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.

cboldt: Oh — I wasn’t offended that you mistook my premise.

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.

cboldt: – 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.

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).

DaveS: 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.

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.

Andrew MacKie-Mason:
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.)

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.

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 lawbill passed by this body.” Each member must vote on anything that is going to become law.

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.

DaveS: 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.

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.)

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.

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.

Ken Hahn: The Democrats don’t believe any limitation, constitutional or otherwise, applies to them.

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.

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.

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?

There are many dishonest and dishonorable Republicans but honest Democrat is a contradiction in terms.

Laughable.

Mr. REID. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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.

Brett Bellmore: 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.

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!”

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.

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.

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, that doesn’t make the Slaughter Rule unconstitutional.

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.

Um… yes?

http://www.gpo.gov/fdsys/pkg/PLAW-107publ243/content-detail.html

Blue:
That’s because those were always superfluous to the real issue–the taxation of labor union benefits in the Senate Bill.

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.

Mark Buehner: 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.

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.

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.

Pelosi’s idea of a least-worst option.

cboldt: – 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”

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.

Bruce Hayden: 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.

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.

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

raoul: 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.)…

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.

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.

“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.