in control, is distrusted by the average American. Because of that distrust, the Slaughter Rule would be perceived by the average American as an attempt to circumvent the Constitution, even if it is Constitutional. The Slaughter Rule would be an excellent example of, as any State Bar Association would say, “an appearance of impropriety.”
In the end, even if the Slaughter Rule would not be declared to be Unconstitutional, it would be effectively used against the Democrats in the midterm elections. This is something each Democrat should consider before going along with any version of the Slaughter Rule. Repeal 16–17(Quote)
Simon Dodd says:
How does it set that precedent? It sets the precedent that a house can vote on two bills at once. The base bill will be voted on by the House, and the Senate has already voted on it. At the same time, the House will approve a new bill, and the Senate will have to vote on it. This may be a bad precedent in itself, but it’s not the one I you envisage.
The only function of this rule, it seems to me, is to reassure moderate Dems who worry that the House leadership won’t bring up amendments in reconciliation. Why those MoDems would be so gullible as to fall for this trick when the real obstacle to those amendments is in the Senate, which this tactic does nothing to address, is beyond me. Simon Dodd(Quote)
cboldt says:
– So its only been in use 200 years? –
Senate rules pre-1806 specifically provided for “calling the question” by a simple majority. That was removed, but the right to unlimited debate doesn’t necessarily mean that the members of the body will convert “right of sufficient time to air the issue” into a minority veto. It was many decades after 1806 before abuse of unlimited debate was attempted, and it wasn’t until the 1980’s or so that it became routine.
Looking for a Gupta / Gold article on the filibuster, I ran into Ezra Klein — How the filibuster was invented. Easier read, and now that you know “Gupta Gold Filibuster,” you can look for the more thorough account if you’re inclined. cboldt(Quote)
hahaha says:
But the Senate won’t pass X+Y — that’s the point of this whole dance. They’ve lost their 60 votes. Either the House passes the Senate version, or they’re dead in the water. hahaha(Quote)
Mark Buehner says:
What I have a problem with is the President signing one of those two bills into law even though the other bill has not been approved by the Senate.
No, no, the president can only sign the bill passed by both the house and senate. The other bill has to go to the senate. Theoretically they could just sign it via reconciliation (assuming its applicable) and then it would go to the president.
Article I, Section 7, Clause 3 says pretty clearly that the House “vote” will have zero effect until it is approved (in toto) by the President.
I don’t think so. One bill will go to the president with the identical wording as the Senate voted bill. The other bill won’t go to the president at all. The problem is that there HAS to be two bills in question. Otherwise, of course it couldn’t go to the president because you would have 1 bill not approved by the senate. Hence, if there are two bills Article I section 7 says “Every Bill which shall have passed the House of Representatives and the Senate” shall go to the president. Since one of the bills hasn’t passed the senate it can’t go to the president. The other has, therefore it SHALL.
The fundamental question remains whether passing two independent bills with one vote is constitutional. And this is not the same as creating a conglomerate of bills– they are not combined, they are distinct because they end up in two different locations. Mark Buehner(Quote)
CatCube says:
A violation of the rules of a deliberative body doesn’t matter until a member of that body formally objects. So while the formal rules say that there must be a quorum, it doesn’t matter in practice unless a Senator rises to a point of order and demands a quorum call. This is usually done as a delaying tactic if a vote on a bill is due, and the leadership is trying to get a few more votes to pass it. CatCube(Quote)
Mark Buehner says:
At the same time, the House will approve a new bill, and the Senate will have to vote on it.
The senate won’t have to vote on it at all. And whether they do or do not won’t affect the Senate bill being signed by the president in any way. Mark Buehner(Quote)
Arthur Kirkland says:
I had not assumed anything about McConnell’s article, except that I couldn’t read it because of a firewall. My response was aimed at many other opinions, here and elsewhere.
I just read McConnell’s article. There is far more lather — references to Cornhusker kickbacks, political doom for those who vote for health care reform, and the like — than hard-forged substance. The article is a strutting procession of one-sided points presented as the case for the obvious conclusion concerning a question not seen as close in any regard. This is little or no acknowledgement or refutation of opposing points and authorities. There is no reference, in particular, to any precedents that cut against his preferred outcome’s grain. Every policy or factual point mentioned supports McConnell’s desired destination.
Perhaps McConnell’s better submission was gutted beyond salvation by editors confronting fierce space or ideological constraints. Maybe he was asked to provide a piece aimed at laymen. But I have no doubt that almost any decently trained advocate — including McConnell — could produce an equally strong argument to the contrary in a couple of days. For that reason, the search for a persuasive, comprehensive analysis must continue. Arthur Kirkland(Quote)
MJW says:
Some have argued the because the Constitution doesn’t specify the method by which a bill is “passed,” the power to “determine the rules of its proceedings” allows each house to decide for itself what it means to pass a bill. On a related thread, I mentioned a number of reasons for believing the drafters of the Constitution implicitly assumed a bill would be passed by a majority vote of a quorum. There’s a Supreme Court case that makes this explicit.
United States v. Ballin, 144 U.S. 1 (1892)
As appears from the journal, at the time this bill passed the House, there was present a majority, a quorum, and the House was authorized to transact any and all business. It was in a condition to act on the bill if it desired. The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes, and here the general rule of all Parliamentary bodies is that when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either House shall be necessary for the passage of any bill. No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains. MJW(Quote)
Rob Ives says:
The “Slaughter rule” is a legislative time machine. It is an attempt by the majority party to reap the benefits of a vote they had in the past, but no longer have. Rob Ives(Quote)
Dean Chance says:
I suppose desperation has taken hold. What started as a strategy to protect House members from the perfidy of the Senate has morphed into a crazed effort to act before House members have a chance to confer with their constituents over Easter recess.
How the Slaughter Rule provides cover is a mystery to me — it’s completely transparent and it was just announced that the House reconciliation bill will include all of the reviled special deals from the Senate bill. That smokescreen might as well be chlorine gas.
As for the constitutionality — they’ve used this approach before without challenge. I don’t see why they can’t use it in this instance, though it certainly won’t go on under the radar as was the case previously. Dean Chance(Quote)
Mark Buehner says:
I agree its a lousy smokescreen, which is a pretty good indication as to what the courts would decide. Politically this would be more costly than just voting on the senate bill at this point, and as a purely political maneuver that should be answer enough.
That being said, the only way Pelosi gets this done this week is if she can get enough Democrats to visualize their objections being acted on after the bill is signed into law, knowing full well they likely will not be. The fundamental problem is that there are not enough Dems in the House that agree on one bill at all, much less agree with the Senate. That is why its not realistic to come up with an actual compromise, whether they trust the senate or not. The compromises that would bring some votes on board would alienate others. The fact is the less concrete the reconciliation, the better for Pelosi.
The trick will be letting everybody make their own personal wish for reconciliation and hope they can convince voters that that amounted to something more weighty than their actual vote. Mark Buehner(Quote)
GW says:
Do you remember,“It depends on what the meaning of is, is”? I didn’t think the lawyer profession could look more ridiculous. But now some of you guys are trying to justify this so called “Slaughter rule” as an appropriate means of jamming this health care atrocity down the throat of an unwilling public. If our elected representatives think this bill is the right thing to do for the country they need to stand up and be counted. Then we the voters can judge them at the ballot box. Disgusting doesn’t even begin to describe these machinations and the people who condone them. GW(Quote)
Chris Travers says:
I think he requirements for this to be Constitutional (though IMO it is clearly not legitimate) are met, namely that identical language is passed by both houses through a proper, voting procedure. However, that in no way ends the discussion. Not only is this illigitimate political process, but it may not actually work:
1) For it to work, the Senate must pass the House reconciliation bill verbatim with no amendments (GOP, bluedog, or otherwise). This makes things difficult to start with.
2) For it to work, this must match the Senate’s rules for reconciliation. Given the Senate Parliamentarian’s ruling last week, it doesn’t seem to.
This may be one of those things where the process meets minimal Constitutional standards, smells worse than a three-day-old mackerel, and simply won’t work. It thus seems to me we should be dubbing it “a solution in search of a problem.” Chris Travers(Quote)
Andrew says:
Yes, it’s an adversarial piece. More than that, it is a shot across the bow, signaling that there is a serious constitutional issue. Nothing wrong with that.
I have yet to hear of any precedent for the House taking a single vote to pass two bills, only one of which is approved by the Senate, and the President nevertheless signing one of those bills into law. Maybe we haven’t heard of such a precedent because it does not exist. Andrew(Quote)
ELC says:
Thanks for the citation and quotation. ISTM, however, that the court was deciding another question: whether, in that specific case, the vote of the majority of the quorum was sufficient to pass the bill.
I think the part more germane to this discussion is this: “[The House] was in a condition to act on the bill if it desired. The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes....” The court assumed that “to act on the bill” is to vote on the bill. Right? ELC(Quote)
Sean says:
Andrew,
There is precedent for the House taking one vote but having that vote apply to a second piece of legislation. See my comment here. Sean(Quote)
midasear says:
Isn’t “many” generally understood to be a number somewhat larger than 3? The first recorded filibuster in the US Senate was in 1837. They’ve been used repeatedly to block controversial legislation ever since. Isn’t arguing that this currently constitutes an “abuse” 170+ years later sort of like arguing about the legality of the Federal Reserve Bank or the constitutionality of the Tennessee Valley Authority?
The real problem with modern practice is the development of the two-track process after 1970. Before that, ALL Senate legislative activity to a dead stop until a filibuster was resolved. This inflicted an ever increasing political price on both a bill’s backers and dectractors until someone caved or a compromise was found. The politics strongly discouraged use of the filibuster as a permanent blocking mechanism for all but the most controversial topics.
Filibustered legislation is now placed on the second, “inactive” track, allowing other matters to go forward. This has gradually turned the filibuster into a relatively painless way for 41 Senators to permanently block any legislation or appointment they want, for whatever reason.
/shrug
If it were up to me, cloture could be invoked by simple majority for sub-cabinet executive appointments and appointments to district courts and the numbered appellate courts. And debate on any legislation on the “inactive” track would be subject to vote by simple majority after 24 months and would then be sent back to the House. Routine matters would no longer be filibustered, and a determined minority could delay legislation until the next national election, giving the public a chance to weigh in with our votes. midasear(Quote)
second history says:
......just imagine the chaos that will reign if a large segment of the population views ObamaCare as illegitimate from a process standpoint.
A good segment of the population think Obama himself is illegitimate. second history(Quote)
second history says:
colbdt sez:
Looking for a Gupta / Gold article on the filibuster, I ran into Ezra Klein — How the filibuster was invented.
If you are still looking for it, here it is. second history(Quote)
TallDave says:
Each house is the judge of its own rules. If the Senate and House each rule that the a bill is passed, and the bills are identical, then the bills are passed. The internal procedural steps necessary to pass a bill are a political question by express constitutional mandate.
This clearly isn’t true. For instance, they obviously could not pass a bill saying “Everything Jonathon Adler says is henceforth declared to be a law passed by this body.” Each member must vote on anything that is going to become law. TallDave(Quote)
Mark Buehner says:
Sean:
and the joint resolution shall be considered as passed by the House and duly certified and examined
the problem in this case is that the sum is not a joint resolution. You aren’t taking two bills and combining them with 1 vote. You are taking two bills and voting once, and they remain two distinct bills, one of which goes to the president, one of which goes to the senate. That seems like a difference in kind to me. That’s not to say its either unprecedented otherwise nor unconstitutional, but I don’t think your example clears the way either. Mark Buehner(Quote)
epluribus says:
I am persuaded by Arthur Kirkland’s comments that the answer is not yet clear. I am sure, however, that all of this would be unnecessary in the absence of filibusters and threatened filibusters. If the Slaughter suggestion is implemented, the minority will predictably howl and wail that democracy itself has been assaulted, conveniently overlooking their own provocations. epluribus(Quote)
Vladtheimp says:
In addition to the issues raised in the article and in other comments, I still see an issue regarding the Constitutional requirement that revenue bills originate in the House. The Senate bill dictates taxes and the purposes of fund expenditures radically different in places than the House bill. I suppose that if the House passes the Senate bill it could be considered as concurring in an amendment of the bill that originated in the House, but it seems to be a “Cardinal Change” in the language of contract law.
However, taking it a step further under the “Slaughter” process appears to contradict that the bill they are voting on (or voting for the rule on) in fact originated in the House — all they would have to do is vote on their amended bill without attempting to amend it further.
The requirement for origination in the House is there for a reason, as is the requirement that it be passed by the Senate and then both Houses pass the same bill before it is presented to the President for signature.
This gaming of the Constitution, if permitted will likely have unintended consequences regarding the willingness of taxpayers to support what their representative form of democracy has degenerated into. Vladtheimp(Quote)
Arthur Kirkland says:
As anyone with experience judging moot court competitions (or anyone familiar with John Yoo’s government service) should confirm, that one advocate can string together a series of conclusory and self-reinforcing (in a vacuum, at least) assertions — heedless of countervailing points and authorities — toward a desired destination scarcely signals a serious issue.
(It also doesn’t signal the absence of a serious issue; in general, it is irrelevant to nearly anything except the author’s motivation, diligence or capability.) Arthur Kirkland(Quote)
Andrew says:
Sean, did both the Senate and the President approve both pieces of legislation? If so, then I have no objection. In the present situation, the President intends to approve one of the pieces of legislation, even though the Senate will not have approved one of the pieces of legislation. Andrew(Quote)
Andrew says:
At least Professor Adler found it sufficiently relevant to get a thread started here. Maybe that was the intent: to get people talking. Andrew(Quote)
Blue says:
That’s because those were always superfluous to the real issue–the taxation of labor union benefits in the Senate Bill. Blue(Quote)
Andrew says:
That would be a bigger problem if the Constitution said: “All bills for raising Revenue shall originate in the House of Representatives.” But actually, the Constitution says more: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Andrew(Quote)
Sean says:
In the particular example I cite, the concurrent resolution does not go to the president for approval because it is not legislative in character. (As I understand it, that’s how concurrent resolutions get around the ORV clause.) The joint resolution that the rule automatically creates upon congressional adoption of a congressional budget concurrent resolution is engrossed, considered as passed, and transmitted for Senate consideration. If the Senate approves of the joint resolution without change, as it did in the 110th Congress, it has passed Congress and is sent to the president. In the 110th Congress, it was signed and became Public Law 110–91. Sean(Quote)
RPT says:
See 2001–2006. We’ve been there, and it’s bad. RPT(Quote)
Andrew says:
If that’s what happened, Sean, then it seems very different from the present situation. There, the House was only voting for one thing that was legislative in character, but here the House would be simultaneously voting for two pieces of legislation (one of which would be signed by the President without the other being approved by the Senate).
One piece of legislation versus two pieces of legislation — that’s a big difference. Andrew(Quote)
Arthur Kirkland says:
Which could lead to revelation of a persuasive, authoritative analysis, and therefore be a great service. Arthur Kirkland(Quote)
Sean says:
What appears to be similar is one vote applies to two separate pieces of “legislation” (I use the term loosely). The House vote on the conference report to the concurrent resolution on the budget, and thus adoption of that concurrent resolution, is also deemed to be the House vote for passage of the joint resolution increasing the debt limit.
I see the debt limit example (called the Gephardt Rule) as entirely similar to the Slaughter Solution: two pieces of legislation disposed of in a single house by one vote. It’s immaterial that one piece of legislation will be sent to the other house and one will be sent to the president because it passed both houses in exactly the same form.
I make no distinction between the character of the items to which the single vote will apply. To me, the only relevant fact is that a single vote applies to more than one piece of legislation.
We need to be clear that the “original bill” and the “fix bill” are (or rather will be) two separate bills. The original bill originated in the House, was amended in the Senate, and is now in the House, the question being to concur in the Senate amendments (and thus pass the bill), further amend it and send it back to the Senate, or refuse to concur in the Senate amendments and request a conference with the Senate. If the House concurs, then the bill is passed as amended.
In the end, both houses will have to pass both bills in exactly the same form to get to the president. I see no problem with one house saying that the passage of the one is also the passage of the other, but only for the purposes of that house. I see no material distinction between this and the Gephardt Rule. Sean(Quote)
Andrew says:
Ah, but according to the Slaughter Solution, one house would pass both bills by a single vote, and the other house (the Senate) would pass only one of the bills, before one of the bills is signed by the President. Andrew(Quote)
Sean says:
Whoops, I had that wrong. Both houses passed their own versions, but it makes no difference to my analysis. Sean(Quote)
Sean says:
So? The Senate bill has already passed the Senate. House passage of the Senate bill without change sends it to the president. The “fix” bill will originate in the House, pass the House, and get sent to the Senate. Senate passage of the “fix” bill without change will send that bill to the President.
The problematic part is if the Slaughter Solution says this: The Senate bill is passed upon House passage of the “fix” bill, but the Clerk shall not transmit a message to the Senate of the House’s passage of the Senate bill until the House has received a message from the Senate that the Senate has passed the “fix” bill.
This debate is all very speculative. I’ve read several substantially different explanations of the Slaughter Solution. Until we see the language of the rule in print, it’s very difficult to know exactly what is planned. Sean(Quote)
sag says:
Some of you lawyers think you can talk this by the rest of us, but the jury is still composed of the American people.
We do not buy it. Any of it.
Whatever we have to do to make that clear to you, we WILL do.
And our authority is the Declaration of Independence. Read it again. THAT will override the Constitution at the end of the day. sag(Quote)
Andrew MacKie-Mason says:
People (including Prof. McConnell) seem to be misunderstanding both the nature and purpose of the proposed House rule.
The nature of it is that it allows two bills to be passed on a single vote. There is nothing wrong with that, and any quibbling with it is really just formalism. Two bills will be passed, one of them identical to the bill already passed by the Senate.
The purpose of it is not to provide “political cover” or anything of the sort for Democrats. The purpose is to ensure that the “fix bill” will in fact pass the House. There are Democrats in the House unwilling to pass the “original bill” unless they are assured that the “fix bill” is also passed by the House. This ensures that. Again, I explain this in more depth over in my space. Andrew MacKie-Mason(Quote)
Andrew MacKie-Mason says:
The only people trying to talk anything by you are the people trying to convince you that this is anything other than a legitimate way of passing a bill. Andrew MacKie-Mason(Quote)
Andrew says:
Agreed. But that “vote” will not have any effect unless the President approves the “vote” for both bills. See Article I, Section 7, Clause 3: link. Andrew(Quote)
Brett Bellmore says:
I find this somewhat implausible. Passing the “fix bill” in the House has no consequences at all, unless it also passes the Senate, where it’s unlikely to even come to a vote. Passing the “fix bill” and the Senate bill is functionally indistinguishable from passing the Senate bill alone.
The real fear in the House, as I understand it, is that once they’ve passed the Senate bill, the whole “reconciliation” process gets aborted, and the House goes to the fall elections to face the voters’ wrath for having passed the Senate bill. The fact that they voted for a “fix” that wasn’t going anywhere is hardly going to shield them from that wrath. Brett Bellmore(Quote)
Andrew says:
I disagree. Clause 7.3 is clearly distinguished from 7.2, which is the controlling clause for bills. This is not a “order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary”. The concurrence is necessary on the bill, not the vote. The procedure is an internal procedure within the purview of the House which then creates two bills that must be dealt with by the Senate and the President according to their own procedures.
7.3’s clear differentiation from 7.2 by basic principles of statutory construction means that it applies to “order[s], resolution[s], or vote[s]” which do not qualify as bills under 7.2. Else, at the end of 7.3 it would not include the “according to the rules and limitations prescribed in the case of a bill.” Andrew(Quote)
Andrew MacKie-Mason says:
Far from “implausible,” it’s the only reasonable explanation. It’s true, it’s not a perfect solution. The reconciliation bill must still pass the Senate. However, it’s wrong to say that passing the House is “nothing.” It’s an equally important step to passing the Senate. They want to make sure that that, at least, gets done.
They still have to trust the Senate to pass it, yes. But you’re wrong to characterize some progress as nothing. Andrew MacKie-Mason(Quote)
Ken Hahn says:
The Democrats don’t believe any limitation, constitutional or otherwise, applies to them. They will do whatever is necessary to pass socialized medicine and unless the Supreme Court intervenes Obama will have his new bureaucracy to staff with Democratic drones and members of unions that are essentially fund raising organizations for Democrats. There are many dishonest and dishonorable Republicans but honest Democrat is a contradiction in terms. Ken Hahn(Quote)
Andrew says:
The House vote would not simply be a vote on the Reconciliation Bill. It would also be a decision that HR3590 is passed. The whole purpose of Clause 7.3 was to use more expansive language than 7.2, in order to prevent evasion of 7.2. The framers saw all this coming. Speaker Pelosi is trying to evade the simple requirement in 7.2 that a bill has to be voted on by both houses and then approved by the President. Clause 7.3 is there to stop her from evading 7.2. Andrew(Quote)
Brett Bellmore says:
Andrew, I’m just pointing out that the “limiting step” for the fix is the Senate, not the House. Getting a fix the House likes through the House is pretty much a given; No filibuster there. The problem is the House doesn’t trust the Senate to actually DO anything with the fix, and that’s rational of them. The ideal outcome for the Senate is that the Senate’s own bill becomes law without amendments. Once the House votes it through, that happens without any further action on the part of the Senate.
There are really only two plausible goals here:
1. A (futile) attempt to create a process where the Senate has to actually pass the fix, or the original bill goes nowhere. But the only way the House can constitutionally manage that is for them to originate their own version, (Fancy that, a revenue bill that really originates in the House, instead of the Senate!) and send it to the Senate. Which the Senate doesn’t want, because they’d have to pass it with fewer Democratic votes than they had last time.
or, (And I think this more likely.)
2. An attempt to create plausible deniablity: House members who like the Senate bill a whole lot more than their constituents are looking for a basis to claim, after they’ve voted for it, that they were somehow suckered, and didn’t really intend for the Senate bill to become law. So they’re attempting to spread a lot of confusion over the process. Brett Bellmore(Quote)
DaveS says:
So, the House is going to pass Bill B, at which point Bill A will be “deemed” passed. The President must then sign Bill A, so that it will become law as required for the Senate to reconcile it. Would Bill A–which is signed by the president and becoming law–pass a vote in the house?
Shady, shady, SHADY stuff. DaveS(Quote)
Blue says:
The single vote passes two bills, that’s true. But the Senate HC bill is law regardless of what the Senate action is on the House Fix bill. It’s impossible to make the act of passing one bill conditional on passage of another. Blue(Quote)
Octavian says:
Since Congress and the President are no longer governed by the US Constitution, We the People are likewise no longer governed by the US Constitution. Octavian(Quote)
Andrew MacKie-Mason says:
No, 7.3 is meant to extend the requirement of the President’s signature to votes, orders, concurrent resolutions, etc. that are outside of the scope of the “bill.” It was not meant to infringe upon Congress’ constitutionally granted authority to determine its own procedures. Andrew MacKie-Mason(Quote)
Bruce Hayden says:
Well, looks like cover to me, esp. since there seems to be no reason that the Senate will pass the reconciliation bill. Remember, by the time they see it, their bill will be on the President’s desk.
I see it as a way for Democrats whose constituents don’t like the Senate bill to pretend to pass something that removes the stuff they don’t like in that bill in the attached reconciliation bill, but knowing that in real life, it probably will still be there when the dust settles. So, for example, Stupak and his pro-life group may get anti-abortion language put into the reconciliation bill. They vote for the two bills together, and can go back to their constituents (and Bishops) and say, I voted for the anti-abortion language, and it isn’t my fault that it never made it into law. Blame the Senate for that for not passing the reconciliation bill.
Also keep in mind that not only is there no reason for the reconciliation bill to get serious attention in the Senate, but even if it does, there are no guarantees about what will be ultimately passed. The Republicans are likely to challenge most of the provisions in it on the grounds that they don’t fit under reconciliation. Winning just one of those would logically send the reconciliation bill back to the House for their approval (since both Houses have to pass the same thing). And the more that gets through under reconciliation means that the Republicans will have an even easier time getting those parts of repeal through under reconciliation when they get back into power. Bruce Hayden(Quote)
Andrew MacKie-Mason says:
I’m not sure I agree with you on that, and I don’t see anything in the Constitution banning that kind of provisional vote. However, it’s also irrelevant because the rule in question, as discussed (keep in mind it hasn’t even been written yet) wouldn’t make it contingent on anything done by the Senate, just things done by the House. Andrew MacKie-Mason(Quote)
DaveS says:
Tell me if I’m getting this right...
So the house is to pass Bill B, which causes Bill A to be “deemed passed” by a rule. Obama will then sign Bill A into law, as required for Senate to use reconciliation to change Bill A into Bill B. Would Bill A–which is signed and becomes law–pass the house if they voted for it? No. That would seem to be the problem here.
We have a bill which will become law, but which couldn’t/wouldn’t pass a vote in the House. And some people think this is OK. DaveS(Quote)
Andrew MacKie-Mason says:
Whatever odds you think it has of passing in the Senate, many Representatives apparently disagree. I do too. What we saw back when the Senate was considering the bill was not that there was much opposition to a House-esque bill from the majority of Senators. Instead, a few gained significant power because they needed 60 votes. There were probably easily 55, 56 votes for the House bill in the Senate.
As for your contention that there is no reason for the Senators to want to pass the fix-it bill...that’s just irrational. Their goal (the majority, at least) was to pass a good bill. They want to fix it as much as members of the House do.
Now, I’m afraid, I’ll have to bow out. I don’t have the time to keep up with the frantic pace of discussion in the Volokh comments that turns this into more of a place of ranting than the place for intellectual debate that the quality of the intellectualism in the blog itself demands. I prefer a slower pace where people have more time to consider each others’ arguments. Andrew MacKie-Mason(Quote)
Andrew says:
To suppose that Clause I.7.3 does not apply to “bills” that are voted on would be no different from supposing that Clause I.7.2 does not apply to “votes” that are taken on bills. Both suppositions are equally mistaken. I agree that Congress has constitutional authority to determine its own procedures. In this instance, I believe I.7.2 and I.7.3 do not allow the President to give any effect to this House vote unless the Senate fully concurs in the House vote (i.e. approves the Reconciliation Bill). Andrew(Quote)
SteveinCH says:
I don’t think this is right. The issue is not the filibuster in the Senate per se, it’s that the House doesn’t want to pass the Senate bill. It is possible to argue that a conf committee or ping pong approach could be used in the absence of the filibuster but I don’t think arguments that the filibuster was not intended to be used by the minority in cases where substantial Federal programs are being created, including the first federal purchase mandate are terribly compelling. If the filibuster was not intended for situations such as these, for what situations was it intended.
Partisans on both sides have cheered the use of the filibuster to prevent the appointment of appeals court judges and cabinet officers. I think it quite reasonable to assert that the HCR bill is a matter of more substantive merit than either of those cases.
I’m not a legal analyst, I’m a policy wonk and from that perspective allow me to say that the Slaughter solution is worse from a public perspective than reconciliation. In effect, the public believes that you have to vote on a bill to pass it. Remember Schoolhouse Rock anyone? The argument that you can pass a bill by a rule that deems it passed, even if perfectly legitimate, is a losing argument in the court of public opinion. There’s not even a direct parallel to fall back on. The ones suggested on this site upthread are silly...sure the Senate passes a bill by unanimous consent but that isn’t even the same thing. That can be justified as saying, if no single Senator objects, it’s reasonable to conclude that they all would have voted yes. There’s no common sense way to explain the Slaughter rule other than the political explanation that House members wanted to pass the Senate bill and still tell you they didn’t vote for it.
That’s just not going to fly, Constitutional or not. SteveinCH(Quote)
sag says:
These lawyerly arguments for linguistically deeming something to be what it is not and thus making it Constitutional remind me of the following, attributed to Abraham Lincoln:
How many legs does a dog have if you call the tail a leg?
Four.
Calling a tail a leg doesn’t make it a leg. sag(Quote)
SteveinCH says:
Andrew, that’s just not right. The worry in the House is that the Senate won’t pass the fix bill, not that the House won’t pass it and the House action does nothing to ensure the Senate passes the fix bill.
Whether you are right or I am, I’m willing to bet you a nice Chicago-style pizza that the people will by and large see this as an attempt by the House to pass a bill without voting on it. I would hate to be a House member in a debate when I was asked, “How did you vote on the Senate bill when it passed the House?” There is simply no good answer. You didn’t vote to pass it nor did you vote not to pass it and if you have to get into the whole deeming thing, you’re done. You can’t even say there wasn’t really a vote on it in the House since that leads to the follow up question, “Well how did a bill pass the House if there wasn’t a vote on it?”
People, rightly or wrongly, have pretty simple views of things like passing bills. The Slaughter solution violates what everyone was taught about how Congress works and thus, it will be seen as illegitimate regardless. SteveinCH(Quote)
Repeal 16-17 says:
Precisely. Even if the Slaughter Rule (in whatever form it takes) is upheld as Constitutional, the People will believe something illegitimate was done. For the House Democrats that should be close to as important as is whether the Slaughter Rule would be Constitutional (Constitutionality should always be most important). Repeal 16–17(Quote)
DaveS says:
People, rightly or wrongly, have pretty simple views of things like passing bills.
And they think anyone who makes something far more complicated than it needs to be is probably up to something... DaveS(Quote)
Bruce Hayden says:
And their definition of what is a good bill is obviously the bill that they passed and is now in the House. They obviously believed that it was a better bill than the House bill, since the House had already passed their bill, and the Senate decided to do something else anyway.
So, if they feel like it needs to be fixed, then why did they pass it in the first place?
Let me point out the obvious, that they had 60 votes for the Senate bill, and thus, it was more to their collective liking than the House bill.
I will agree that removing some of the more egregious bribes may be of interest to some of the Senators, BUT, including anti-abortion language, as will be likely in the House version, will not be.
And, the only relevance to House members believing that the reconciliation bill will be taken seriously by the Senate and passed is to their sanity. It has nothing really to do with whether or not it will actually happen. They aren’t Senators. And they also probably believe that passing the Senate bill, and possibly the reconciliation bill, will help the Democrats come November. Despite poll after poll, a lot of the Democrats in Congress seem to be in serious denial about the level of opposition to their version of health care “reform”. (and their leadership, esp. in the House, seems to be feeding this denial). Bruce Hayden(Quote)
raoul says:
Reconciliation is a side car of a bill passed in the Senate-essentially amendments– under those rules for that part of the bill-the president gets to sign one omnibill that includes the X+Y of one side and the X+Y of the other. If Slaughter is unconstitutional something approaching 40% of the bills signed by Bush are unconstitutional. Those arguing are on the the losing side of HCR and are simply throwing spaghetti to the wall. Any good lawyer can always articulate arguments to its side. Frankly, I am more troubled with the individual mandate from a constitutional POV and hope the bill (X+Y) has a severability clause. raoul(Quote)
MJW says:
If the reconciliation changes are considered amendments to the senate bill, then for the bill to pass, the senate must pass the original bill with the amendments added. Since you don’t explain what aspect 40% of the bills signed by Bush have in common with the Slaughter scheme, I’m not clear on why they’d be unconstitutional. MJW(Quote)
raoul says:
Wilson Center via Swampland on self execution bills (Slaughter):
“When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995–1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.”
On the Senate: how parts of the bill are passed is immaterial as long as a whole is passed. Because only certain types of amendments are allowed by reconciliation– those would pass that way. Thus the whole bill will have been passed by Senate Rules. raoul(Quote)
raoul says:
What I find interesting is how many constitutional scholars exist as I found few when Bush was trampling the constitution (even the Supreme Court said so)- going to war against Iraq? Did I hear a war declaration as proscribed by the constitution? Let’s not even touch religious entanglements. On and on. Those who think that the process will make the “people” unhappy are not well versed in modern politics. The people don’t care about the process, the people want results. It is this metric that will determine the success of HCR. When Delay kept a House vote open for four hours or stripped the minority of its rights, the public didn’t care. Even the nuclear option proposed by Lott created very little public awareness. And those people here who are angry are not angry by the process — they are merely following talking points provided by their leader because they disagree with the bill. Elections have consequences. Get over it. raoul(Quote)
GaryC says:
I vaguely recall that one of the changes that Senate Majority Leader Reid made to the Bacchus bill was to add a provision declaring that any attempt to modify or repeal the bill would be automatically out of order. Leaving aside whether any provision like this could bind a future Congress, this provision, if it is still in the Senate bill, would cause a major logical disconnect.
The Slaughter rule would “deem” the Senate bill passed based on some activity. This activity might just be the House vote on a reconciliation package, but it might include Senate acceptance of the entire reconciliation package, unchanged. We will not know until the House actually publishes the rule.
If it is a simple rule, and the Senate bill is available for the President’s signature, then as soon as he signs it the reconciliation bill is dead. It would be trying to modify a bill that is unalterable. But if the President waits to sign the Senate bill, then there is nothing in law for the reconciliation package to affect.
If it is a contingent rule, then the contingency is impossible to satisfy, so the Senate bill never passed. But of course, if the Senate bill never passed, then the contingency is now possible to satisfy, ad infinitum. This way lies madness. Or maybe it is sitting on the ground crying.
Does anybody have some detailed videos of sausage-making that we could watch instead? This is too much like an episode of Star Trek The Original Series. GaryC(Quote)
MJW says:
The problem is, the self-executing rules in the past don’t appear to do what the Slaughter scheme would attempt to do. As described in this CRS Report to Congress, they amended the bill under consideration, they didn’t purport to pass a separate bill. However, reading the CRS report does suggest you may be on the mark with your original characterization of the process as amending the original bill by incorporating the senate bill into a new bill with the reconciliation modifications. That would imply the entire amended bill must first pass the senate to become law. MJW(Quote)
Butthead says:
I’m not a lawyer and so not really in this league, but doesn’t HC Reform count as a Bill of Revenue (Article I, Section 7, Clause 1) and so Senate to House to President doesn’t work? I know there are tricks to get around this but have they covered this? Butthead(Quote)
benji says:
Yes, it was another bill that passed the House. Then it was amended in the Senate in a way that deleted the entire bill and inserted the new text. This is standard practice.
http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=&packageId=BILLS-111hr3590EH
http://www.opencongress.org/bill/111-h3590/show
http://www.govtrack.us/congress/bill.xpd?bill=h111-3590 benji(Quote)
Brett Bellmore says:
The bill the House had already passed was a completely unrelated bill, the only part of it that was retained for this bill was the House bill number. This revenue bill originated in the Senate, and has never been voted on by the House.
And, yes, Benji, I’m aware it’s been done before. That doesn’t mean it’s constitutional, just that it’s unconstitutional per one of those parts of the Constitution the courts find it inconvenient to enforce, like the quorum clause. Brett Bellmore(Quote)
cboldt says:
– That might fly for renaming post offices, but it certainly wouldn’t for major legislation. –
It flew last week for passing S.1147 — Prevent All Cigarette Trafficking Act of 2009
Google search for the phrase, “Passed Senate with an amendment by Unanimous Consent” cboldt(Quote)
SteveinCH says:
You’re still missing the point. First, unanimous consent isn’t the same as a self-executing rule so citing references doesn’t change anything. Second, and far more importantly, it’s not how the people think things do or should work. SteveinCH(Quote)
cboldt says:
– You’re still missing the point. First, unanimous consent isn’t the same as a self-executing rule so citing references doesn’t change anything. Second, and far more importantly, it’s not how the people think things do or should work. –
There was more than one point. My citation to the tobacco bill was a response to the contention that UC passage results in unconstitutional bills, and while that might be fine for post offices, it isn’t fine for “major bills.”
I agree that passage by UC isn’t the same as a self-executing rule. On a self-executing rule, there is actually a vote on the rule, but not a vote on passage (passage being self-executing on agreeing to the rule)
I also agree that the Slaughter Rule is creating a public ruckus. But that doesn’t make the Slaughter Rule unconstitutional.
Separately, I notice just above a comment that the Slaughter Rule might have the effect of combining HR 3590 with the reconciliation package (in form), and that the Senate would pass the combination under reconciliation. This was basically my belief too, but not having the language of the Rule, any belief (mine included) is based on speculation. News and politicians’ characterizations of legislative text are apt to be technically incorrect, or technically indefinite. cboldt(Quote)
Dean Chance says:
Given the poor track record for passage of these “comprehensive” reforms, you’re probably right in betting against harmonization of Senate and House reform bills.
It is worth noting, however, that you’ve got a significant number of Senate Democrats whose thinking is more in line with the House version than their own Senate version. (Take Al Franken, please.) Under reconciliation, you can lose nine Senate Democrats and still pass the bill, and I think I could find fifty Senate Democrats to support whatever hard left reconciliation bill comes out of the House.
Pelosi’s idea of a least-worst option. Dean Chance(Quote)
Dean Chance says:
Perhaps, but the inclusion of these special deals renders the “smokescreen” gambit useless for embattled House Democrats.
My braindead Rep Betty McCollum felt the need to generate faux outrage and even a few tears at a town hall meeting over these special deals — she knows how poorly they play with voters. Dean Chance(Quote)
Mark Buehner says:
Did I hear a war declaration as proscribed by the constitution?
Um... yes?
http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/content-detail.html Mark Buehner(Quote)
MJW says:
You missed my point, which was that passing bills by unanomous request without a quorum (...with two Senators in the chamber...) is unconstitutional. As it clearly is. MJW(Quote)
MJW says:
Let me add, as far as I can tell unanimous request is just another way of conducting a voice vote. Are there any nays? — if not, it’s passed. I don’t see any problems constitutionally. MJW(Quote)
MJW says:
One more comment on unanimous request. I do think it’s less than ideal, because it wouldn’t be acceptable if interpreted in my original formulation “are there any nays?” There could, for example, be one yea and 200 not voting. If interpreted as the perhaps more reasonable “is there anyone who would not vote yea?” it would be okay. It’s not much harder to conduct a normal voice vote, which seems preferable to me. MJW(Quote)
MJW says:
It just dawned on me that my “one yea and 200 not voting” example makes no sense, since it’s too many for the senate and too few for the house. I hope the point is clear despite the silly number. MJW(Quote)
epluribus says:
MJW:
No–certainly not “clearly.” You can’t tell if there is a quorum by watching CSPAN or even creeping into the Senate gallery and watching. A senator must first suggest the absence of a quorum, and the clerk must then call the roll. It can take several hours to call the roll if they really want to slow it down, and during that time senators are summoned to the chamber to answer. Only when the call is completed and it is determined that fifty-one senators did not answer is it clear that there no quorum. Until then, Senate business may (and routinely does) proceed on a constitutional basis. The delay attendant on calling the roll is part of the obstructionism that makes filibusters so effective. Quorum calls can be repeated over and over again. Only one senator need be on the floor to do so. Fifty-one senators need to be there to defeat them. epluribus(Quote)
benji says:
I wasn’t arguing for or against it as constitutional or even good/bad. Just pointing out that the Senate has been doing this for a long time and neither party would be interested in changing it, as well as linking to the exact information. And in part to ward off “IT’S UNPRECEDENTED!” or “BUSH/CLINTON DID IT!” benji(Quote)
MJW says:
epluribus, cboldt’s premise was that there are two senators passing bills by unanimous consent of themselves. That’s clearly unconstitutional. MJW(Quote)
cboldt says:
– cboldt’s premise was that there are two senators passing bills by unanimous consent of themselves. –
That’s not my premise, and I don’t believe it reflects reality either. Senators aren’t “blindsided” by swift and surprise “UC votes.” Senators have the opportunity to object to passage. But they are not in the chamber when the UC agreement is announced and implemented.
Still, no quorum is present, as a matter of fact. One is “deemed” to be present by virtue of absence of formal notice that there is an absence of a quorum. Informally, it’s obvious that there are two to maybe five senators in the chamber when the business of the day is being concluded.
– Quorum calls can be repeated over and over again. Only one senator need be on the floor to do so. Fifty-one senators need to be there to defeat them. –
That’s not true either. The long quiet periods in the Senate are by UC agreement to conduct the scripting out of view of the public. What happens in the chamber is highly scripted theater. It takes about 10 minutes to call the roll and ascertain the absence of a quorum — see “hot quorums” for example — and these are called with fewer than 51 Senators in the well at the time the quorum call started. cboldt(Quote)
cboldt says:
– Only when the call is completed and it is determined that fifty-one senators did not answer is it clear that there no quorum. Until then, Senate business may (and routinely does) proceed on a constitutional basis. –
The reverse is true. While a quorum call is underway, regular business (with a couple exceptions noted in Rule VI) may NOT be conducted. Notice when a Senator starts to speak, and is reminded that the Senate is in a quorum call. He or she will ask that the quorum call be lifted. Until that happens, the Senator is not permitted to speak.
Senate Rule VI
3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate.
4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order. cboldt(Quote)
ohwilleke says:
Have you not heard the expression IOKIYAR? Democrats are far more often inclined to believe that they are limited by some process limitation than Republicans.
What new bureacracy? The existing IRS that will provide the main teeth for the bill? Private insurance companies that will provide the tax incentive encouraged health care coverage (without a public option)? The existing Medicare bureaucracy which will apply different provider compensation rules to the same providers? The existing Medicaid bureaucracy that is run by state governments? Existing providers who will receive private insurance payments and Medicare and Medicaid payments?
Laughable. ohwilleke(Quote)
MJW says:
Cboldt, you did say:
I don’t really see how that doesn’t support my statement that “cboldt’s premise was that there are two senators passing bills by unanimous consent of themselves.” I suppose if you want to be picky you could say it was only the treaties that were passed by unanimous consent, and the post office bills were passed by voice vote. That seems like a distinction without a difference. MJW(Quote)
cboldt says:
– I don’t really see how that doesn’t support my statement that “cboldt’s premise was that there are two senators passing bills by unanimous consent of themselves.” –
The general point of my statement was that passage was accomplished with something other than votes. I assumed too much, to wit, that the reader was familiar with the use of UC to pass bills, and that UC is obtained out of sight and often executed with a small number of Senators present in the chamber.
After I made that comment, you asserted that the passage was unconstitutional due to a quorum deficiency — a point that hadn’t really entered my mind on account of my assumption that probably ALL senators did in fact consent (or at least not object) to passage.
All sorts of bills are passed by UC, but I can’t recall a time when a treaty was passed other than by at least a [sometimes “phony” in that only one senator was voting] voice vote, other times by roll call.
At any rate, UC is not a vote — that was my point. The quorum issue is an interesting factoid, in that the Senate “deems” a quorum to be present, but quite well sees to it that each member is given an opportunity to object, weigh in, etc. There are no “surprise votes in the middle of the night” games. At least, not yet. cboldt(Quote)
cboldt says:
Oh — I wasn’t offended that you mistook my premise. When I saw your comment, I just wanted to let it be known to anybody who bothers to read this deep in a thread that I didn’t presume 2 Senators were somehow getting their will over the other 98, i.e., that my premise was that “unanimous consent” meant “between only those of us now in the chamber.”
My premise was that the formality of expressing assent to a bill can take forms that are unexpected; like one dude talking to another dude who is “presiding” over a monologue. The record shows passage, and that’s enough. cboldt(Quote)
cboldt says:
The record shows quorum, and passage, and that’s enough. The presence of quorum is a legal fiction. The passage is, as far as I know, genuine. cboldt(Quote)
Andrew MacKie-Mason says:
I still don’t have the time to get involved in the exhausting debates typical of VC comment threads, but I responded to this comment on my own blog. (I’m honestly not trying to use this thread for shameless advertising, just to let DaveS know that I’ve responded to him in a forum where I feel more comfortable.) Andrew MacKie-Mason(Quote)
RINO in Name Only says:
Nope, the Constitution says nothing about how either house determines that a bill has been passed, just that it determines its own rules (see Article 1, Section 5). They absolutely could declare Jonathan Adler to be House Dictator. Of course, it is very unlikely they would do that, since that would entail giving up their own power while at the same time infuriating the public. And of course, that would not make anything he says a law, just a bill that the Senate has to pass as well, and that the President has to then sign.
If the president vetoes, then, and only then, do you have to have to have a vote (2/3 in each house), as per Article 1, Section 7. RINO in Name Only(Quote)
RINO in Name Only says:
I think this is right, though I’m not totally sure as I am not a lawyer or any kind of expert on this stuff.
I just posted a reply to your post over there, but I’ll put up some of it here as well, not as a reply to you, but rather as a general echoing of DaveS’s comments about it being shady:
My problem with the Slaughter strategy is is that it is a dishonest maneuver, not that it is necessarily unconstitutional or anything.
What this does in practice is it lets the House take an action that allows the Senate bill to become law with no guarantee that the “fixes” that they vote for will also become law. In other words, it creates a fiction that they are voting for an entire package, when really they aren’t — the senate bill is not, in the end, “bound” in any way to the reconciliation bill. But the hope among many in the house is presumably that they can vote on the “package”, and then if the reconciliation part dies in the senate, their hands are clean. RINO in Name Only(Quote)
cboldt says:
– What this does in practice is it lets the House take an action that allows the Senate bill to become law with no guarantee that the “fixes” that they vote for will also become law. In other words, it creates a fiction that they are voting for an entire package, when really they aren’t — the senate bill is not, in the end, “bound” in any way to the reconciliation bill. –
I believe this is false. The “deemed passed” fiction is an internal working of Congress, and will not result in the (unamended) Senate bill being in condition for presentment. That they are voting for “HR 3590 + reconciliation” is not a fiction. I believe the language of the reconciliation resolution will reveal this. cboldt(Quote)
RINO in Name Only says:
If this is true, then that is quite reassuring. I hope you are right (and you probably are, since I’m an amateur at this stuff). RINO in Name Only(Quote)
MJW says:
I didn’t mistake your premise. I pointed out that if only two senators were on the floor of the senate passing bills or treaties, they were doing so in defiance of the constitution. I’ve had it with this discussion. In the unlikely event anyone is following this exchange, they can read your original comment, which I quoted just above, and decide who’s correct. MJW(Quote)
cboldt says:
– I didn’t mistake your premise. I pointed out that if only two senators were on the floor of the senate passing bills or treaties, they were doing so in defiance of the constitution. I’ve had it with this discussion. –
I know what you pointed out, and I know you asserted the result was unconstitutional (due to q quorum deficiency). But it is flat out false that my premise is or was that unanimous consent means “unanimous ONLY among those on the floor.” Your claim that “cboldt’s premise was that there are two senators passing bills by unanimous consent of themselves” is false. That is in fact, not my premise. Right or wrong, when I use the term “unanimous consent,” I mean that the entire body of the Senate, given an opportunity to object, does not.
And if you decide to misstate what I believe (or what you take as a “premise” of my position, when I make the inevitable imprecise contention) in the future, and I see it, I’ll say what’s on my mind then, too. cboldt(Quote)
Marcus says:
Seems simple to me that merits of using the enrolled bill rule, based on its expressed purpose, is a very faulty response to any Constitutional challenge. The purpose being employed by Democrats is arguably not to “properly adopt the bill”. It is to obfuscate the voting process. Prior actions of congress, irrespective of politics, are also not justification. There is also in my mind a question regarding legality of the proposed changes, which is an issue that has not been raised (harder to make that argument, but worth some observation)
The Constitution is very clear on how a bill becomes law– Madison was very specific in his writing. The legislature can not just simply abrogate the Constitution in order to pass a bill and then as defense use the enrolled bill argument. There is a defined Constitutional process. This question is more about pushing the limits of the enrolled bill rule where it intersects with defined constitutional process. Frankly, that is a very important point for the court to define, that is, where does the enrolled bill rule end and constitutional process begin? I don’t really see a precedent for that, nor have we every really needed to examine it– until now. That, in and of itself, should raise questions in the ordinarily curious legal mind.
All in all, this deserves a concise, clear opinion by the court. IMO. Marcus(Quote)