Stanford’s Michael McConnell thinks the so-called “Slaughter Solution,” through which the House of Representatives to pass the Senate health care bill and a reconciliation package of amendments with a single vote, is unconstitutional. Yale’s Jack Balkin is not so sure. He thinks the “Slaughter Solution” — what he calls “deem-and-pass” — could be done constitutionally, but if the House complies with the applicable constitutional requirements, it might not provide House Democrats with the political cover they seek. He writes, in relevant part:
Despite Judge McConnell’s concerns, which are textually well founded, there is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule. . . .
The structural constitutional reason for this requirement is that members of the House must not able to avoid political accountability for passing the same bill as the Senate. The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, “oh we didn’t pass X; that was the Senate’s decision.” If the House doesn’t accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law. . . .
Deem and pass may make some members of the House feel better by providing a sort of fig leaf, but to be constitutional the process cannot rid them of political responsibility for passing the Senate bill. If it did, they would not have created a valid law.
PubliusFL says:
So what if one bill makes it to the President but the other never does? That seems to be a possibility under the Slaughter Solution as Speaker Pelosi is considering it. It’s pretty unclear whether Prof. Balkin would agree with McConnell that this version of the Slaughter Solution is unconstitutional or not.
March 16, 2010, 9:37 amcboldt says:
Whether or not here are two bills depends on the contents of the rule, and the contents of the reconciliation package. If the rule deems HR3590 to pass, and the reconciliation package changes the bill denominated HR3590, then there is only one bill. The Senate then can either pass the reconciliation package, bringing it in agreement with the House, and also satisfying the requirement that both houses agree to the same bill; or it can reject or change the reconciliation package, in which case it is NOT in agreement with the House. The House conditions ITS acceptance of HR3590 on ITS acceptance of the reconciliation package.
March 16, 2010, 9:38 amPJens says:
This method of making law stinks. Is this going to be the new norm? In the future will all laws be made this way? In fact, has Congress been doing it wrong all these years?
No, Slaughter is a gimmick designed to make representatives feel better about doing something they know goes against their people.
Congress ought to be going the other way in voting on this huge legislation. Each member ought to be required to vote by public signature one at a time.
The bottom line though is that hometown voters have to hold politicians responsible for their actions, no matter how much smoke and mirrors is being used to fool us.
March 16, 2010, 10:31 amMark Buehner says:
That wouldn’t make sense politically, because the Senate isn’t going to accept the House’s revisions without question. So not only are you adding a vote, you’re adding two votes when the Senate’s revisions come back to the House. That’s not going to happen. If they are serious about getting this done this week its logistically impossible- the Senate can’t vote on reconciliation in a day or two due to their rules.
All this is is a political move so the House can claim they have forwarded their revisions to the Senate, and any member that doesn’t get them acted on (which is likely) can claim the Senate double crossed them (improbably, but any port in a storm). Meanwhile, the Senate bill will be signed by the president. If you accept the logic that these are two separate bills, the Senate bill shall be forwarded to the president if it is passed in the House. Notwithstanding anything the other bill says. The House can’t create an ‘if/then’ catch with a second bill that will affect the first bill automatically (unless it too is approved by the senate and signed into law).
In other words, there are two bills. The Senate bill becomes law, the House revision bill is shuttled off to the senate to an uncertain future.
March 16, 2010, 10:59 amRDanko says:
Even if the general consensus is unconstitutionality, my question is whether the courts would actually strike down the law. The blowback may be enough for a court to exercise extreme deference, making the point moot.
March 16, 2010, 11:14 amPeteP says:
Smoke and mirrors aside, the bottom line is, if the Senate bill passes the House, via whatever process, then the people who voted for that process did so knowing the end result would be enactment of the Senate bill into law. They will find out that voters are not stupid enough to fal for the line ‘I didn’t vote to pass the Senate bill, I only voted for ‘the rule’ that passed it.
McConnell mistates the facts when he says “The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills,”. Clearly factually incorrect. at that point, there is ONE bill the President may sign, the original Senate bill. The other ‘sidecar’ bill will still be wending it’s way through process to the Senate for amendment and vote, etc.
The Slaughter Solution is, as he says, a fig leaf. And a very very small one at that. Not nearly enough to hide the merchandise from the voters.
March 16, 2010, 11:16 amcboldt says:
– the Senate can’t vote on reconciliation in a day or two due to their rules. –
March 16, 2010, 11:24 am20 hours of debate.
– The House can’t create an ‘if/then’ catch with a second bill that will affect the first bill automatically (unless it too is approved by the senate and signed into law). –
I think the “unless” is what’s in play. If the reconciliation language modifies what is proposed law under HR 3590, then the Senate can’t forward unmodified HR 3590, and claim that unmodified HR 3590 is what the House passed.
I do agree with your contention that this is apt to die in the Senate. Our difference is “what” dies. I say the whole enchilada dies there, you say HR 3590 lives on and becomes law, upon passage of the Slaughter Rule.
onslaughter says:
I’m not versed in this area of law but Balkin’s idea has intuitive appeal: if the House votes for something saying “we are rubber-stamping the text of the existing Senate bill” then they’ve voted for specific text, even if via incorporation, and are politically responsible. If their vote is, “we are rubber-stamping a reconciliation bill that’s not yet drafted / in final form” I think that’s a constitutional problem.
Yeah– I’ve got a big, big problem with that.
March 16, 2010, 11:31 amDanube of Thought says:
I think that under Marshall Field v. Clark, the Court won’t look behind the attestations of the Majority Leader and the Speaker that whatever the president ultimately signs was duly and properly passed. Consider this::
“It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form in which it was signed by the presiding officers of the two houses, and approved by the president. It is said that, under any other view, it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution. Judicial action, based upon such a suggestion, is forbidden by the respect due to a co-ordinate branch of the government.”
In short, the Field Court considered it unthinkable, and thus impermissible under the law, that the presiding officers would be engaged in precisely the sort of conspiracy in which Pelosi and Reid are openly engaged today.
March 16, 2010, 11:40 amDerHahn says:
20 hours of debate. has no relationship to a 24-hour day.
March 16, 2010, 11:40 amArthur Kirkland says:
I still have not seen the analysis I would consider reliable, but Prof. Adler may yet create one by patching together the available materials.
March 16, 2010, 11:44 amMark Buehner says:
I say the whole enchilada dies there, you say HR 3590 lives on and becomes law, upon passage of the Slaughter Rule.
Well, I stated that on the assumption that they use the Slaughter Rule. In reality I don’t think that will happen. If it DID happen, the only plausible reason to use the Slaughter Rule is to advance the Senate bill to the president. If that isn’t the goal there is no reason not to simply revise the Senate bill singularly and return it to the Senate. I think the constitutional question is whether if the Slaughter Rule was invoked the House can vote on 2 different bills with one vote, as opposed to 1 combined bill or a bill and some other House action.
March 16, 2010, 11:47 amPubliusFL says:
Why would the Senate have to make any claim about what the House passed? I thought the Clerk of the House would prepare the enrolled bill and send it to the Senate. When the President (or President Pro Tem) of the Senate signs the bill, it just indicates that the bill accurately reflects what the Senate passed. The Speaker of the House is responsible for signing on behalf of the House.
March 16, 2010, 12:24 pmmkpowers says:
I disagree. There might be huge fallout if the court were to rule that a particular mandate was unconstitutional because it exeeded federal authority. This would be a huge issue because it would take federal health care legislation off the table without constitutional amendement. But if the court simply rules that the Legislature didn’t follow the required due process, that is something that the Legislature could fix by following the right process. This is arguably what the due-process clause was really meant to address. I can’t see the public being too offended by requiring the Legislature to jump through the proper hoops before doing something as important as what they are trying to accomplish.
March 16, 2010, 12:24 pmRodger Lodger says:
Is this justiciable, i.e., would the federal courts rule on the merits of the constitutional issue?
March 16, 2010, 12:28 pmhugh says:
What would be necessary for the courts to look behind the attestations of the Speaker and the President pro tempore? Ignoring a scrivener’s error is one thing, but what if the Speaker and the President pro tempore were to insert a significant change in the bill before attesting to it and forwarding it to the President?
March 16, 2010, 12:43 pmAndrew says:
I think this is Balkin’s key point. Tf the House uses the proposed “Slaughter Solution” then the President cannot sign only one of the two bills before the Senate has passed both bills.
The Constitution says:
So, if the House votes on two bills at once, the President must entirely 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 (i.e. which bill) of the House vote to approve, and the House vote cannot have any effect unless the President approves it.
March 16, 2010, 12:52 pmLarryA says:
The totally stupid part of all this political maneuvering is that if health care passes everyone in the world will still know specifically whose hands are dirty.
March 16, 2010, 12:53 pmPolitical Observer says:
While the action outlined by Mr. Balkin may seem to satifsy the technical aspects of the Constitution, it stll leaves a awfully sour taste in the American people. They understand the Constitution to mean that a vote is a vote and these procedural actions are an trashing of our constitutional process. From a voter’s viewpoint this “trickery” only digs the hole deeper for these scoundrels.
The other problem with this tactic is the Senate parlimentarian’s ruling that the first bill must be enacted into law before reconcilation can be applied in the Senate. The Slaughter solution assumes that the Senate has passed their changes via reconciliation and then the rule folds the two together with the vote on the reconiliation bill being the vote that deems the other bill passed. Of course the Senate could chose to i ignore it’s own rules but I believe that would present a legal challenge over the process and legitimacy of the process. I’m not sure if the courts would step in an rule on whether or not the Senate must follow its own rules but in absence of any challenge and ruling letting the action stand would make a mockery of both the Senate and the Constitution.
March 16, 2010, 12:53 pmSimon Dodd says:
I think Balkin is basically right. The hysteria about the self-executing rule seems largely based on the notion that the House is going to somehow pass the Senate bill without voting for it. But that isn’t the case. All that the Slaughter tactic does, it seems to me, is change the title of the vote and have the House vote on two bills at once. There will still be a vote in the House, and everyone present will understand that this is the vote on the Senate Obamacare bill. The difference, it seems to me, isn’t even a question of form: it’s a question of labeling.
Whether the House can vote on two bills in the same roll call vote is ultimately a distinct issue, and one that seems a closer call on second look. Section seven requires only that a bill shall have “passed” both Houses before presentment. I’m seeing section five being read to require a recorded vote if one fifth of the members so ask, but that’s imprecise: on what action does section five require a recorded vote, enough members having asked? Not “on passing a bill,” but “on any question.” Passing a special rule vel non is a question. And, of course, Congress is authorized in the same section to provide its own rules.
In all, this is inelegant and distasteful, but it’s really tough to see it as unconstitutional, still less that it is so obviously unconstitutional as to survive the presumption of constitutionality, let alone the enrolled bill rule.
March 16, 2010, 1:12 pmNunzio says:
Now I can see why Obama is in favor of a national playoff system for college football. The BCS is too messy.
March 16, 2010, 1:12 pmcboldt says:
– If the House uses the proposed “Slaughter Solution” then the President cannot sign only one of the two bills before the Senate has passed both bills. –
March 16, 2010, 1:23 pmI agree with this, which is why I’m reluctant to accept reports and speculation that HR 3590, as it now stands before the House, will be presented. If Congress presents whatever combination of HR 3590 + reconciliation is (that is, ONE bill), then the only question is whether that bill reflects what a majority of each chamber has agreed to.
I think passage of the Slaughter Rule precludes an attestation that HR 3590, as it now stands, has passed the House – because the reconciliation package (hypothetically approved by the House) changes HR 3590.
Bob from Ohio says:
Yes, the single vote “approves” both. See Clinton v. NYC.
March 16, 2010, 1:29 pmMark Buehner says:
So, if the House votes on two bills at once, the President must entirely approve that vote “before the same shall take effect,” because the vote at least partially requires the Senate’s concurrence.
I see your point, but I think this hinges on what is legally considered an ‘order, resolution, or Vote’. Its strange that the word ‘bill’ appears nowhere, and therefore we need to read bill into the clause (you can’t advance a ‘vote’ to the president anyway, a vote isn’t a bill its scorekeeping, and therefore meaningless. A letter saying 216-215 isn’t something that can be signed). Whether that equates to order, resolution, and/or vote, it would seem to me that its clear each bill will need to be forwarded. If you can’t separate vote from bill you have a lot of problems with ‘shall be deemed’ that have never been addressed, and probably other legislative headaches.
March 16, 2010, 1:45 pmSimon Dodd says:
Andrew says:
With respect, I don’t see why. If the House uses the self-executing rule, as I understand it, it will take a vote on a package of two bills. But it is the votes that are tied together, not the bills. At that point, assuming the vote goes Nancy’s way, there will be two bills, one that has also passed the Senate, and one that has only passed the House. At that point, the President can sign the bill that has passed both. He cannot sign the bill that the House passed along with the Senate bill (“[e]very bill which shall have passed,” that’s past tense, “the House of Representatives and the Senate,” that’s conjunctive, will go to the President’s desk for his signature), but there is no reason why he would be asked to. Rather, the Senate will be asked to act on the bill, and it will presumably ignore it and do something less boring instead. (What, after all, is the Senate’s institutional motivation to waste its time trying to amend a law where its version prevailed over the House’s version?)
March 16, 2010, 1:47 pmMark Buehner says:
“I think passage of the Slaughter Rule precludes an attestation that HR 3590, as it now stands, has passed the House — because the reconciliation package (hypothetically approved by the House) changes HR 3590.”
That’s precisely what the Slaughter Rule does? What else could it be? Certainly not an ability to push a House amended bill to the president without the Senate signing off, that’s clearly impossible. And surely not returning an amended bill to the Senate- that wouldn’t be a rule worthy of a name, it would be standard practice.
March 16, 2010, 1:48 pmcboldt says:
– Its strange that the word ‘bill’ appears nowhere, and therefore we need to read bill into the clause –
March 16, 2010, 1:51 pmThere are two “similar” clauses in Section 7 of Article I, the first pertains to bills, and uses the word.
Mark Buehner says:
Good point. If that is the case, and you accept the logic that this is two different bills, the Senate bill would HAVE to be forwarded to the president (shall… be presented), and the amended bill could certainly not be forwarded to the president.
March 16, 2010, 1:54 pmcboldt says:
– and you accept the logic that this is two different bills … –
March 16, 2010, 2:00 pmOne has to assume that the second bill does not change the first in any way, in order for the “two bills” to be capable of being severed one from another, with each bill representing agreement between the two chambers.
If the second bill (in the House, reconciliation), changes the first bill; then there is NOT agreement on the first bill.
Mark Buehner says:
“If the second bill (in the House, reconciliation), changes the first bill; then there is NOT agreement on the first bill.”
If the second bill changes the first bill, it is not two bills.
March 16, 2010, 2:02 pmcboldt says:
– If the second bill changes the first bill, it is not two bills. –
March 16, 2010, 2:07 pmIt is two bills as far as the internal workings of Congress is concerned, but it is a single bill as far as what Congress presents to the president.
You’ll actually see three bill numbers in the House. HR 3590, a H.Res (the rule), and an H.Con.Res. that modifies “deemed passed” HR 3590. That concoction gets transported to the Senate, assuming the H.Res. (rule) and H.C.Res. (reconciliation bill) pass the House.
Mark Buehner says:
If that is the case, its a moot point because the revised bill will go back to the Senate before it can be signed by the president. So why is that the ‘Slaughter Rule’? That’s what happens every time one house revises a bill.
Beyond that, politically your read makes no sense. The Dems have no intention of sending this back to the Senate before something gets signed into law. If they did you would hear about it. Politically it would be admitting defeat, because there is NO WAY that happens in less than a week.
March 16, 2010, 2:11 pmPubliusFL says:
We don’t have a draft rule we can look at yet, but every actual source I can find on how this thing is supposed to work says that the Senate bill is “deemed passed” either on the passing of the debate rule for the reconciliation bill, or on the passing of the reconciliation bill itself by the House. Either way, notes MSNBC, “the [Senate] bill must be signed by the president before the Senate takes up the reconciliation.” Per Pelosi, they must have the option of the President signing the Senate bill before the Senate takes up the House’s reconciliation bill in order to work around the Senate parliamentarian’s ruling.
March 16, 2010, 2:14 pmSammy Finkelman says:
If the rule for the bill that allows two bills to be passed with a single recorded vote passes by one vote, and Eleanor Holmes Norton (D-DC) is one of those votes, you’ve maybe got a nice *additional* Constitutional question.
March 16, 2010, 2:16 pmcboldt says:
– its a moot point because the revised bill will go back to the Senate before it can be signed by the president. So why is that the ‘Slaughter Rule’? That’s what happens every time one house revises a bill. –
March 16, 2010, 2:19 pmIt’s a moot point as far as what emerges from Congress as a whole is concerned, but it makes a difference in how the Senate approaches the bill. If a bill (which is represented by a bill number) is amended by the House, then the Senate has the right to unlimited debate on the amendment. Surmounting this requires 60 votes. But, if the bill is “not amended,” but is changed by a concurrent resolution in the form of reconciliation, then there is no right to unlimited debate in the Senate.
Either way, a majority vote in the Senate will work passage. What’s at issue is the length of time for debate, which is an internal matter, not a constitutional matter.
– The Dems have no intention of sending this back to the Senate before something gets signed into law. –
Of course they plan to send this back to the Senate, assuming it gets past the House. Neither chamber wants to be the one fingered as failing to pass it. And with reconciliation being limited to 20 hours of debate, Reid must believe it is possible to drive the reconciliation bill through to a vote by Monday, the 22nd of March, 2010.
Mark Buehner says:
Either way, a majority vote in the Senate will work passage. What’s at issue is the length of time for debate, which is an internal matter, not a constitutional matter.
Its a practical matter.
And with reconciliation being limited to 20 hours of debate
20 hours of debate doesn’t include the hundreds of procedural objections that will have to be voted down. There is no practical way this works. And why isn’t anybody saying a whisper about a return trip to the Senate?
March 16, 2010, 2:22 pmAndrew says:
There will be only one bill-passing vote according to the Slaughter Solution. My previous comment quoted Clause 7.3 (regarding a “vote”) rather than Clause 7.2 (regarding a “bill”). I think that both clauses apply here, not just 7.2.
Some have argued (in another thread) that only 7.2 applies here, because 7.2 is about “bills” whereas 7.3 is about other stuff. But that’s wrong, IMO. One could just as easily argue (mistakenly) that only 7.3 applies here, because 7.3 is about “votes” whereas 7.2 is about other stuff.
March 16, 2010, 2:23 pmed bernay says:
what’s the purpose of this nonsense? Its so members of Congress don’t have to be held accountable for a vote on something unpopular. The fact that this is being considered is repugnant and tells you about the character of our politicans. The laws proposed are never about what is constitutional and genuinely good for the nation but rather how political theater will effect their next election…Absolutely disgusting.
March 16, 2010, 2:23 pmcboldt says:
– every actual source I can find on how this thing is supposed to work says that the Senate bill is “deemed passed” either on the passing of the debate rule for the reconciliation bill, or on the passing of the reconciliation bill itself by the House. Either way, notes MSNBC, “the [Senate] bill must be signed by the president …” Per Pelosi, they must have the option of the President signing the Senate bill …. in order to work around the Senate parliamentarian’s ruling –
March 16, 2010, 2:28 pmI’ve read approximately the same from public sources. “The president has to sign HR 3590 as it now stands before the House” appears to be baloney. The only way that can happen is if the House unconditionally agrees to HR 3590, as it stands. If the H.Con.Res. Conditions the House’s assent on changed what it just “deemed passed,” then those changes must be agreed to by the Senate, or else the two chambers have not agreed.
As I said in a previous post, we’re all speculating – but MSNBC and Pelosi are roughly mindless readers. Sometimes they get it right, sometimes not. Same with the other media outlets. The only way I’ve been able to obtain a clear picture of what’s going on is to read raw source material. And we don’t have that, yet, for this particular situation.
Simon Dodd says:
Mark Buehner says:
But it doesn’t. That’s the point. The second bill presupposes enactment of the Senate bill and amends the resulting public law as an independent act.
March 16, 2010, 2:32 pmcboldt says:
– 20 hours of debate doesn’t include the hundreds of procedural objections that will have to be voted down. There is no practical way this works. And why isn’t anybody saying a whisper about a return trip to the Senate? –
20 hours of debate does too include the procedural objections. 2 USC 641 – Reconciliation
I’ve seen plenty of discussion about the Senate, and in fact opened my contributions with the assertion that the entire reason for this “Slaughter Rule,” “deemed passed – then we change it” maneuver is to surmount the default rule of unlimited debate in the Senate.
March 16, 2010, 2:35 pmMark Buehner says:
“But it doesn’t. That’s the point. The second bill presupposes enactment of the Senate bill and amends the resulting public law as an independent act.”
Exactly, which means the first bill advances to the president.
If the House passed a Senate bill, and before it reached the president they passed a second bill on their own that overturned the first bill, I don’t believe it would supersede the original bill. It couldn’t as once the bill is passed it is required to be forwarded.
March 16, 2010, 2:38 pmSimon Dodd says:
Andrew, I don’t understand why I.7.3 would apply here. I just don’t understand the model that you have in mind: why would the President need to sign the reconciliation bill (approved only with the House) as well as the HCR bill (approved by both houses), rather than the former going to the Senate and the latter to the President? If you’re reading I.7.3—I like this style of notation!—to require that result because the House’s action is a vote requiring Presidential action, I don’t understand why you don’t also have to read it to require that any bill passed by the House has to go to the President before it goes to the Senate. That’s a manifestly absurd result that simply doesn’t comport with the usual legislative process, and so it seems to me that whatever I.7.3 means, it can’t mean that.
March 16, 2010, 2:38 pmjames says:
I agree with you and am a liberal who wanted health care reform to be achieved through honest debate and an airing of all sides’ opinions. This is a pretty gross way to get something passed, and considering how large the bill is, it certainly isn’t slipping under anyone’s radar. I think Rahm’s solution made way more sense by making small changes over time and not this golem we have in front of us…
But to your other point about elections – if they have to worry about where there next ‘meal’ is coming from during election time, then we’ll rarely see legislation that is for the long-term good of the country as seen by both sides of the aisle…
March 16, 2010, 2:44 pmMark Buehner says:
I’ll stipulate the 20 hours for a moment (don’t have time to look, but this smacks of being wrong) and throw a bigger problem at you- the Republicans will challenge every single provision the House throws in this bill as a violation of the Byrd Rule. If even a single one of them is found by the parliamentarian to be extraneous to reconciliation, it would require 60 votes to overturn (which won’t be there), at which point the bill will be amended (again) and returned to the house (again).
That cant be the Pelosi plan, its a train-wreck. Every analysis i’ve heard is that the Senate bill gets signed into law and then the Senate takes up the House reconciliation bill.
March 16, 2010, 2:45 pmMark Buehner says:
Moreover any changes the House makes would have to go to the CBO before they could even be evaluated per the Byrd Rule, which will take days.
March 16, 2010, 2:48 pmAndrew says:
Generally speaking, no legislative “bill” passed by the House can go to the President before it is approved by the Senate (see I.7.2). Also, no legislative “vote” of the House can be give any effect by the President before it is approved by the Senate (see I.7.3).
In this Slaughter situation, the House vote to pass both bills cannot be given any effect by the President before that vote (including both bills) have been approved by the Senate, per I.7.3.
I.7.3 on its face imposes a requirement for any “vote.” And no one disputes that there will be some sort of vote on health care. So there would have to be some good reason why I.7.3 would not apply.
March 16, 2010, 2:50 pmDerHahn says:
Weird speculation on the ‘Slaughter Solution’.
Many House Democrats object to various provisions of the bill forwarded to them by the Senate (thus the original ‘you go first’ demands for Senate to approve the ‘reconcillation’ package before the House voted on the Senate bill).
What if part of the motivation for the Slaughter rule is avoiding the consequences of just enough members of the GOP being given a pass to vote for HR 3950 (the Senate Bill) in preparation for launching an all out offense to defeat the reconcilliation changes in the Senate?
March 16, 2010, 2:50 pmPubliusFL says:
Everything I have seen says that the only condition for “deemed passed” will be 1) passage of the self-executing debate rule itself, or 2) passage of the reconciliation bill in the House. So at the latest, once the House passes the reconciliation bill, the Senate bill is “deemed passed” in the same form by both houses, and would presumably have to be presented to the President. As Mark Buehner says, the fact that via some other bill (Bill B) the House has expressed its desire that the Senate agree to changes to the law that would be created by Bill A does not prevent the President from signing Bill A if Bill A has been passed in the same form by both houses.
I agree that the evidence that we have so far is weak, but it all points to conditions like what I describe rather than the condition you describe, and some evidence beats none. If different evidence emerges we’ll have to reassess.
March 16, 2010, 2:56 pmCarl The EconGuy says:
I’ve read some accounts that imply that the Slaughter rule would shield individual votes from being identifiable.
I take that to mean that the rule with the sidecar attached could be passed by acclamation without the yeas/nays recorded. Indeed, this seems to be its main attraction to the Dems. Everyone has deniability.
Does anyone at VC know if this is true? The Constitution says that the yeas and the nays “shall be recorded” but does that mean anything more than just a vote count? Does it mean that individual legislators’ votes must be recorded as well? On a rule, can any member insist on the yeas/nays?
March 16, 2010, 2:57 pmcboldt says:
– I’ll stipulate the 20 hours for a moment (don’t have time to look, but this smacks of being wrong) and throw a bigger problem at you – the Republicans will challenge every single provision the House throws in this bill as a violation of the Byrd Rule. … at which point the bill will be amended (again) and returned to the house (again). That cant be the Pelosi plan, its a train-wreck. –
I linked 2 USC 641, that’s where you’ll find the 20 hours, and that it pertains to appeals from rulings of the chair, etc.
I agree that the GOP will advance points of order, motions to recommit, and so forth. And that this is a train wreck in the making. But from Pelosi’s point of view, it’s a train wreck in the Senate, not in the House. This is intramural ball, to see which chamber will be last to hold the hot potato.
–Every analysis i’ve heard is that the Senate bill gets signed into law and then the Senate takes up the House reconciliation bill. –
At least that’s what all the professionals say. One nice thing about this issue, it’s short enough duration that if it plays out, we’ll get to see the extent to which the predictions were accurate.
March 16, 2010, 2:57 pmthefncrow says:
There seems to be a lot of deliberate misunderstanding here. It’s pretty simple.
There are two bills, the Senate HCR bill and the House’s HCR sidecar. When the HCR sidecar is introduced, the House will produce a rule that ties the two bills together for a vote while retaining their nature as separate bills. It’s not adding the sidecar as an amendment, or modifying the original bill in any way. The content of the two bills is irrelevant. You can have one bill that seeks to modify the language in the law that will be created by the other bill, like we have here, or you could have two bills that have no connection whatsoever. That rule is procedurally acceptable so long as a majority of the body at large votes to approve the rule. When it passes, it means that a vote for the final package is a vote for both bills, and a vote against the final package is a vote against both bills.
What it doesn’t mean, that some here seem to assume, is that the House has only approved the Senate HCR bill contingent upon the completion of the reconciliation sidecar(meaning Senate passage and signing by the President). If that were somehow the case, you’d be right, you’d have to have the President sign the reconciliation bill before the basic bill, and that doesn’t work. Good thing that’s not at all what’s being discussed.
All the rule does is say that the House will either approve or reject both bills in tandem. If approved, the next stop of each bill depends on where it is in the legislative process. In the case of the Senate HCR bill, the bill has already been approved, in the exact same form, by the Senate, so that bill goes to the President’s desk for a signature. The sidecar bill has not yet been approved by the Senate, so that bill goes to the Senate for approval.
March 16, 2010, 2:58 pmed bernay says:
If they made decisions based on the constitution and what was good for the country, they wouldn’t have to worry about where their “next meal” came from at election time. Its not suppose to be about specific politicans but ideas. If their ideas were good, their actions would speak for themselves and people would reelect them. For them to have to play games with procedures to shield themselves from accountability speaks volumes about their ideas.
March 16, 2010, 3:04 pmcboldt says:
– the fact that via some other bill (Bill B) the House has expressed its desire that the Senate agree to changes to the law that would be created by Bill A does not prevent the President from signing Bill A if Bill A has been passed in the same form by both houses. –
March 16, 2010, 3:09 pmI don’t believe the House will attest that it agrees to HR 3590 without reconciliation. No form of HR 3590 is in condition for presentment without that attestation. The justification for refusing to enroll HR 3590 as it now stands is that such a statement does NOT reflect the will of the House.
Alteration and Correction of Legislation in Engrossment and Enrollment CRS Memorandum – October 4, 2007.
Simon Dodd says:
Right, precisely. On its face, it imposes a requirement that the President sign off on any votes within the ambit of the clause. So the question is, what is the ambit of the clause?
I think you’re saying that I.7.3 requires the President to sign the House reconciliation bill because it’s a “vote,” so you must also be saying that the House’s vote on the bill is a “vote” within the ambit of I.7.3. All that the House is going to do on the reconciliation bill, however, is vote on its passage, and it follows that if this vote on passage of a bill is a “vote” within the meaning of I.7.3, every vote on passage of a bill is, too. (If not, what precisely is distinct about this particular vote?)
Thus, it seems to me that it necessarily follows from your interpretation that I.7.3 requires the President to sign off on each vote on passage before the bill is taken up by the other house. That’s not only an absurd result, it’s textually impossible (in view of what I.7.3 mandates if the President refuses), and fails to comport with our actual experience of the legislative process. If that is what the Constitution requires, we’ve been doing it wrong all these years. I think that absurdity is at very least “some good reason why I.7.3 would not apply,” but may be better seen as a warning that we are misinterpreting the clause’s reach.
March 16, 2010, 3:16 pmthefncrow says:
Except, of course, that this is exactly the plan. The self-executing rule is to tie together the votes on the passage of both HR 3590 and the reconciliation package. If the combined package clears the House, then the House has agreed to HR 3590 without amendment, while also passing a separate bill that would seek to change the law that HR 3590 will eventually become once the President signs it.
March 16, 2010, 3:19 pmAndrew says:
That’s not what I’ve said. It’s simple: if the House takes a legislative vote, then that vote has zero effect unless both the Senate and the President have approved THE WHOLE ENTIRE VOTE.
That’s why I agree with Balkin that once the Senate has approved the House vote then: “At that point the President can sign the two bills.” Before that point, the President cannot give any effect to the House vote (i.e. he cannot sign just one of the two bills approved in the House vote).
March 16, 2010, 3:25 pmcboldt says:
– If the combined package clears the House, then the House has agreed to HR 3590 without amendment … –
March 16, 2010, 3:52 pmThe formality that represents the House clearing HR 3590 w/o amendment is enrollment. If the conduct of the House indicates that the House does NOT accept HR 3590 as it now stands before them, then the Speaker cannot attest that HR 3590, as it stands, represents the will of the House.
House enrollment of the “deemed passed” self-executing rule is conditional on passing H.Con.Res, and H.Con.Res. works modification to HR 3590.
I would agree that HR 3590, as it stands, would be in condition for enrollment, if and only if reconciliation does not modify HR 3590. But the ‘sidecar” or “reconciliation package” or whatever one calls it is inextricably linked to HR 3590, just as much as an amendment to HR 3590 would be.
Simon Dodd says:
So you’re suggesting that the President has to approve both the votes and the bill, as two at least theoretically distinct acts? That can’t be right. I.7.2 tells us the legislative process: the House and the Senate each approve a bill, and then the President signs it. Each of those three acts is independent, and requires no assent by any other actor: the House doesn’t require Presidential assent to its vote to pass a bill. Rather, the bill requires the assent of the Senate and the President to become law. If it doesn’t get both, it doesn’t become law, but that failure to be enacted doesn’t make it any less a bill that the House passed, which is the non-zero “effect” of the House’s vote. At the point at which the House has voted, there will be one bill that has been passed by both houses, and the President is fully entitled to sign it (although one hopes with dewy-eyed optimism that he will not), regardless of whether there is a second bill floating around that isn’t ready for his signature.
March 16, 2010, 3:52 pmthefncrow says:
Actually, you disagree with Balkin.
This is why the basic idea of Balkin’s article is misguided, because the solution he presents for doing this is the exact solution that is being undertaken. The House is going to, simultaneously, pass HR 3590, unamended, plus the reconciliation sidecar. That one vote sends both bills out with the approval of the House, with no post-conditions on the House’s approval. The President can sign HR 3590, even if the Senate has yet to take up the sidecar, because HR 3590 has successfully completed the legislative process. Even if the Senate never takes up the reconciliation sidecar, HR 3590 passed as it’s own act, even though the House only held one vote to approve both 3590 and the sidecar.
The House can agree to hold a vote on one bill, two bills, three bills, five bills, or twenty bills simultaneously. The fact that they voted on those bills as a block does not place any special requirement on the procedure to pass those bills. The House doesn’t have the option of conditionally passing bills, saying that the House only approves of some law if some set of conditions are met. If the House wants to permanently tie two acts together, to ensure that the contents of Bill A are not accepted without also accepting the contents of Bill B, they don’t use a self-executing rule to tie the votes of both bills together. Instead, they would present the contents of Bill B as an amendment to Bill A, and then pass Bill A+B on a vote.
Once the House approves the bill, the bill is approved, and it proceeds through the standard legislative procedure, with there being no difference whether the bill was passed as a package of 20 separate bills approved in a single vote or one of 20 bills approved in a series of 20 votes.
March 16, 2010, 3:54 pmthefncrow says:
Except, of course, that the vote of the final package will indeed indicate that the House accepts HR 3590 as it stands before them. HR 3590 is voted on simultaneously with the separate act that is the reconciliation sidecar. If that group passes, then the House has assented to passing HR 3590 without amendment, period. If that group fails, then the House has rejected to assent to pass HR 3590 without amendment. The vote on the sidecar is also the vote on HR 3590.
Except, of course, that it’s not conditional. After the House votes, it’s entirely possible that the Senate shelves the reconciliation sidecar that comes from the House, and HR 3590 is validly signed into law. The House agreed to vote on both unamended HR 3590 and the reconciliation sidecar simultaneously, and approved both unconditionally. HR 3950 has passed both houses and is ready for the signature of the President, regardless of whether or not the sidecar bill is passed or even considered by the Senate.
If the House wanted to enforce a condition that HR 3590 not be enacted without the fixes, they’d implement the fixes into the text of HR 3590 and send it back to the Senate, or they’d amend HR 3590 to block enforcement until conditions were met, conditions that would be met by the passage of the sidecar. That’s not what they’re doing. The passage of HR 3590 is not conditionally tied to the successful package of the sidecar, the House is only agreeing to hold the vote on the two separate bills simultaneously.
March 16, 2010, 4:04 pmAndrew says:
No. There will not be “votes” in the Slaughter solution. There will be a single vote that passes two bills at once. Here’s a list:
1) If President Obama approves the single vote, then that would inherently approve everything that was voted for (i.e. both bills).
2) If he only approves one of the two bills, then he will not have approved the single vote.
3) If he approves both bills, then he will have inherently approved the single vote.
4) If the Senate approves the single vote, then it would inherently approve everything that was voted for (i.e. both bills).
5) If the Senate only approves one of the two bills, then it will not have approved the single vote.
6) If the Senate approves both bills, then it will have inherently approved the single vote.
All of this seems pretty clear, no?
March 16, 2010, 4:09 pmAndrew says:
I agree with every word that Balkin said there. The President cannot sign only one of the bills.
March 16, 2010, 4:18 pmMichael B says:
homo lupus homini, man preys upon man as a wolf – checks and balances and the underlying spirit of the Constitution and the founders be damned.
“Despite Judge McConnell’s concerns, which are textually well founded, there is a way that “deem and pass” could be done constitutionally.”
Where there is a will, there may in fact be a way – one that certainly defies the spirit of the founders, though some ample amount of casuistry and sophistry may well find a way to obfuscate or subvert the checks and balances in the Constitution.
March 16, 2010, 4:26 pmthefncrow says:
Except, of course, that it’s not what he said.
If the House passes both bills as individual bills, even if they’re passed under a single vote, the President is completely within his rights to sign one bill and not the other.
Quoting Balkin again, “it does not matter that the House has passed both through a special rule.” It does not matter if the House holds an individual vote on both bills, or votes on both bills at the same time as part of a special rule, so long as they pass the unamended HR 3590.
If we tie together two bills and hold a single vote on both of them, it doesn’t matter what the content of those bills are. One could be a bill about controlling fresh water pollution and the other about gas excise taxes. The two bills are independent of each other, and the passage of the two bills in a single vote doesn’t condition the passage of either bill upon the passage of the other. If the President vetoes the gas excise bill, that doesn’t automatically veto the water pollution bill, because they’re independent bills. That doesn’t change just because the second bill looks to make a modification in the law that the first bill will shortly become.
March 16, 2010, 4:26 pmAndrew says:
I agree with that quote. I agree that the House is perfectly entitled to pass both bills through a special rule, by taking a single vote on the Reconciliation Bill that simultaneously passes the Senate Health Care Bill. I agree with all that. And if the Senate concurs then “At that point the President can sign the two bills,” as Balkin said.
But you apparently think that the President can constitutionally sign only one of the bills, assuming that the Senate has not yet approved both bills. I disagree with that. See Clinton v. New York. The President cannot pick and choose amongst what the House voted for.
March 16, 2010, 4:31 pmMark Buehner says:
I agree with every word that Balkin said there. The President cannot sign only one of the bills.
How can that be possible? Again- IF you agree the House passes two separate bills, the Senate bill MUST be forwarded to the president, and the House bill CANT be forwarded.
March 16, 2010, 4:32 pmcboldt says:
– The passage of HR 3590 is not conditionally tied to the successful package of the sidecar, the House is only agreeing to hold the vote on the two separate bills simultaneously. –
There will be two votes. One on the rule, and one on the sidecar. Passing the rule does not pass the sidecar. If this follows the pattern of H.RES 1065, passage of HR 3590 (in the House) depends on passage of the sidecar (in the House).
If the sidecar is unrelated to the first bill (HR 3590), then I agree that HR 3590, by passage of the sidecar by the House alone, is in condition for presentment. But if the sidecar results in changing HR 3590, then HR 3590, unchanged, does NOT represent the will of the House. The will of the House is contained in the combination of sidecar plus HR 3590.
March 16, 2010, 4:45 pmAndrew says:
The President must approve the Senate Bill “before it become a law.” Also, “before the same shall take effect,” the President has to be able to approve the House vote. See clauses I.7.2 and I.7.3 respectively. There’s nothing contradictory about these two clauses, and they can easily be read in tandem.
Clause I.7.3 imposes further limitations on the President, and those limitations have always been respected in the past. In the entire history of the United States, there has never once been a situation where the House approved two bills by a single vote, the Senate approved only one of them, and the President nevertheless signed the other into law. JAMAIS.
March 16, 2010, 4:45 pmMark Buehner says:
I linked 2 USC 641, that’s where you’ll find the 20 hours, and that it pertains to appeals from rulings of the chair, etc.
Here’s part of the text of the Byrd Rule:
(e) General Point of Order. — Notwithstanding any other law or rule of the Senate, it shall be in order for a Senator to raise a single point of order that several provisions of a bill, resolution, amendment, motion, or conference report violate this section.
I’m almost positive the majority can’t play “run out the clock” at the expense of the Byrd Rule in reconciliation. I’d guess the above provision supersedes the 20 hour rule. Regardless, if Pelosi were intending to send this back to the senate she would be running around with her hair on fire trying to make sure her changes were germane to reconciliation. Otherwise I disagree- it will be Pelosi looking like a clown when the Senate kicks her back a swiss cheese version of the bill. Beyond the fact that Pelosi herself seems to be under the impression that the president has to sign a bill before it can even be considered under reconciliation (true of not, that seems to have been her take). I’m not sure how she could have been plotting to send it back to the senate all this time if she really believed that.
March 16, 2010, 4:46 pmMatt says:
I disagree with Balkin.
I don’t think Bicameralism just means that both Houses have to “pass” the same bill — it means that they have to both pass the same bill by voting on the same bill.
To be sure, there are two separate questions here, so do not get them mixed up:
(1) Is this rule constitutional?
(2) Is this issue justiciable?
The problem with Balkin’s argument is that he seems to assume the accountability coming from voting on the rule is functionally equivalent to accountability from voting on the actual bill.
If we assume Balkin’s proposition to be true, and the voters won’t be tricked by this move, then the House should just vote on the actual bill, as they wouldn’t care either way.
However, the entire point of this maneuver is so that the Democrats don’t have to vote on the original Senate bill.
Thus, if they choose not to vote on the actual bill, then it cannot be true that Balkin’s proposition of functional equivalence is correct! House Democrats are using this rule precisely because they perceive this asymmetry in the accountability!
Finally, and possibly most importantly, what Balkin fails to acknowledge is that when it comes to the law-making procedures, the Court has not historically taken a functionalist approach, but instead has adhered to a very rigorous formalist approach.
There are no reasons to think that this has changed, particularly with the membership of the Supreme Court today.
When it comes to procedural law-making, the whole reason we adopt a formalist attitude is because (1) the ability to make law is the most powerful governmental mechanism to affect substantive rights of individuals, (2) there are procedural safeguards that slow the process of law-making (veto gates at the committee stage, Bicameralism, Presentment, Presidential veto). In this day in age, the fact that the other limitations of the federal government, that is, enumerated powers and nondelegation, have virtually disappeared makes these procedural safeguards even more important. The fact that a proposed bill has to go through all these “veto-gates” ensures that “we, the people” have many opportunities to make our opinions heard, and especially have the ability to hold our elected officials accountable.
In contrast, the efforts to use this rule are wholly motivated by a desire to avoid accountability.
The Cornhusker Kickback is in the bill. If they want healthcare passed, they have to vote for it. This is how law-making works: deals and compromises have to be made. If a legislator hates it, then she can try to get another bill passed in order to get rid of it. When it comes to elections, she can explain that to her constituency.
As to the justiciability of the question, that wholly depends on the posturing of the case raising the issue and the context in which it is litigated.
If you want a recent example of the “enrolled bill doctrine,” see Public Citizen v. U.S. Dist. Court for Dist. of Columbia, 486 F.3d 1342 (D.C. Cir. 2007).
March 16, 2010, 4:50 pmMJW says:
I don’t think the issue is clear cut. In United States v. Ballin, 144 U.S. 1 (1892), which followed shortly after Field, the court looked at the question of whether a quorum was present and properly recorded. In United States v. Munoz-Flores, 495 U.S. 385 (1990) they looked into whether a bill violated the Origination Clause, which requires that all revenue raising bills originate in the house. The second case is particularly interesting because the court explicitly declared that the issue considered “does not present a nonjusticiable political question.” Also, the bill was labeled “H. J. Res. 648,” (House Joint Resolution 648) which would have ended the inquiry immediately had the supposedly all-encompassing limitations in Field been adhered to.
March 16, 2010, 4:51 pmSimon Dodd says:
The plural “votes” in my reply referred to the votes of the House and the Senate.
As mud. The President is not going to “approve” or “disapprove” the “vote” of the House. There is neither need nor occasion for him to indicate his approval or disapproval of the House vote, because the House’s unilateral power to vote on stamping its imprimatur on the bill is not a “vote to which the concurrence of the Senate and House of Representatives may be necessary.” The concurrence of the Senate is required for Congress to pass a bill, but is not required for the House to pass a bill; this vote does the latter, so I.7.3 does not apply. Rather, the President will sign (or not) a bill that has been approved—by way of votes—by the House and the Senate. That is his privilege and power under I.7.2.
March 16, 2010, 4:52 pmMark Buehner says:
The President must approve the Senate Bill “before it become a law.” Also, “before the same shall take effect,” the President has to be able to approve the House vote. See clauses I.7. and I.7.3 respectively. There’s nothing contradictory about these two clauses, and they can easily be read in tandem.
But you’re the only one reading the term ‘vote’ as literal. I’ll just point to the reality of the situation again- nothing the Democrats are doing remotely points to sending a bill back to the Senate for another round of voting.
March 16, 2010, 4:53 pmmamiejane says:
If the Court strikes down health care as improperly passed, what other legislation (passed the same way) would be struck down at the same time? And does the risk to this other legislation make a court case too potentially damaging?
March 16, 2010, 4:56 pmAndrew says:
Simon, a few questions for you:
1) Do you agree that, in the entire history of the United States, there has never once been a situation where the House approved two bills by a single vote, the Senate approved only one of them, and the President nevertheless signed the other into law?
2) Are you saying that a “vote” under I.7.3 will not occur if the Slaughter Solution is implemented?
3) If the answer to (2) is “no,” then when exactly can a “vote” under I.7.3 occur?
March 16, 2010, 4:57 pmSimon Dodd says:
Matt says:
Well, that’s nice, but the Constitution tells us that bicameralism means precisely that: “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States….”
I don’t think so. The entire point of this maneuver, it seems to me, is so that the House Democrats don’t have to vote on the original Senate bill in isolation. By tying the two votes together, the leadership reassures wavering members that the leadership will not betray them by refusing to bring up the reconciliation bill later on. The leadership in the House aren’t thinking about the public. They aren’t looking outward. There have been lots of news stories that indicate they really believe that the public is with (or will at least forgive) them on HCR, and the leadership has indicated that they regard the issue as more important than losing seats. So these tactics are more logically evaluated as intramural: a play for votes within the caucus rather than a way to limit public fallout.
March 16, 2010, 5:01 pmMark Buehner says:
Andrew- what you are saying IS mutually exclusive. If there is one bill, it goes back to the Senate, end of story. If there are two bills, there is a constitutional bind- one must go to the president (SHALL be forwarded) and one must go to the Senate. There is no provision for the House to pass a “What If” bill. Either one bill goes to the president and one goes to the Senate, or one bill goes to the senate. There is no provision for a ‘holding pattern’ while the Senate takes up the other House bill. If the second house bill somehow interferes with the first senate bill, they are no longer separate bills because the second has amended the first, and clearly the whole thing goes to the senate.
Can you point to a procedure that has ever existed in the US government where the House of Representatives has passed a ‘What If’ bill that has to wait on the presidents desk for something else to happen? It either passes and must be forwarded or it hasn’t passed at all.
March 16, 2010, 5:04 pmAndrew says:
The Constitution doesn’t say that. It says (I.7.2) that the bill shall be presented to the president before it becomes a law. That doesn’t mean nothing else has to happen before it becomes a law. In particular, see I.7.3.
March 16, 2010, 5:07 pmMJW says:
Some here are puzzled as to why the Constitution contains the two very similar Article 1, Section 7 clauses in (2) and (3). The question is addressed in INS v. Chadha, 462 U.S. 919 (1983):
I guess Madison realized just how creatively duplicitous politicians can be.
March 16, 2010, 5:09 pmMatt says:
So what does “pass” mean to you? What does that word mean?
March 16, 2010, 5:12 pmthefncrow says:
The President can’t pick and choose which items to select out of a bill, but the President certainly has the power to pick and choose which bills to veto in their entirety and which bills to sign in their entirety. At no point is either bill amended to require passage of the other, and at no point can the President be considered to be rewriting the bill by signing or vetoing the entire bill as passed. Thus, the rationale behind killing the line-item veto in Clinton v. New York doesn’t apply here.
Even though both bills pass on the same vote, they’re still independent bills, and there’s nothing to indicate that they’re not. If the House intended to tie the bills together, they have options for doing that, but they’re explicitly not using those options. Both bills are still independent, and can succeed or fail on their own without bringing down the entire package.
March 16, 2010, 5:13 pmThe Colonel says:
With control of both houses, and the Presidency… Why would a single bill be so hard to get through? Clearly over the will of the people. What happens then?
interesting times ahead friends.
March 16, 2010, 5:16 pmMark Buehner says:
“The Constitution doesn’t say that. It says (I.7.2) that the bill shall be presented to the president before it becomes a law. That doesn’t mean nothing else has to happen before it becomes a law. In particular, see I.7.3″
Show me the provision to invalidate a bill that has been approved by both houses before it gets to the president. If you nullify the bill, it will NEVER reach the presidents desk, which is a clear violation of the “shall be presented to the president” clause.
March 16, 2010, 5:16 pmthefncrow says:
This is just a great argument. “If the House passes HR 3590 on a recorded vote, but they also simultaneously pass another independent bill, the passage of HR 3590 does not signify the will of the House to pass HR 3590″.
Do you realize how silly this sounds?
The fact that the House takes up HR 3590 and passes HR 3590 signifies the will of the body to pass HR 3590. That they might wish to simultaneously pass another independent act that would make modifications to the eventual law that 3590 will become does not in any way alter the text of HR 3590, and does not modify HR 3590 in any way. The act may amend the law that HR 3590 will become, but HR 3590 is itself untouched and need not be revisited.
If they wanted to alter HR 3590 to prevent passage of the bill until the changes were agreed to, the body would modify the text of HR 3590 directly, an option that’s entirely available that the House is deliberately choosing not to undertake. With the passage of the self-executing rule and the adoption of the package, the House is agreeing to the passage of unamended HR 3590, no matter what your protestations are that an actual vote of the House that passes HR 3590 somehow doesn’t count because they’re also simultaneously approving another independent bill.
March 16, 2010, 5:18 pmAndrew says:
Agreed. And my contention is that I.7.3 broadens that requirement. The President can’t pick and choose which items to select out of a vote, either, or out of an order, or out of a resolution.
March 16, 2010, 5:18 pmSimon Dodd says:
Andrew,
(1) I have no idea, but I’m willing to stipulate to it for the time being.
(2) No, I don’t think that an single chamber’s vote on passage is an “order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary” for purposes of I.7.3. I think that it’s textually awkward to say that it is, and that it produces absurd results if applied consistently, as my earlier comment explains in more detail.
(3) Well, off the top of my head, Congressional consent is required before states can do various things (I.10.3), and since Congress would give its assent by “order, resolution, or vote,” that would presumably require Presidential assent. To be sure, that theory does give rise to the counterargument that if the President’s assent was necessary also, why not just say so in I.10.3, but that has only superficial appeal. Reading I.7.3 to cover non-legislative activities of Congress comports with its text, avoids absurd results, and preserves coherent and independent ambits for I.7.2 and I.7.3.
I have a question: in your view, when the House voted to impeach President Clinton, why didn’t I.7.3 require presentation of that vote to President Clinton for his approval or veto? What exactly are the characteristics which make this vote on passage a “vote” for purposes of I.7.3 yet which do not make that vote by the House a “vote” for purposes of I.7.3?
March 16, 2010, 5:19 pmMatt says:
Yes, that is my point, when I said Democrats, I clearly meant those House Democrats who would be voting on it.
Try this hypothetical: there are two bills pending in the House. Bill X is terribly unpopular and the Bill Y is popular. The Committee passes a rule that says “if we pass Y, then we deem X to be passed.”
Then they go ahead and vote on Bill Y. They get a majority and it passes.
First, note that they VOTE ON THE BILL. So before, when you say “pass” can mean something besides vote, they are actually VOTING on Bill Y to get it passed. Then, by operation of the rule, Bill X “passes” as well.
Then, they go home and tell their constituency that they voted for Y but they didn’t vote for X. Which, in a literal sense, is true.
You don’t see problems there?
March 16, 2010, 5:20 pmcboldt says:
– I’m almost positive the majority can’t play “run out the clock” at the expense of the Byrd Rule in reconciliation. I’d guess the above provision supersedes the 20 hour rule –
March 16, 2010, 5:21 pmIt’s embedded within the 20 hours. 2 USC 641(e)(1) [Procedures in Senate] refers to Section 636 for time limits for debating points of order.
thefncrow says:
The rule has to be adopted by the majority of the chamber. You can only tie Unpopular Bill X to Popular Bill Y if a majority of the chamber decides to do so.
Thus, your argument falls apart, because if the chamber were to actually pass the rule, it means the House as a whole decided to tie those two votes together. Further, because the rule is known in advance of the vote, it means all members know that their vote for Popular Bill Y is also a vote for Unpopular Bill X, and if they really oppose Unpopular Bill X, then they should vote against the combination.
March 16, 2010, 5:28 pmcboldt says:
– With the passage of the self-executing rule and the adoption of the package, the House is agreeing to the passage of unamended HR 3590, no matter what your protestations are that an actual vote of the House that passes HR 3590 somehow doesn’t count because they’re also simultaneously approving another independent bill. –
March 16, 2010, 5:29 pmThat other “independent bill,” isn’t independent. It’s tightly related. If the sidecar works a change to Senate-passed HR 3590, before Senate-passed HR 3590 is to be presented to the president, then it is false to say that [unchanged] Senate-passed HR 3590 is what the House agreed to present to the president. It’s not “my protestations,” look at what the House says (if they ever get around to saying it).
cboldt says:
– With control of both houses, and the Presidency… Why would a single bill be so hard to get through? –
March 16, 2010, 5:32 pmIf it wasn’t for the supermajority requirement to limit debate in the Senate, this monstrosity would pass without resort to “The Slaughter Rule,” and in spite of the apparent will of the public. The Democratic politicians have a clear majority in both chambers, and a president who is eager to sign the legislation.
Mark Buehner says:
“It’s embedded within the 20 hours. 2 USC 641(e)(1) [Procedures in Senate] refers to Section 636 for time limits for debating points of order.”
I don’t think so- it directly conflicts with the Byrd provisions, example:
Debate on any debatable motion or appeal related to the conference report (or a message between Houses) shall be limited to 1 hour
2 USC 641(e)(1)
…
such point of order being sustained, such material contained in such conference report or amendment shall be deemed stricken, and the Senate shall proceed, without intervening action or motion, to consider the question of whether the Senate shall recede from its amendment and concur with a further amendment, or concur in the House amendment with a further amendment, as the case may be, which further amendment shall consist of only that portion of the conference report or House amendment, as the case may be, not so stricken. Any such motion in the Senate shall be debatable for 2 hours.
March 16, 2010, 5:33 pmSection 313 of the Congressional Budget Act of 1974 http://budget.house.gov/crs-reports/RL30862.pdf
Mark Buehner says:
I have yet to see any precedent for this idea of ‘interwoven’ or ‘tightly related’ bills. There are either 2 independent bills, or 1 revised/combined bill. Is there any evidence anywhere that one bill can be used to set off another bill?
March 16, 2010, 5:35 pmAndrew says:
If you look at the intent of the framers, one thing is manifestly clear: they intended I.7.3 to cover legislative activities. They were worried that Congress might legislate in a way that evades I.7.2 (as Congress is doing now).
That issue has come up before with regard to constitutional amendments. See Hollingsworth v. Virginia. A vote to impeach would be exempt for the same reason that constitutional amendments are exempt, plus of course a vote to impeach does not require the concurrence of both houses.
A joint resolution ordinarily has to be presented to the President under I.7.3, because it is legislative. Any vote that is legislative falls within I.7.3.
March 16, 2010, 5:36 pmSimon Dodd says:
Matt says:
I would read it to mean essentially “been approved by,” which is the most sensible reading in this context and comports with the other uses of the word in Article I. This approval may presumably be given by whatever means are within the rules and traditions of the given chamber and that are otherwise constitutional. While the background assumption is that a legislative body will pass a bill by simple majority vote, it may enact rules that require more votes, see, e.g., Rappaport & McGinnis, The Constitutionality of Legislative Supermajority Rules, 47 Duke L J 327, 327-30 (1997), or fewer, see, e.g., Vermeule, Submajority Rules: Forcing Accountability upon Majorities,” 13 J. of Pol. Philosophy 74 (2005). I could imagine truly egregious cases meriting closer review, but I’m not sure that this is one of them, the ghastly nature of the underlying bill notwithstanding.
March 16, 2010, 5:36 pmMatt says:
I think my argument still stands, regardless of whether it is the full House or just a committee voting on the rule. The whole point is that the House is not voting on the actual bill.
Here’s the problem with yours: you are trying to justify the rule on the basis that they ARE taking accountability for the Bill X.
If that’s the case, why don’t they just vote for the bill? They can vote for the reconciliation bill afterwards.
March 16, 2010, 5:39 pmcboldt says:
– Even though both bills pass on the same vote, they’re still independent bills, and there’s nothing to indicate that they’re not. –
March 16, 2010, 5:39 pmTwo points. First, they aren’t “independent” except in that they have discrete bill numbers. Amendments also get discrete numbers, and discrete indicia for acceptance (votes, UC agreement to pass), but amendments aren’t separately passed to the president.
Second, the “sidecar,” as I understand it, will be in the form of a House Concurrent Resolution. “A resolution adopted by both houses of a bicameral legislature that does not have the force of law and does not require the signature of the chief executive.”
Andrew says:
If you look at the intent of the framers, one thing is manifestly clear: they intended I.7.3 to cover legislative activities. They were worried that Congress might legislate in a way that evades I.7.2 (as Congress is doing now).
That issue has come up before with regard to constitutional amendments. See Hollingsworth v. Virginia. A vote to impeach would be exempt for the same reason that constitutional amendments are exempt, plus of course a vote to impeach does not require the concurrence of both houses.
A joint resolution ordinarily has to be presented to the President under I.7.3, because it is legislative. Any vote that is legislative falls within I.7.3.
March 16, 2010, 5:40 pmMatt says:
This is tautological, is it not?
Instead, can you define the parameters of acceptable conduct for “passing” a bill?
March 16, 2010, 5:41 pmcboldt says:
– I don’t think so– it directly conflicts with the Byrd provisions … –
March 16, 2010, 5:43 pmThat “1 hour” “2 hour” conflict is resolved by noting that the shorter period pertains to reconciliation and conference committee, and the longer period to the point in the process that precedes commitment to a working committee. Likewise, there are three different time periods for debate, 50 hours, 20 hours, and 10 hours; again, depending on the procedural stance of the matter in hand.
Matt says:
My professor, Alan Morrison, comments on this in a Politico piece.
When Dean Morrison — who is quite liberal — is arguing that “deem and pass” is an unconstitutional way to pass healthcare, then you have a problem.
P.S. Dean Morrison also argued INS v. Chadha.
March 16, 2010, 5:44 pmP.P.S. I am also liberal, and I want healthcare to pass. I am not making these arguments because I am an ideologue.
Matt says:
Yes, but in those situations where a greater-than-majority vote is required, they are actually voting on the substance of the bill (technically, the super majority requirement is used to invoke cloture, then a majority vote for the actual bill — but they still vote on the actual bill.)
March 16, 2010, 5:48 pmSimon Dodd says:
Andrew says:
Like Justice Scalia, I do not look at the intent of the framers, see A Matter of Interpretation 38 (1998), but the original public meaning. See, e.g., Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010). Either way, what evidence do you have in mind?
This makes no sense to me. How is what Congress is doing now a manner of legislating that evades I.7.2? That’s simply false. If Pelosi prevails in this vote, the Senate HCR bill will have been passsed by both chambers and signed by the President. That is precisely what I.7.2 requires. The reconciliation bill will not have been enacted; it will go to the Senate, where it will either be voted on and signed by the President, in which case it will become law, or not, in which case it won’t become law, and will in either event comport with I.7.2.
Neither does a vote for either of the houses to pass a bill, which is what the House is going to do here!
Your point about amendments not requiring Presidential signature (at least functionally-speaking, as Hollingsworth explains) is a good one, I will have to think about that.
March 16, 2010, 5:48 pmMark Buehner says:
Second, the “sidecar,” as I understand it, will be in the form of a House Concurrent Resolution. “A resolution adopted by both houses of a bicameral legislature that does not have the force of law and does not require the signature of the chief executive.”
Now i’m thoroughly confused. If its a resolution, whats the point? Making a statement that they don’t believe what theyre voting for but have no intention of making the changes law? I suppose you could make the argument that the only thing that could make this process even more pathetically meeley-mouthed would be to attach a nonbinding resolution expressing your dislike of exactly what you’re voting for…
March 16, 2010, 5:52 pmMatt says:
Simon Dodd,
I don’t mean to be rude, but every time you use the words “sensibly” and “simply,” my eyebrows go up. Adjectives don’t make up for analysis.
March 16, 2010, 5:53 pmAndrew says:
Simon, if you think I.7.3 only applies to non-legislative stuff, then you are in a very very tiny minority. SCOTUS has said otherwise. Joint resolutions that make law are routinely processed under I.7.3. So, I think you’re just plain mistaken about it.
And if you want to be a textualist, then be a textualist. I.7.3 says “every…vote” rather than “every…non-legislative vote.”
According to the Slaughter Solution, the House would pass the Senate Health Care bill by implication, instead of directly, and it would be passed as part of some package whose components would not all necessarily become law. This is a violation of the spirit of I.7.2 at the very least, and that is why I.7.3 was inserted into the Constitution.
March 16, 2010, 5:57 pmcboldt says:
– If its a resolution, whats the point? –
March 16, 2010, 6:00 pmOne ascertains the target and point of a resolution by reading it. In this case, reconciliation may be an instruction to the Clerk of the House or Secretary of the Senate to make specified changes to HR 3590 before it is enrolled, engrossed, and sent to the president. Such an order would not have the force of law to the public (because we lack the authority to change bill language), and therefore there is no need for the president’s agreement. He has the power to accept or reject what is presented to him.
Simon Dodd says:
Matt says:
I don’t have to. Since the Constitution doesn’t define the term, it bears its “normal and ordinary as distinguished from technical meaning. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. (internal quotation marks and citations omitted). Its normal and ordinary meaning at the time likely meant a majority vote, but that doesn’t end matters, because the Constitution also gives Congress the power to make its own rules. Thus, the original meaning of “passing” establishes the baseline from which the power to make rules departs. To show that any rule about how bills are passed transgresses these limits would seem to be quite a tall order. It would have to be something truly egregious. For example, a rule that gave the speaker power to act on behalf of the chamber would clearly go too far.
Yes, but again, this is simply a question of labeling. This is like splitting hairs between a court that concludes its opinion “it is ordered that it be affirmed” and “it is ordered that it is affirmed”: they mean the same thing. The House is going to have a vote, and everyone understands that this is the vote on the Senate healthcare vote. What does it mean to “vote on the actual bill”? Suppose that Pelosi came to the floor and called a vote on a resolution that said: “be it enacted by the House of Representatives, the Senate Healthcare bill S.1234″—whatever the bill number is—”is hereby passed by the House of Representatives.” Would that vote not be a vote on the Senate bill?
I’m all for formalism when the form makes any difference at all, but here, it just seems empty.
March 16, 2010, 6:02 pmMark Buehner says:
Now we’re way off the reservation. I’ll again point out that i have never seen any indication that there is a provision for mucking with a bill after it has passed both houses.
March 16, 2010, 6:03 pmSimon Dodd says:
Yes, but Andrew, it can’t mean “every vote.” And as you’ve already pointed out, it doesn’t mean “every vote.” It might mean at least this: that whatever Congress calls its work product, be it a bill, resolution, or whatever, that work product needs a Presidential signature. But it does not mean that every time either chamber holds a vote on passing legislation, the President must sign off on the vote, and that is the crux of your position here. That is simply not the case. The President will sign the bill. The vote by which the House approves the bill is no more within the President’s ken than was the vote by which the Senate approved it.
This whole argument comes down to whether the Constitution of the United States mandates that the House give its assent in the active voice rather than the passive voice. Just because the stakes are high doesn’t make this any less a tempest in a teapot.
March 16, 2010, 6:09 pmAndrew says:
Here is the Mucking Clause: “Every…vote to which the concurrence of the Senate and House of Representatives may be necessary…shall be presented to the President…and before the same shall take effect, shall be approved by him….”
The single vote to pass both bills is a “vote.” The concurrence of both houses would be needed to pass either bill or both, and so such concurrence is at least partially needed for the vote in question. The vote (including BOTH bills) must be approved by the President “before the same shall take effect,” and so the House and Senate must approve BOTH bills if there is a single vote in the House.
March 16, 2010, 6:12 pmthefncrow says:
That’s a situation you don’t have to worry about, because it’s not the way the reconciliation process works.
The reconciliation bill is going to contain instructions to make changes to the law that will be created by HR 3590. That bill will have no effect until it passes through both chambers, and HR 3590 will be enacted before the Senate takes up the reconciliation bill.
Thus, what I’ve been saying all along: HR 3590 is unchanged in this entire process. HR 3590 will be enrolled and passed to the President as written right now, having had the identical text passed by both the House and Senate. The President will sign that into law. The changes to that law will be debated in the Senate only after the President signs HR 3590, and the passage of the sidecar will come after that.
The House will pass HR 3590, the President will sign HR 3590, and the sidecar’s changes will be applied to the law created when HR 3590 is signed, because the law will have already been enacted by the time reconciliation completes.
March 16, 2010, 6:15 pmAndrew says:
Precisely. And when Congress takes this single vote, its work product will be much more than the Reconciliation Bill.
March 16, 2010, 6:16 pmcboldt says:
– I’ll again point out that i have never seen any indication that there is a provision for mucking with a bill after it has passed both houses –
2 USC 641
March 16, 2010, 6:17 pmcboldt says:
– HR 3590 will be enrolled and passed to the President as written right now, having had the identical text passed by both the House and Senate. –
March 16, 2010, 6:27 pmYou’ve been clear and unequivocal in that prediction, and you’ve expressed how you come to the conclusion.
I think your prediction will not prove out, and I’ve given my reasons for coming to the opposite speculation.
Mark Buehner says:
The single vote to pass both bills is a “vote.” The concurrence of both houses would be needed to pass either bill or both, and so such concurrence is at least partially needed for the vote in question.
Your logic has a big hole it in. The Senate would need to take up the same ‘vote’ with the identical language, meaning they would need to vote again on their own bill and on the revised bill because they are now a ’1 vote unit’. If that happens i’ll do a happy leprechaun dance across the mall in my whitey tighties and a top hat.
March 16, 2010, 6:29 pmAndrew says:
It seems to me that the folks who want to read I.7.3 narrowly are painting themselves into a corner. Suppose Congress gets really creative, and calls their legislation a “Geronimo” instead of calling it a “bill” or a “resolution” or an “order.” And suppose that a Geronimo involves a single vote in each house on some language that has only one paragraph in common. Under your narrow interpretation of I.7.3, where is the requirement in the Constitution that that paragraph has to be approved by the President before it becomes law?
March 16, 2010, 6:36 pmMark Buehner says:
Suppose the house passes a bill saying Nancy Pelosi is allowed to rewrite any bill she pleases after its voted on by both houses.
March 16, 2010, 6:38 pmMark Buehner says:
I guess we will quickly have our answer. Good discussion guys, have a good night.
March 16, 2010, 6:39 pmcboldt says:
Just pulling an example of a Concurrent Resolution directing a change to “a law” before presentment, check H.Con.Res.191.
See H.Res.772 (the rule), and the legislative timeline on HR 2918 as well as the legislative timeline of H.Con.Res.191
March 16, 2010, 7:47 pmGranted, the substance of the example is minute; but this form of action involves a correlation between an underlying bill (HR 2918), a concurrent resolution that modifies the underlying bill as well as instructs the Clerk, etc.; and a deeming clause in the House Resolution (the rule) so that H.Con.Res.191 was not voted on. “Pursuant to the provisions of H. Res. 772, H. Con. Res. 191 is considered passed House.”
Unconstitutional?
Not_a_lawyer says:
Interesting discussion. Given the lack of consensus here among folks who apparently spend a lot of time interpreting the law, I do not think it farfetched that SCOTUS could torpedo this cowardly manuever by declaring it unconstitutional.
March 16, 2010, 11:04 pmgregspolitics says:
This is not about political cover or avoiding political accountability, its about institutional anger of some House Dems towards the Senate. By the terms of the rule, voting for it and voting for the reconciliation bill is a vote for passing the Senate bill. Otherwise, it wouldnt be a self-executing rule and it wouldnt work. Thus, there is political accountability. Because of their anger at the Senate, some House Dems want to be permitted to pass the Senate bill in this way provided for by THEIR rules. While I think it is silly, I also think it is constitutional. The House has to PASS the exact same bill (HR3950 as amended by the Senate) as the Senate and the Rule, combined with the vote on reconciliation, passes that exact same bill. That bill will then be presented to the president under Article I, Section 7, clause 2. Clause 3 applies only to “votes to which the concurrence of the Senate and House of Representatives may be necessary. . .” This is not such a vote. The House and Senate do not have to vote on passage in the same way. The Senate will not be concurring in the House’s way of voting and it doesnt need to. Once all of the voting is done, the BILL (HR3950 as amended by the Senate) will have passed and that BILL will be presented to the president. The separate House reconciliation bill that will have passed the House will then be sent to the Senate, and, if passed there, presented to the president as a separate BILL for his signature, following a Senate VOTE in accordance with its own rules. For the House members being so appeased, there is an apparent nuance being exploited which is that the House must PASS the Senate bill, but it does not have to VOTE for the Senate bill, although it must VOTE to PASS the Senate bill into law, as it will. I am sure that if this alternative were not available, they would pass the bill anyway, but since it is available, they want to do it this way. Perhaps, after the vote, the members will sing a rousing version of “My Way” in celebration. I am a Democrat and I want this bill to pass, but to paraphrase Winston Churchill, the Democratic Party is the worst political party except for all of the others.
March 17, 2010, 12:52 amCap'n Rusty says:
Professor McConnell cites Article 1′s requirement for the recordation of yeas and nays as evidencing the purpose of ensuring the democratic accountability of our representatives. If the citizenry cannot know how their representatives voted, they are not represented. It doesn’t seem to me that the purpose of Article 1 was to allow the President to simply “take the word” of House and Senate officials that a bill really, really was passed. The purpose of the Constitution was to jealously guard the liberties of the people against encroachment by their government, and certainly its authors were aware of the risks that two branches might connive to deprive them of it.
Thus, Section 7 first states that a bill has to be passed by both houses before it can become a law. It then discusses the President’s veto power, and the procedure by which Congress can override a veto. The third sentence of Section 7 states “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” (emphasis added). That, I would submit, is what ensures accountability of the individual Representatives and Senators to their constituents. “[A]ll such cases” makes the requirement of a recorded vote applicable to the first sentence’s requirement that a bill be passed by both houses. And I would emphasize that it is the votes for and against “the bill” — singular — which must be recorded.
Assume the Slaughter House Rule states (1) that the Senate Obamacare bill is “deemed” passed, and (2) sets out a Reconciliation bill. There are two bills in this Rule. Some Representatives voting for the Rule might be voting in favor of the Senate Obamacare bill despite the Reconciliation bill (and would have voted against the Reconciliation bill if the bills had been considered separately). Other Representatives voting for the Rule might be voting in favor of the Reconciliation bill despite the Senate Obamacare bill (and would have voted against the Senate Obamacare bill if the bills had been considered separately). While the total number of votes might be sufficient to pass the Rule, we could never know whether either bill would have passed on its own, and the citizens would never know how their Representative would have voted if the bills had been considered on their own, defeating the democratic accountability mandated by Article 1, Section 7. Thus, the Senate Obamacare bill cannot be extracted from the stipulated version of a Slaughter House Rule after passage and signed by the President.
March 17, 2010, 1:16 amELC says:
I’ve read the other two threads thoroughly, but not this one. So forgive me if this has already been said here.
Midwesterner made this point on the Kopel post: a “Yes” vote on a rule that both (1) deems the Senate bill to have been passed and (2) passes a reconciliation bill is a self-contradictory vote. Why? Because (1) means I accept the Senate bill as is and want it to be enacted and (2) means I don’t want the Senate bill as is to be enacted.
Let’s make it more specific. Let’s say the reconciliation bill has no “Louisiana Purchase”, which the Senate bill does have. Voting for a rule that “deems” the Senate bill to have been passed and also passes the reconciliation bill will be a vote to both (1) accept the Louisiana Purchase and (2) reject the Louisiana Purchase.
More generally, ISTM that a “Yes” vote on the Slaughter Solution must necessarily involve this self-contradictory vote, because there is no need for this underhanded trickery if a majority wants to pass the Senate bill as is; IOW, the reconciliation bill must effectively amend the Senate bill in some way, or there would be no need for it.
P.S. For those who think that, since the constitution does not define what it means to pass a bill, the legislative bodies can define their rules to “pass” a bill any which way they want, would it be okay for the Congress to make “bill of attainder” or “corruption of blood” mean whatever they want it to mean, since the constitution does not define those terms either?
March 17, 2010, 8:51 amSimon Dodd says:
Cap’n Rusty says:
No it doesn’t. Think about it: if section seven requires a recorded vote for every bill, rather than just those coming back from the President’s veto, section five makes no sense, because its provision for one fifth of the members of either house to require a recorded vote presupposes that there will not otherwise be a recorded vote.
What’s your argument for that proposition?
March 17, 2010, 11:36 amgregspolitics says:
To ELC:
March 17, 2010, 11:59 am1. The House is voting to pass two bills-the current Senate bill and its own reconciliation bill. The latter does not amend the former bill as a bill. Rather, if passed by the Senate, it would amend the law put into effect when the president signs the former. By doing so, the House is accepting that the Senate bill will become law and taking their chances that the Senate will pass the reconciliation bill (which it probably will)and make it law.
2. On your P.S. that is not the right comparison. Of course, Congress cannot define what a constitutional term such as “bill of attainder” means and have it pass muster unless it is, in fact, what the constitutional term means. For instance, clearly Congress could not simply pass a law defining freedom of speech as not including flag burning. But here Congress (the House) simply has to pass the bill and that is exactly what it is expressly doing by the language of the rule and that satisfies the Constitution.
ELC says:
Re: 1. Yes, that’s why I said the reconciliation bill must “effectively” amend the Senate bill in some way. (Instead of saying “effectively”, I should have used a word other than “amend”, since that is a term of art.) I stand by my original remarks: if the Senate bill is acceptable to a majority in the House, then it would actually be voted on, rather than “deemed” to have been passed; the Slaughter Solution would not be necessary if the Senate bill was acceptable to a majority in the House. So, again, a “Yes” vote on the Slaughter Solution means, Yes, the Senate bill is acceptable to me and No, the Senate bill is not acceptable to me.
Re: 2. First, then neither can Congress define what “passing a bill” means; passing a bill, and working corruption of blood, had specific (traditional or historical or customary or technical) meanings to be applied or the framers would have defined them in the constitution. Second, I’m speaking with certainty only for myself; but I think that literally millions of Americans will simply not accept that a bill can be passed without being voted on; and therefore, it cannot become a law though God Himself signs it and Nine Black-Robed Judges demur on the grounds
they don’t want to touch this with a ten-foot poleit’s a political non-justiciable question.And, in case you’d like to argue that they would be voting on the bill, here’s a bit of some of the the latest from Queen Nancy: one of the reasons she likes the Slaughter Solution is it means they “don’t have to vote on the Senate bill”. (At 1:29 in the following transcript.)
http://www.livedash.com/transcript/anderson_cooper_360/49/CNN/Tuesday_March_16_2010/170117/
I can practically hear the sound of lawyers saving that one to their hard drives.
March 17, 2010, 8:45 pmMidwesterner says:
The problem is that the two bills (or bill and rule) that are being combined into one vote are for mutually exclusive outcomes. It is impossible that they can both pass into law. The most highly charged issues (Cornhusker Kickback, Louisiana Purchase, abortion, etc) are irreconcilable between the two bills. Everybody here seems to agree that the purpose of the Slaughter solution is to shield the members of the House from the repercussions or their vote. But the way it is doing that is actually by shielding them from voting. Because the two possible outcomes are unmistakably irreconcilable, they must in fact be two separate questions (unless Schrödinger is tabulating the votes).
What is a ‘question’? Since the writers of the Constitution didn’t see the need to explain (and the convention delegates’ instructions were to alter the Articles), the usage should be carried over from the Articles of Confederation.
From the Articles of Confederation a list of things congress may not do is followed by:
In other words, darn near everything. The reason day to day adjournments are exempted is that it is possible to lose quorum during the course of business if members leave.
The Articles and the Constitution contain almost the same language regarding ‘yeas and nays’. From the Articles:
Article I, Section 5, Clause 3 is very similar except that it allows a vote to not be recorded unless one fifth of those present desire it to be:
Comparisons to unanimous consent are not appropriate as the chair must ask for unanimous consent. One half of two bill/one vote is not ‘asking’. If the chair did actually ask for unanimous consent for the Senate version, at that point I/5/3 would control. It is a safe guess in this case that more than one fifth of the members desire the vote to be recorded. The House’s decision, or rather that of its members, cannot be recorded because it is not in the hands of the House. Nobody knows what their single vote meant until the Senate and President decide what their vote meant. Were this done in two separate votes there would be no problem since each vote would have a clear meaning.
There is only one reason the Slaughter Solution is needed and that is to defeat the accountability required by I/5/3.
Furthermore, since the two possible outcomes consolidated into one vote cannot possibly both pass into law, the combined vote is not a vote and is in fact, a transference of the House decision making responsibility to the Senate and President. Again, not Constitutional.
One representative would probably have standing but any one fifth of them certainly should. Hearing the parliamentarian explain what and why should be priceless.
March 17, 2010, 11:01 pm