Politico reports that quite a few constitutional experts, in addition to Stanford’s Michael McConnell and Yale’s Jack Balkin, believe the so-called “Slaughter Solution” (aka “Deem and Pass”) could present a thorny constitutional question. McConnell thinks it’s clearly unconstitutional; Balkin believes its constitutionality depends on its final form. To McConnell and Balkin, Politico adds GW’s Alan Morrison and Public Citizen’s Alison Zieve:
“If I were advising somebody,” on whether deem and pass would run into constitutional trouble, “I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let’s pretend.’ ‘Deems’ means it’s not true.”. . .
“You run the risk that it could be declared unconstitutional. … If both houses vote on the substance of everything, then I’m not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi. . . .
Alison Zieve, director of litigation for Public Citizen, said, “I agree it doesn’t feel good. It seems inconsistent with the wording of the relevant constitutional provision. And then the question is whether the constitution gives them flexibility to adopt procedures to streamline or guide their business.”
Josh Gerstein’s Politco blog also notes that former Georgetown University law professor Marty Lederman has also been critical of prior efforts by House leaders to claim that the House and Senate passed the same statutory text when this had not, in fact, occurred. Lederman is now a deputy in the Justice Department’s Office of Legal Counsel. Based on Lederman’s analysis (see also here) it might be relevant if one could show the House leadership is acting in bad faith.
What’s the problem? The text of Article I would seem to require a vote on the bill, and language in two Supreme Court opinions, INS v. Chadha and Clinton v. New York (the line-item veto case), would seem to interpret the bicameralism requirement in a fairly rigid and formalistic way. This is the legal authority that gives even many supporters of health care reform great pause.
But even if “deem and pass” is unconstitutional, that does not mean federal courts would so rule. Another set of court precedents suggests that the question whether a bill in fact passed either House in accordance with that House’s rules is not justiciable. As I noted in this post concerning legal challenges to the Deficit Control Act of 2005, the 1892 decision of Marshall Field & Co. v. Clark would seem to foreclose such a challenge. In that case, the Supreme Court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.’” Pursuant to this decision, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected a constitutional challenge to the 2005 Deficit Reduction Act. (A challenge, interestingly enough supported by Reps. Pelosi and Slaughter, among others, and opposed by the Bush Administration.) This decision, and the Field v. Clark precedent would seem to create a problem for those who would like to challenge the constitutionality of any health care bill enacted through resort to the “Slaughter Solution.” Of course, just because Congress could get away with it, does not mean it’s constitutional.
Hugh says:
I have read several articles stating that this is a frequently used procedure. One article said that it was used for introducing amendments to bills, not for actual passage of bills. I have not had much luck looking for a history of the procedure. Does anyone have a good link?
Also, if this procedure is making use of the reconciliation process, home come it is not time limited under the Byrd Rule? IIRC, the lifespan of the 2001 tax cuts, passed using reconciliation, was limited to ten years because of the Byrd Rule.
March 17, 2010, 5:53 pmPeteP says:
One thing is sure – it WILL be challenged in court, repeatedly. The AG of Virginia even sent Pelosi a letter today ( basically ) stating that he would challenge it.
So, the political question is – Do the Dems want to risk that ongoing headline for months and months ?
The Deem Team should be scared – very scared !
Another thing is for sure – anyone who’s not totally confused by all this hasn’t been paying attention :-)
March 17, 2010, 5:58 pmMichael P says:
If there is evidence that the leader of one house acted in bad faith to secure the votes that passed the bill, would that circumvent the requirement for courts to take the house leaders at their words? If the courts would still have to take the attestation for fact, does that leave opponents of such a bill without any recourse?
March 17, 2010, 5:59 pmruuffles says:
Marshall Field forecloses that as well
March 17, 2010, 6:02 pmHugh says:
Oops….HOW come it is not time limited under the Byrd Rule? Bad keyboard! BAAAD keyboard!
March 17, 2010, 6:03 pmHugh says:
How much can anyone rely on Marshall Field? At some point, a fraud by the Congressional leadership would have to be struck down by the courts. For instance, would the courts honor a statute if it was “enacted” by a “bill” that the Speaker and the President Pro Tempore submitted to the President for signature that had never been voted on.
March 17, 2010, 6:07 pmAdam Sullivan says:
One avenue that I haven’t seen explored by any heavyweights is the issue of the minority’s right to have each “question” recorded if that minority can muster 1/5th of those present.
Aren’t the rule and the Senate bill two different questions? And how can one be “present” (in order to count noses for a 1/5th) if the rule is self executing and contingent on other matters?
If the Senate bill is to be presented to the president for signature per Clinton v. New York then it is, in fact, a separate and distinct entity from the rule itself. Were the rule and the bill it encapsulates a single entity (“the question”) it could not be presented since the Senate did not vote on the rule, but instead on the bill it encapsulates.
This would be an obscure and remote technicality that I doubt anyone would touch were it not the heart of the matter – the stated intention of the Slaughter Rule is to avoid accountability. Both Slaughter and Pelosi are on record as saying such.
A representative in the house who is in the minority would, IMO, have standing to bring a suit, given that a very provision that the founders put in Article one in order to create accountability is being willfully discarded. Regardless of the rule making power of the House, they can’t make rules outside the boundaries laid out in Article 1.
Yes – self executing rules have been used in the past. But aren’t these different facts? Isn’t the stated intention of avoiding accountability different, and hasn’t the minority been deprived of it’s right to a recorded vote on the specific and discreet question of the Senate bill?
(yes – I conceded this argument to Benjamin on a different thread a few days ago on the basis that the rule making power of the House is absolute as long as the majority can amend a rule at any time, but I am Irish and it is St Pat’s day, so someone please indulge me …)
March 17, 2010, 6:08 pmConfused says:
I’m a bit confused by this deem and pass discussion. Liberal blogs have noted that there will be a vote by the house, which is why we keep seeing articles every day on who in the house will vote which way. How is that vote being discussed not sufficient? I’m not saying it is. I’m just honestly confused by all of this.
March 17, 2010, 6:11 pmAdam Sullivan says:
My understanding is that enrollment is pretty powerful. Furthermore, remember that the Congress is a separate branch entirely and have very few restrictions on how it may operate given its rule making powers. I can understand why the court would be wary in tinkering in procedural matters unless those procedures clearly go outside of what article 1 allows.
March 17, 2010, 6:16 pmAdam Sullivan says:
It is that the “vote” is on a rule and not the bill itself. If you look up Pelosi quotes and Slaughter quotes from last week you will find that they explicitly crafted the rule to give wavering members of the house an excuse of “I voted for the rule and not the bill, and the Senate tricked me on reconciliation” to tell voters in November.
The rule is supposed to have a scheme wherein the Senate bill is passed conditionally on the Senate accepting the House terms on reconciliation via reconciliation. That way there is no debate in the Senate and they can pass it by simple majority and prevent filibuster.
We are all waiting on the particulars of the rule itself and what the reconciliation terms are.
March 17, 2010, 6:21 pmfrankcross says:
Maybe I’m too much of a positivist, but I have trouble calling something unconstitutional if the Court approves it. I may disagree with the Court’s ruling, but I would put their conclusions above my own. Or those of other professors
March 17, 2010, 6:24 pmOff Kilter says:
So the argument is that there can be unanimous opinion among the Supreme Court (as they write in their diaries, print in their memoirs, discuss informally among themselves) that Congressional Rule X is unconstitutional and ALSO be unanimous opinion among the Supreme Court that NOTHING CAN BE DONE about it (short of a Constitutional amendment, I assume.), that X can be used to make law even while being widely recognized as unconstitutional?
IANAL, but I must say, speaking for NLs everywhere, that this is a very depressing result of Constitutional jurisprudence.
March 17, 2010, 6:26 pmmls says:
I think that this case is potentially distinguishable from Field v. Clark. Cases like Field involve factual questions about who did what in Congress, or what bill was actually passed. The courts do not want to be in the position of questioning Congress’s veracity on such matters.
But this case would involve a pure legal question– can the House pass two bills with a single vote? This is much closer to the kind of issue that the Court resolved in the line item veto case.
Which is not to say that the courts would hold the dispute justiciable– my guess is that they would still be reluctant to do so. But I wouldn’t assume that Field controls.
March 17, 2010, 6:27 pmDangerMouse says:
Courts get things wrong all the time. They’re not infallable. The Supreme Court can get things supremely wrong. Heck, the fact that the Court reverses decisions it previously made indicates that just because they say something is or isn’t constitutional at one point in time doesn’t mean that’s the final answer.
March 17, 2010, 6:28 pmKent Scheidegger says:
An officer of the United States who certifies something he knows to be false has committed a crime.
March 17, 2010, 6:33 pmDangerMouse says:
If the courts hold that the issue is not justiciable, and Congress continues to blatantly violate the Constitution, then several things may happen:
1. The people will violently revolt, if they are unable to otherwise vote out Congress or to stop the institution as a whole from violating the Constitution. Or
2. The people will accept blatant violations of the Constitution from Congress, and as a result will accept other blatant violations of the Constitution by the executive and even the judicial branches, until they’re more and more accustomed to slavery. One day, the Country won’t be governed by the Constitution anymore, but by then it will be too late.
What’s troubling is that the short-term politics involved by libs in getting to pass this unpopular law have overwhelmed any remnants of common sense they may have had regarding the operations of good government and respect for the rule of law. Do the Democrats seriously believe that this is the approach to lawmaking that Madison, Jefferson, Washington, and Adams would have upheld?
March 17, 2010, 6:33 pmJ. Aldridge says:
But that is true for most federal laws and judicial decisions. I don’t know why anyone would be concerned about it now.
March 17, 2010, 6:36 pmcboldt says:
Taking the Mystery out of the “Deem Scheme”
March 17, 2010, 6:36 pmThe “two bills” playing in the senate collapse into one bill for presentment, if both chambers agree on the language of that one bill.
The “deemed passed” condition of HR 3590 is a temporary legislative fiction, used to avoid the formality of amending HR 3590. The House rule (which will get a roll call vote) says “Deem it passed, but before it’s enrolled, change it.” The method of ordering it changed is a second bill, a House Concurrent Resolution. H.Con.Res. must e agreed by both chambers, but the “law” it creates has no effect outside of Congress, so H.Con.Res. “reconciliation” will never be presented to the president – not even if it passes.
If the House and Senate agree on “reconciliation,” then the clerk will follow the language in the reconciliation bill, which is in the nature of “Take HR 3590, and make the following insertions, deletions, and changes.” At that point there is one bill that genuinely and honestly reflects the will of both chambers.
Voila, no constitutional infirmity.
Bigtime monkey business as to following their own rules, but that’s to be expected.
Elliot says:
Where would such suits be filed, and how long would they take to get to the SC?
March 17, 2010, 6:42 pmfrankcross says:
Dangermouse, courts do get things “wrong,” at least in the sense that they later reverse themselves. However, for any court decision, I think they are more likely right than you are (or I am) or anybody else.
As for your theories on blatantly violating the constitution, that horse has left the barn. This has already been used dozens of times. But it’s not blatant, its at best debatable.
You don’t seem to admit the possibility that your position could ever be wrong.
March 17, 2010, 6:48 pmArthur Kirkland says:
“Deeming” that war has been declared has seemed to work, for good and for bad — with respect to trillions of dollars; life or death (or dismemberment, or dislocation) for many people; incalculable stress on military families; warping our national character with respect to torture and other treatment of detainees — for decades.
I wouldn’t count “deem” out entirely, and the “not true” definition seems to have been rejected by American history.
March 17, 2010, 6:49 pmConstantin says:
However this ends up, the calculation that “we’ll just get this thing passed and it’ll go away” is going to prove a short-term disaster.
I’m almost hoping it passes just to see what happens. There are millions of people who are going to explore all other nonviolent options before sucking it up and paying for other people’s medicine and abortions, via a charade somewhere near a majority deems (sorry) illegitimate.
March 17, 2010, 6:51 pmOff Kilter says:
Frank Cross: Here’s what seems to me a problem with your “logical positivist” view of the Constitution. In Plessy (1896), the Court ruled one way. In Brown (1954), they ruled another way. No formal change to the Constitution occurred in 1954. So the question comes up, in the 58 years between the rulings, was “separate but equal” constitutional? Doesn’t it seem strange to say that X both is and is not Constitutional at two separate times during which there has been no formal change in the document?
March 17, 2010, 6:57 pmArthur Kirkland says:
Is your musket loaded? Are the tea partiers preparing to rush the Capitol, singing “Onward Christian Soldiers?” Will improved access to health care be the precipitate that dooms the Great American Experiment?
If the revolutionaries need a hand, try tax protester organizations and white supremacist sites, such as StormFront.
Some Enemies of the People may resist, and don’t forget that an army marches on its stomach. So be prepared. Maybe Sarah could lay in a bunch of moose stew.
March 17, 2010, 7:00 pmh2u says:
I find it rather amusing that this is what you think the legislation being discussed accomplishes.
March 17, 2010, 7:06 pmArthur Kirkland says:
Since when has America become an a la carte buffet line, with citizenship responsibilities variable by personal preference? Plenty of people don’t like paying for what they perceive to be misguided, counterproductive, deadly invasions of Iraq and Grenada. Some dislike paying for blood transfusions. Others object to military chaplains. Some, relying on American law and tradition, would prefer not to pay for torturers or their implements. Heartfelt opposition to the death penalty is no greater moral issue than belief that a pills that prevents implantation of a collection of two or more cells is a murder weapon.
Anyone who does not wish to help to pay for lawful expenses of a representative government of the United States of America should move.
March 17, 2010, 7:11 pmSimon Dodd says:
Marshall Field obviously has limits; in Munoz-Flores, Scalia urged that the court resolve the origination clause challenge on enrolled bill rule grounds, but the court pressed ahead and pulled back the veil anyway. So the question isn’t whether the enrolled bill rule has limits, but what they are.
March 17, 2010, 7:15 pmConstantin says:
Grenada? The desperation is worse than I thought. The patriotism-baiting is a particularly nice touch.
March 17, 2010, 7:27 pmPeteP says:
Idaho seems to have problems with the bill :-)
http://www.google.com/hostednews/ap/article/ALeqM5g0LSHNfmnWDnZ_JylqiFxeT5GKEQD9EGLNDO0
“Idaho first to sign law aimed at health care plan
By JOHN MILLER (AP) – 46 minutes ago
BOISE, Idaho — Idaho took the lead in a growing, nationwide fight against health care overhaul Wednesday when its governor became the first to sign a measure requiring the state attorney general to sue the federal government if residents are forced to buy health insurance.
Similar legislation is pending in 37 other states.”
How much you wanna bet they’d sign on to a suit over process, as well as policy ?
March 17, 2010, 7:35 pmMark Field says:
I have to think the history of the procedure would be considered by the courts as relevant to its constitutionality.
March 17, 2010, 7:36 pmAndrew says:
I wrote to a knowledgeable person on capitol hill today:
Here’s the reply from Mr. X:
I wrote back to ask if I can quote him by name, but haven’t heard back yet.
March 17, 2010, 7:42 pmAndrew says:
cboldt, that’s not how they’re planning to do it. HR 3590 IS going to be presented to the president without first being modified according to whatever the House and Senate can agree to.
March 17, 2010, 7:48 pmBrett Bellmore says:
The enrolled bill doctrine makes exactly as much sense as the courts saying that, in traffic cases, if the driver says they were obeying the law, the court isn’t going to inquire further. It’s just another example of how the courts are determined not to let the Constitution inconvenience the government.
But the courts are so determined, and I wouldn’t bet good money on the judiciary setting aside enrolled bill doctrine, no matter how blatant the violation.
March 17, 2010, 7:49 pmjrose says:
Firstly, there are two votes: one on the rule and one on the reconciliation bill. Secondly, what is the relevance of one bill going to the Senate and the other to the House to this argument?
March 17, 2010, 7:53 pmcboldt says:
– HR 3590 IS going to be presented to the president without first being modified according to whatever the House and Senate can agree to. –
March 17, 2010, 7:59 pmThat is one possible way to advance the bill, but it would require the House to vote on HR 3590 rather than “deeming it passed so they can order the clerk to change it before it is enrolled.”
Without hypothetical language in H.Con.Res. “reconciliation,” there is no way to evaluate how the ploy advances. If H.Con.Res. “reconciliation” opens with “strike all after the enacting clause [of HR 3590], and substitute …,” what goes to the Senate, and what goes to the president? Are you saying that if the House says “deem HR 3950 passed but strip it and put our bill in there,” that the House is really saying “we pass the Senate’s bill”?
Andrew says:
The first vote (on the rule) does not pass any bill, and no one is seriously claiming that it can. It only sets the stage for what happens later. If there is no second vote, then no bill is passed. If there is a second vote, then Speaker Pelosi intends to assert that both the Reconciliation Bill and HR3590 have passed.
As to the relevance, see Article I, Section 7 which precludes such things.
March 17, 2010, 7:59 pmjrose says:
Didn’t the Senate parmilentarian frown on this approach, and instead require HR 3590 to be signed into law prior to the Senate considering the changes embodied in the reconciliation bill?
March 17, 2010, 8:01 pmArthur Kirkland says:
The side threatening violent revolt over a health care bill thinks those who will be pleased by the upcoming enactment are the desperate ones?
March 17, 2010, 8:02 pmArthur Kirkland says:
Here’s a tip to save the residents of Idaho some legal fees: Check on whether Mississippi’s attorney general still has the briefs and research memoranda from the James Meredith case.
You’re welcome.
March 17, 2010, 8:05 pmAndrew says:
The House is preparing to pass HR3590 as amended and approved by the Senate in December. The House will do that by taking a single vote that passes a Reconciliation Bill while simultaneously “deeming” that HR3590 as amended and approved by the Senate is passed. Then HR3590 as amended and passed by the Senate, and as “deemed” passed by the House, will go to the President for signature. Only after the President signs it will the Senate entertain the Reconciliation Bill passed by the House in the simultaneous vote.
March 17, 2010, 8:06 pmjrose says:
You didn’t explain the relevance of one bill going to the Senate and the other to the President. If you are correct about Article I, Section 7 – then it should apply to all the other cases of “deemed pass” referenced throughout these recent threads.
I’m persuaded by Jack Balkin that the vote on the rule if it explicitly states the subsequent vote on the reconciliation bill adopts HR 3590 as passed by the Senate word-for-word, coupled with the vote on the reconciliation bill, satisfies Article I, Section 7.
March 17, 2010, 8:06 pmcboldt says:
– Didn’t the Senate parmilentarian frown on this approach, and instead require HR 3590 to be signed into law prior to the Senate considering the changes embodied in the reconciliation bill? –
March 17, 2010, 8:10 pmA few points to make on that one. First, the news reports are “people say,” there is no quote from the parliamentarian. Second, when told that his office asserted a bill had to be signed by the president before reconciliation could operate on it, Mitch McConnell reported that his office was very careful with its wording. I take from that, that “signed into law” is not necessarily synonymous with “signed by the president.” Third, the reconciliation statute says that reconciliation is a concurrent resolution (that is a significant denomination – law has no effect outside of Congress), directing the Clerk of the House or Secretary of the Senate to “to make specified changes in bills and resolutions which have not been enrolled.”
Andrew says:
No, it all depends on how “deem and pass” is used. Never in U.S. history have two bills been approved simultaneously by a single House vote, with one of those bills then going to the Senate and the other going to the President for signature. This is a complete departure from previous uses of “deem and pass.”
I agree with Balkin. He says:
According to the “Slaughter Solution,” however, the President would only sign one of the two bills, before the Senate approves the other (Reconciliation) bill.
March 17, 2010, 8:18 pmOctavian says:
Hmmm…that’s probably the same type of attitude possessed by the Loyalists when they heard that those ungrateful, stupid Colonials were threatening to violently revolt over a mere tax on tea.
March 17, 2010, 8:22 pmcboldt says:
– The House will do that by taking a single vote that passes a Reconciliation Bill while simultaneously “deeming” that HR3590 as amended and approved by the Senate is passed. Then HR3590 as amended and passed by the Senate, and as “deemed” passed by the House, will go to the President for signature. –
So, let me get this straight. The House passes a rule that has two parts. The first part deems passage of HR 3590, and the second part specifies the consideration and taking of a vote on a concurrent resolution. The two parts (in the same rule) are connected, in that the rule says if part two isn’t passed, then the result is the House did nothing with HR 3590. OK so far?
Now, when the House passes this rule, part one goes into immediate effect, with no consideration whatsoever about what part two calls for. As a result, HR 3590 is sent to the clerk to be enrolled, the Speaker of the House and President pro Tempore of the Senate sign the enrolled bill of HR 3590 as passed by the Senate (signifying that this is the will of both chambers), and the bill is forwarded to Obama.
Next, unless Obama signs this (making it law), the second part of the rule can’t come into play. Hypothetically of course, because he will sign the Senate bill.
With all that out of the way, we go back to part two of the rule, and see what it says. Oh, it says to change HR 3590. But wait, that bugger is gone already, Too bad, so sad. Well, somehow we get around this, and using the concurrent resolution, the Clerk of the House scribes up the mutually agreed language. But here we have another problem, concurrent resolutions have no force outside of Congress. They do not make public law. Too bad, so sad again.
I think a more practical approach is to read and put effect to both parts of the rule, while all the language is still in Congress. That way neither chamber is attesting it agrees with what it does not, in fact, agree with, and only one bill is enrolled (expressing the will of a majority of each chamber), and only one bill is presented to the president.
March 17, 2010, 8:23 pmJ. Aldridge says:
In a restaurant somewhere in Washington D.C. …
Waiter: Good afternoon. May I take your order?
Pelosi: Yes. I want a tuna salad sandwich on whole wheat, with cole slaw on the side and a Diet Coke. Bring it as soon as possible. I’m in a hurry.
Waiter: Yes, ma’am.
Thirty minutes later…
Pelosi: Waiter!
Waiter: Yes, ma’am. What is it?
Pelosi: I ordered my lunch a half-hour ago and it’s still not here! I said I was in a hurry.
Waiter: Oh, the restaurant has deemed that you received your lunch and have eaten it.
Pelosi: That’s ridiculous. I haven’t received my order, and I haven’t eaten anything.
Waiter: Perhaps I wasn’t clear. The restaurant has deemed that you have already eaten your tuna salad sandwich and the side order of cole slaw and that you have finished drinking your Diet Coke.
Pelosi: What is this “deemed” shit?
Waiter: We figured you would know.
Pelosi: uh…
Waiter: We’ve also deemed that your bill is $13.75. Please pay the cashier. Have a nice day.
March 17, 2010, 8:24 pmOctavian says:
The British Crown’s royal courts did such a wonderful job stopping the Colonials’ uprising in 1776.
March 17, 2010, 8:24 pmAndrew says:
I’m sorry cboldt, but that is mistaken. The reconciliation statute says:
In this case here, Congress has chosen to pursue a “reconciliation bill” instead of pursuing a “reconciliation resolution.” That is why the vote on Saturday will be on a “Reconciliation Bill.” Congress made this decision to not use a “Reconciliation Resolution” last April, when it passed S. Con. Res. 13.
March 17, 2010, 8:25 pmjrose says:
The concurrent resolution is a reconciliation instruction, not the reconciliation bill. The former only gives instructions to committees on how to craft the bill.
March 17, 2010, 8:28 pmras says:
A question that has come up elsewhere:
The bolded section is the part in question. If a rule is passed deeming the healthcare bill to be passed, then what vote tally “shall be “entered on the Journal of each House respectively” for the healthcare bill?
Would the yeas/nays for the deeming be the ones that go on record for the healthcare bill?
March 17, 2010, 8:28 pmConstantin says:
That a revolt makes more philosophical sense, and has more of a historical foundation, and probably is as logically and morally defensible, than what’s happening right now in Congress tells you a lot about the latter.
March 17, 2010, 8:29 pmAndrew says:
No. According to the Slaughter Solution, the House will begin by passing a rule. The Rule simply says that a future vote for the Reconciliation Bill will have the effect of automatically passing HR3590 as amended and passed by the Senate.
March 17, 2010, 8:30 pmras says:
A question that has come up elsewhere:
The bolded section is the part in question. If a rule is passed deeming the healthcare bill to be passed, then what vote tally “shall be entered on the Journal of each House respectively” for the healthcare bill?
Would the yeas/nays for the deeming be the ones that go on record for the healthcare bill?
(Re-commented because the first attempt seems to have disappeared without explanation; my apologies if both attempts suddenly show up at the same time).
March 17, 2010, 8:31 pmcboldt says:
– In this case here, Congress has chosen to pursue a “reconciliation bill” instead of pursuing a “reconciliation resolution.” –
March 17, 2010, 8:36 pmSo the rule will deem HR 3590 passed, and then propose taking up HR “reconciliation” and not H.Con.Res. “reconciliation.
Well, as you know, I believe you are wrong. I haven’t seen either, a proposed rule (H.Res.) or proposed “reconciliation whatever,” and am working off informed speculation about what process best serves the institution of Congress as a whole, and the House and Senate as independent bodies. But of course, I could be wrong – and as far as you are concerned, I am in fact, without a doubt, wrong.
Andrew says:
This may clear up confusion in this thread:
—Congressional Research Service (emphasis added).
March 17, 2010, 8:37 pmjrose says:
You still haven’t explained why this distinction makes any difference. The text of Article I, Section 7 doesn’t make any such distinction.
Balkin is not arguing the President must be presented both bills at the same time.
March 17, 2010, 8:38 pmjrose says:
No. The rule deems HR 3590 passed only when the reconciliation bill is passed.
March 17, 2010, 8:42 pmcboldt says:
– The Rule simply says that a future vote for the Reconciliation Bill will have the effect of automatically passing HR3590 as amended and passed by the Senate. –
March 17, 2010, 8:43 pmThat’s the same as a rule having two parts. One part being the future approval of reconciliation, and the other part being the “deemed passed” situation. The contents of the House-passed reconciliation might have some bearing on what the will of the House is, as far as ultimate disposition (enrollment and presentment) of HR 3590 is (in my speculation – in yours, the reconciliation resolution can’t have any effect until HR 3590 as passed by the Senate is signed into law, and HR reconciliation will be a stand-alone that could, but need not, change anything in what is now HR 3590)
cboldt says:
– No. The rule deems HR 3590 passed only when the reconciliation bill is passed. –
March 17, 2010, 8:44 pmHow is that different from “if reconciliation is not passed, then HR 3590 is not deemed passed”?
Andrew says:
Previous uses of “deem and pass” involved a single bill. Here we have two bills. That’s a big difference, and the requirements of Article I, Section 7 have to be satisfied for each bill. Doing something with one bill is not automatically precedent for doing something analogous with two intertwined bills.
Regarding Balkin, he said: “At that point the President can sign the two bills.” He did not say: “The President can sign one of the bills before the other has passed both houses.”
March 17, 2010, 8:46 pmfrankcross says:
Off Kilter, there’s good argument that “yes, it was.” Separate but equal was constitutional and then became unconstitutional. That’s what a positivist would say. The thing people overlook is that the Constitution not only contains substantive provisions, but procedural ones. The interpretation of the substantive provisions is subject to the procedural provisions. There is no Constitution in the air, exempt from the procedural provisions.
But I’d be happy, if you disagreed with that, to rest on the Court knows better than we do.
March 17, 2010, 8:51 pmMike O says:
The Supreme Court ruled that the college must admit Meredith. Mississippi then enacted a law which would have kept Meredith out. Meredith was finally allowed to attend after the Governor and the U.S. Atty General (Bobby Kennedy) reached an “agreement”. What that says to me is that the state law would have been successful. I am glad to see that Meredith was finally able to attend regardless of the racist Democrat governor’s attempts to deny him equal rights.
March 17, 2010, 8:54 pmArthur Kirkland says:
Isn’t this really about precious bodily fluids?
March 17, 2010, 8:57 pmOrder of the Coif says:
No. But it does mean that the Constitution, when it is most needed, is a farce.
The Supreme Court is just a jobs program for the nine luckiest older lawyers. The Emperor has a nice robe, yes?
March 17, 2010, 9:05 pmcboldt says:
– The concurrent resolution is a reconciliation instruction, not the reconciliation bill. The former only gives instructions to committees on how to craft the bill. –
So “[for purposes of subsection (c)] a reconciliation resolution is a concurrent resolution directing the Clerk of the House of Representatives or the Secretary of the Senate” is construed as giving instructions to a committee?
March 17, 2010, 9:06 pmI agree that a concurrent resolution could direct one or more committees, also from 2 USC 641 is “If a concurrent resolution containing directives to one or more committees to determine and recommend changes in laws, bills, or resolutions is agreed to …”
I also agree that reconciliation can amend or repeal public law.
jrose says:
Repeatedly pointing out this distinction without making an argument as to how the text of Article I, Section 7 concludes that distinction is relevant, does not make for a persuasive argument.
Just to make sure I understand your position (even without the rationale behind it), you believe if the Senate passes the reconciliation bill prior to the original bill becoming law, the result is constitutional?
He didn’t say he couldn’t. Unless he sees the distinction that apparently only you see (if he did, he would have explained it), he believes the Constitution either permits the President to sign the first bill before the Senate takes up the second, or to sign both bills after both have been approved by both houses.
March 17, 2010, 9:09 pmOctavian says:
I’m sure that’s just what Lucius Tarquinius Superbus asked Lucius Junius Brutus.
March 17, 2010, 9:10 pmPersonFromPorlock says:
OK, if I understand it, voting for the Reconciliation Bill (“we want to make these changes to the bill the Senate has passed”) also effectively passes the Senate Bill. Is there anything to prevent the Senate Bill, now also passed by the House, from being immediately signed by the president, and the Democratic leadership then saying to the House, “fuggedaboudit.”
March 17, 2010, 9:12 pmAndrew says:
It would be really helpful not to focus on any “reconciliation resolution,” for the reasons I explained above. A “reconciliation resolution” is hypothetically allowed, but Congress never uses them, and they definitely are not going to use one in this instance (they made that decision in April 2009).
March 17, 2010, 9:18 pmAndrew says:
That’s an extremely unlikely scenario, because the Senate almost never rubberstamps a House reconciliation bill without making changes.
March 17, 2010, 9:23 pmjrose says:
It isn’t different, and thus a correct statement. But you said, “[n]ow, when the House passes this rule, part one goes into immediate effect, with no consideration whatsoever about what part two calls for.” That statement is not true.
March 17, 2010, 9:26 pmjrose says:
Refusing to clarify your position is also not conducive to being persuasuive.
March 17, 2010, 9:28 pmjrose says:
Nothing constitutional or otherwise in the law prevents this outcome.
March 17, 2010, 9:33 pmAndrew says:
Jrose, I’m not refusing to do anything. Consider the previous threads where we’ve gone into great detail about the requirements of Article I, Section 7.
My main point in this thread is simply that we are now confronting a situation that has significant differences from past uses of “deem and pass”.
Can you point to any previous instance in U.S. history where two bills were approved simultaneously by a single House vote, in which the bill going to the President was intended to be amended by the bill going to the Senate? Ain’t never happened. So, for people to jump up and down saying “The GOP used deem and pass!!!” is not anywhere near conclusive as to whether the GOP is being hypocritical in the present instance.
March 17, 2010, 9:37 pmjrose says:
A reconciliation bill can, not a reconciliation resolution.
March 17, 2010, 9:39 pmjrose says:
I’m not arguing about who is, or is not, being hypocritical. I’m arguing about the constitutionality of “deem and pass”. If “deem and pass” was constitutional in the past, why isn’t it in this instance? Merely stating that this instance is different continues to fail to explain why those differences are determinative.
March 17, 2010, 9:43 pmras says:
How have past “deemed” bills or amendments been recorded as to their votes? By the numbers voting for the deeming, might I presume? Or by the numbers voting for the triggering event?
March 17, 2010, 9:48 pmAndrew says:
Because we have a very different situation here. It’s like saying, if “firing a handgun” was legal when Joe was fighting off an attacker, why isn’t “firing a handgun” legal when Jane wants her husband to go away?
If you want me to compare two particular uses of “deem and pass” then please describe the previous situation.
March 17, 2010, 9:48 pmcboldt says:
– But you said, “[n]ow, when the House passes this rule, part one goes into immediate effect, with no consideration whatsoever about what part two calls for.” That statement is not true. –
March 17, 2010, 9:59 pmI was hypothesizing the process Andrew was asserting is going to take place. I misspoke “rule” for “reconciliation” in one place, and as far as I can tell, he is sticking to HR 3590, as passed by the Senate, going into effect upon HR 3590 being deemed passed, which occurs if and when the House passes reconciliation (not the rule). And in Andrew’s version, passage of reconciliation has no effect on the contents of HR 3590 as it sits in Congress – it can’t have any effect until HR 3590 (as passed by the Senate) is enrolled, presented, and signed into law by the president.
jrose says:
The Gephardt Rule (House Rule XXVII).
Per the above link, the “deeming” vote.
March 17, 2010, 10:03 pmjrose says:
If you change “upon HR 3590 …” to “upon the President signing HR 3590 after the House passes the reconciliation bill”, you’ve got it.
March 17, 2010, 10:07 pmmerevaudevillian says:
On the other side, we have Pam Karlan:
March 17, 2010, 10:12 pmmls says:
Jrose- I think part of the problem is that people are confusing two separate issues. Whether it is ok to “deem and pass” instead of voting directly on a bill is one issue. But there is an entirely separate issue of whether it is ok to package multiple bills together for a vote on final passage.
In my view, it is the latter that is the serious constitutional question here. One way of looking at it, as McConnell is doing, is to say that whatever “language” the House passes must be approved, in exactly identical form, by both the Senate and the President in order to become law. Thus, if the President signs only a part of the “language” (ie, the Senate bill), then the constitutional requirements haven’t been met.
The counterargument to that is that the Constitution doesn’t refer to “language,” it refers to a “bill.” But the Constitution doesn’t define what is a “bill” and, up to this point, a “bill” has always been “language” approved by each House in a specific vote (leaving aside unanimous consent agreements, which are a special case). If it is not that, it raises some thorny problems. For example, could the House just vote to approve a whole bunch of provisions and leave it up to the Clerk as to how many “bills” to enroll? Or could it allow the Speaker to go over and negotiate with the Senate and just enroll whichever provisions the Senate agrees to in a single bill?
Or to take an example that has actually been proposed, could the House pass an appropriations law with multiple provisions and direct the Clerk to enroll each provision as a separate bill? This was the “separate enrollment” version of the line item veto act, and the Senate debated its constitutionality at some length in the 1990s. (Ultimately, Congress passed the enhanced rescission version instead, and the Supreme Court struck that down in Clinton v. NY.) Elizabeth Garrett has noted that the “extended debate in the Senate may reflect the reality that separate enrollment was really no less constitutionally problematic than enhanced rescission, and, given, its deeming provision that allowed all the little bills to pass without separate votes on each, its constitutionality was perhaps more dubious.”
It seems clear to me that voting on multiple bills in a single vote presents exactly the same constitutional problem as having a single vote on multiple provisions and then having them separately enrolled as multiple bills. I can’t think of even an arguable distinction. Moreover, the problem is closely analogous to that discussed in Clinton v. NY, in that the House is voting on legislation and leaving it up to others to decide whether all or only part of that legislation becomes law.
This is not to say that voting on multiple bills is necessarily unconstitutional. One can argue that it better complies with the formalism of Article I than did the enhanced rescission version of the line item veto. But it does raise a serious and novel constitutional question which has nothing to do with the “deem and pass” per se.
March 17, 2010, 10:23 pmAriel says:
This is a nit, but moving is not sufficient. You have to renounce your citizenship, or you are still liable for paying taxes above a threshold, and filing a form even below it.
March 17, 2010, 10:26 pmcboldt says:
– If you change “upon HR 3590 …” to “upon the President signing HR 3590 after the House passes the reconciliation bill”, you’ve got it. –
And the path to modifying HR 3590 before it is enrolled precluded, because the language of Section 202(c) of S. Con. Res. 13 precludes resort to a reconciliation resolution.
Now we wait for the rule and reconciliation to be proposed.
March 17, 2010, 10:26 pmAndrew says:
Just FYI, I’m not ignoring you. I’m trying to get up to speed on the “Gephardt Rule” ASAP so I can respond accurately. According to the “Gephardt Rule,” a measure raising the federal debt ceiling (by the amount required in a given year’s budget) automatically passes. According to the CRS, from the invention of the rule in 1979 (by Democrat Richard Gephardt) thru 2003, there was automatic engrossment in the House of 15 joint resolutions, 11 of which were ultimately enacted into law. (Incidentally, I think Tony Blankley may have misspoken in the Washington Times about whether a joint resolution can have the force of law.) Anyway, I’ve still got a bit more to learn, and am trying to track down a CRS report titled: “Developing Debt-Limit Legislation: The House’s `Gephardt Rule’”.
March 17, 2010, 10:38 pmjrose says:
If the House explicitly passed a rule prior to the vote on that appropriations bill that deemed each appropriation to be enrolled as a separate bill upon passage of the larger law, I’m convinced by Balkin, and by Clinton v New York, they could.
Although you argue, “the House is voting on legislation and leaving it up to others to decide whether all or only part of that legislation becomes law,” separate bills spawned from a deeming rule is something Congress explicitly voted on, not unlike explicit votes on separate bills. Both explicitly authorize specific “pick-and-choose” options for the President. In contrast, the resulting law after recession is something Congress never voted on.
Also if this hypothetical is not constitutional, wouldn’t every use of self-executing laws also be?
March 17, 2010, 11:08 pmAndrew says:
I can’t find that CRS report online, but maybe don’t need it.
According to the Gephardt Rule, there are essentially two legislative measures: (A) the budgetary bill, and (B) the joint resolution. The House essentially passes both in a single vote (the former explicitly and the latter implicitly). The budgetary bill (assuming it’s been passed by the Senate) would go to the President, while the joint resolution would go to the Senate. In the 11 instances where the joint resolution became law between 1979 and 2003, did the Senate approve both the House-generated joint resolution and the budgetary bill verbatim before the President signed anything? I do not know, but it seems potentially relevant. Do you know, jrose?
In any event, please note that the joint resolution was not meant to amend the budgetary bill, which is also a potentially relevant fact. As mentioned, never in U.S. history have two bills been approved simultaneously by a single House vote, in which the bill going to the President was intended to be amended by the bill going to the Senate.
March 17, 2010, 11:11 pmresh says:
Th enrolled bill doctrine. What a hoot. That’s like my saying to the IRS that, “No, really. I’ve never cheated on my taxes. Look! H&R Block even signed off saying so….”
March 17, 2010, 11:11 pmjrose says:
The budgetary bill is a continuing resolution, and thus is never presented to the President and never becomes law. Yes, this is a distinction from the current case. But, please stop merely repeating obvious distinctions and argue why any of these distinctions is determinative.
March 17, 2010, 11:28 pmAndrew says:
Okay, thanks for the info. I think it’s generally helpful to get the facts straight before analyzing them.
So, the facts according to the Gephardt Rule are as follows. There is only one legislative measure: a joint resolution. The House essentially passes both a non-legislative continuing resolution together with the legislative joint resolution, together in a single vote (the former explicitly and the latter implicitly). The joint resolution would go to the Senate. If the Senate approves, the President signs the joint resolution, and it is law. The continuing resolution never becomes law.
So, in the Gephardt situation, every legislative thing that the House votes for is approved verbatim by the Senate and signed by the President. Therefore, I see no constitutional problem with it.
In the Slaughter situation, only some of the legislative things that the House votes for are signed by the President. In my opinion, this is a flagrant violation of Article I, Section 7. It also violates the principles explained by the Supreme Court in cases like Clinton v. New York. The House cannot vote for a bunch of legislative stuff and have only part of it become law while the rest hangs in the wind. It’s all or nothing.
March 17, 2010, 11:38 pmmls says:
Jrose- If I understand you correctly, you are saying that so long as the Members understand what the rules are, there is no difference between passing a whole bunch of bills in separate votes, and holding one vote on multiple provisions that can be treated as separate bills. But there is a difference from the point of view of a Member who only wants to vote for some of the “bills”—in the latter situation she has no option to do that.
You could say tough luck, each Member has to decide whether to (1) vote against the entire package or (2) vote for the entire package and take the risk that some of it will not become law. So long as a majority has agreed to this procedure, what’s the harm? This is a perfectly respectable argument, but it is also very close to the argument that we made in the line item veto case. That argument did not prevail.
I am not sure as to your point about self-executing rules. As far as I know, these have not previously been used to pass multiple bills. In the case of the Gephardt rule, only one bill is involved—the other measure is a concurrent resolution which is not presented to the President and is not a “law” in the Chadha sense. So when Members vote on the concurrent resolution, they are only approving a single statutory text that may or may not become law.
I take it from your comment to Andrew that you think an analogous argument could be made with regard to the Gephardt rule, ie, that Members are being forced to vote on the concurrent resolution and the statutory amendment as a package. I suppose that is theoretically possible, but it would have to be based on something other than the lawmaking requirements of Article I, since only one of those measures is subject to those requirements.
March 17, 2010, 11:52 pmAndrew says:
“The GOP Did Deem And Pass! The GOP Did Deem And Pass! Big Deal.“
March 18, 2010, 12:30 amnice strategy says:
Norm Ornstein:
“In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don’t like self-executing rules by either party—I prefer the “regular order”—so I am not going to say this is a great idea by the Democrats. But even so—is there no shame anymore?”
Remember, none of this would be necessary if it wasn’t for the unconstitutional filibuster. Which I support only when Democrats are in the minority ;)
March 18, 2010, 1:48 amPJens says:
Why bother with the old procedure at all anymore? Good enough in the past and for this legislation, heck deem and pass can be the common denominator and used for all future law making.
Does deem and pass sound like the way our government ought to be commonly operating? I don’t think so. I certainly do not think this is the best way to pass serious, significant bills through Congress.
Shame on our law makers, SHAME!
March 18, 2010, 2:21 amMJW says:
The statement the the Republicans used self-executing rules is true, but so far I haven’t seen examples where they deemed bills to be passed. In Balkin’s piece he claims both Republicans and Democrats have deemed bills to be passed, and in that comment links to the CRS Report for Congress on self-executing rules. But as far as I can tell, all the examples given in the report simply use the rule to amend the bill being voted on. I’m not fond of the idea, because I think the vote should be on the exact words, not the words as amended by a rule. That is, however, a misdemeanor compared to the constitutional felony of using a rule to deem a separate bill passed.
March 18, 2010, 4:21 amAndrew says:
MJW, I think that the GOP did use the “Gephardt Rule” in the House to deem a “joint resolution” passed. And the joint resolution was subsequently approved by the Senate, signed by the President, and became law.
The big difference there was that all proposed law that the House voted on was approved verbatim by the President. Here in this Slaughter situation, some of the proposed law that the House votes on would be approved verbatim by the President, but some would remain in legislative limbo.
This would allow the House to speak with a forked tongue, and allow the President to sign something different from the legislation that the House votes on. So this Slaughter thing would be very different and much more unconstitutional than the Gephardt thing, IMO.
March 18, 2010, 5:03 amMJW says:
I sort of hate to keep harping on the same two cases, but when considering Field, it’s also worth looking at United States v. Ballin from 1892 and United States v. Munoz-Flores from 1990. In Ballin, decided soon after Field, the court looked into the passing of a bill to see if there was a proper quorum that was properly recorded. In Munoz-Flores, they looked at whether a bill violated the Origination Clause.
In the Public Citizen case, the D.C. court rather blithely dismissed the significance of Munoz-Flores because the SC ruled the bill in question wasn’t revenue raising, so the Origination Clause didn’t apply. The appeals court said, “The question instead was whether a provision that unquestionably had passed Congress constituted a bill for raising revenue.” I think their logic is faulty. First because the SC clearly indicated that if they had determined the bill was revenue raising, they would have then decided whether it originated in the house: “Section 3013 is not a ‘Bil[l] for raising Revenue.’ We therefore need not consider whether the Origination Clause would require its invalidation if it were a revenue bill.” Second, because they would not have taken the case if they couldn’t do so. Suppose the only question they could look at was whether it was a revenue bill, not whether it originated in the house. Then they could either decide it wasn’t a revenue bill, or decide it was, but they were precluded from looking further. In neither case could they grant any relief to Munoz-Flores.
March 18, 2010, 5:21 amDavid says:
I am not a lawyer, so you can ignore these comments if you wish. But as an engineer I am always concerned about failure conditions, and I see one here. If congress can define what it means to vote on a bill then what is to stop a majority from defining voting as whatever the leadership desired. So if the leadership deemed a bill passed, or even help a voice vote on a deemed passed bill and the chair at the time (one of the leadership team) banged the gavel and said the yea’s have it even though they are clearly in the minority (and I have seen this happen on the floor), then what is the difference between that and tyranny?
March 18, 2010, 5:56 amOff Kilter says:
David: “So if the leadership deemed a bill passed, or even help a voice vote on a deemed passed bill and the chair at the time (one of the leadership team) banged the gavel and said the yea’s have it even though they are clearly in the minority (and I have seen this happen on the floor), then what is the difference between that and tyranny?”
To paraphrase an old South Park line: Because we choose not to call it tyranny…
March 18, 2010, 6:28 amjrose says:
As I stated previously, recession was rejected because Congress never voted on the line items the President vetoed. In contrast, if the deeming rule explicitly lays out the exact language that will result in multiple bills from the subsequent single vote, then Congress has voted on the line items.
Andrew and you both appear to believe that using a single vote to pass multiple bills violates Article I, Section 7. Per above, I find the argument that Clinton v New York demands this result unpersuasive, and have yet to see any other argument to support your view.
March 18, 2010, 7:36 amjrose says:
Article 1, Section 7: “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.”
In contrast to your hypothetical, the Slaughter rule requires Congress to vote and record the results.
March 18, 2010, 7:53 amPersonFromPorlock says:
A very good point. Our contract with the government (the Constitution) is made of words and if government can redefine words at its convenience then the Constitution imposes no limits on government power.
March 18, 2010, 8:00 ammls says:
In the line item veto case, the act itself defined which provisions would be subject to “rescission” and therefore the Members knew when they voted on an appropriations bill that specific line items could be vetoed. It was argued, therefore, that this was no different than if they had voted each line item as a separate bill. One can argue that with “separate enrollment” they “really” vote on each item individually, but someone else can argue that they “really don’t” since votes are not taken on each item individually. You can find one perspective more convincing than the other, but I am not aware of anything in the Constitution or Clinton v. NY that definitively resolves the dispute.
You may believe that the “separate enrollment” version of the line item veto presents a stronger case for compliance with Article I. If you are right, it is possible that a single vote for multiple bills would survive constitutional scrutiny. I am merely trying to establish (1) this procedure raises serious and unsettled constitutional issues, (2)they have been recognized as serious and unsettled constitutional issues long before the current flap, and (3) they are different issues than “deem and pass.”
March 18, 2010, 8:21 amHogarth says:
Kind of like “Bush Lied” excuses for not standing behind their votes to authorize the war in Iraq.
I didn’t buy it then, and I’m not going to buy it in November.
Then again, I’m already on the record as “Never, ever, ever, ever, ever voting for a Democrat again.” Another ‘ever’ or two isn’t going to sway them.
March 18, 2010, 9:05 amBCurtis says:
Rules of procedure for the houses and the “procedure” defining how a bill becomes law are in separate Sections in Article 1 and should not be conflated.
1) Provision for allowing each house “to determine the Rules of its Proceedings” is in Art. 1, Sec. 5. Art. 1, Sec. 7, though, says, every “Bill” must pass both houses and that members must vote “for and against the Bill.” The logical conclusion is that the requirement that a Bill must pass both houses after a vote for and against the Bill is not a procedural rule within the discretion of the houses. This requirement is established by the Constitution and, thus, is substantive rather than procedural.
2) Art. 1, Sec. 7, says the members of the houses must “vote for and against *the Bill*,” i.e., not a rule related to the Bill. Giving the words their plain meaning, this requires a vote for or against *the Bill* on the merits.
March 18, 2010, 9:27 amAndrew Koenig says:
I have seen the suggestion in these comments that the real point of the Slaughter rule is to make the House’s passage of the Senate bill contingent on the Senate’s passage of the House’s amendments to the bill.
If things could actually work out this way, I can see why this strategy might make sense. But how does one square it with the Senate parliamentarian’s ruling that before the Senate takes up a reconciliation bill, the bill that it is amending must first be passed by the House and signed into law by the President?
March 18, 2010, 9:33 amA.W. says:
Well, i read over the decision, and they seemed to be facing a very technical challenge, saying, “look the official journal entry for this bill is not detailed enough.”
So they said basically, look we are not going to invalidate it just because the journal was not in sufficient detail. now then in dictum they say the question was non-justiciable, but you could always say that is just dictum.
Ultimately the authority of a case rests on how persuasive it is. To take that dicta to the ultimate conclusion, then, all they have to do is get the right people to proclaim something is a law and they can dispense entirely with the formality of actually voting at all, even for a deem and pass. The court dismisses this concern as being “unlikely” and i would agree with that. But unlikely is not the same as impossible, and this goes to the heart of our system. i think it has to be enforced.
I would add this from a political dimension. If a person votes to have it “deemed” passed, then the people will not draw any distinction between that and a real vote. But imagine if you do vote for the bill, it is deemed passed, and then God help you, the Supreme Court strikes it down. Then you will have voted for the awful thing, that carries with it the stigma of unconstitutionality, and you don’t even get the imagined “benefit” of it passing.
The more i think about it, the more i think the deem and pass issue was a desperate flailing attempt to find some way, any way, to get this passed. It makes me feel good to hear it, just as the defection of a democratic whip against the bill. I mean whips are supposed to be party loyalists, right?
March 18, 2010, 9:41 amZaggs says:
http://www.rules.house.gov/Archives/98-710.pdf
That gives a nice little brief over how the Self Executing Rule is supposed to be used. How congress wants to use it now doesn’t seem to be covered. It supposed to be used for deeming Senate amendments to house bills passed usually due to procedural issues. But this time the House wants to pass an entire Senate bill that differed significantly from the House version.
March 18, 2010, 9:53 amAmphipolis says:
That means that Congress is not necessary. All we need are the presiding officers’ signatures to enact any legislation without constitutional challenge.
It’s the Pelosi Rule – Pelosi rules.
And it’s fair. If we elect a congress that chooses such leadership, what do you know – that’s the leadership we have to live with.
March 18, 2010, 9:54 amTheReasonedMind says:
Art 1, Sec 7, Para 2 begins “Every Bill which shall have passed…” That clause delineates the point at which Art 1, Sec 7 is invoked to be AFTER any proceedings have concluded as to the generation and passage of a specific Bill.
Art 1, Sec 7, Para 2 continues “If after such Reconsideration…” as an indication of a specific action and a specific situation differentiated from the initial “Every Bill…”
To reach across the boundary of Reconsideration to apply the language of “But in all such cases…” is to ignore the specific distinction of Reconsideration as separate activities from the initial “Every Bill…”.
Art 1, Sec 5 prescribes the only limitations to be impressed upon the Congress during the deliberations to construct a Bill as “Each House may determine the Rules of its Proceedings…” provided “Each House shall keep a journal of its proceedings…”
Until a Bill, “…which shall have passed the House of Representatives and the Senate…” and pursuant to their individually governed proceedings under Art 1, Sec 5, is presented to the President in accordance to the Presentment Clause, there are no Constitutional limitations to how that Bill may be developed.
SCOTUS held in Field v Clark and McCulloch v Maryland that legislative proceedings were black-box activities such that no Court may review the means by which the Bill was developed. Only after the boundary of a single governmental branch is breached may the Court intercede and judge whether a specific act is constitutional. This is supported in Chadha and Clinton as both cases were founded in matters where one branch of government extended beyond its constitutional mandate to influence or direct activities solely designated to a coordinate branch of government by the Constitution.
March 18, 2010, 9:55 ammac says:
Hogarth, I’m with you. They’ll be televising the NHL playoffs live from Hell before I ever vote for a Democrat again. As for Arthur Kirkland, well, all I can say is that you’d be wise to remember that November is coming and that your political enemies will one day again rule. When they do, and pull dirty tricks like this to shove something you don’t like down your throat, don’t complain. Your side’s egregious disdain for the law will justify anything they choose to do, no matter how unconstitutional. If you end up in a concentration camp someplace, you’ll deserve it because you supported destroying the rule of law.
Meanwhile, the Dems better look at what happened to the last leftists that tried to take over a center-right country where the right was better armed. Neither Chile nor Spain are exactly shining examples of success for the left, unless one considers being utterly vanquished as a moral victory.
March 18, 2010, 9:57 amPaul A'Barge says:
I’ve said this before and I’ll say it again. Republicans have done this in the past. No two pieces of legislation are the same and if “Deem-ing” has been done before and especially has a bipartisan history, the Supreme Court will walk away from any challenge as though that challenge smells like dead fish.
We’re screwed and what’s even more important? We screwed ourselves … when we let our political party do this and then when America voted for the current lot of mutts including Obama.
March 18, 2010, 10:04 amDel E. says:
I just don’t get this at all.
I mean, when the 2005 Deficit Control Act was being challenged, I don’t remember it being discussed much on this blog?
I guess the “grave” constitutional questions posed by a Republican Deem-and-Pass rule slipped under the radar of the many insightful commenters on this string.
March 18, 2010, 10:07 amcboldt says:
– when the 2005 Deficit Control Act was being challenged, I don’t remember it being discussed much on this blog? –
March 18, 2010, 10:30 amNot much, but FWIW:
The Volokh Conspiracy – Rolled by the “Enrolled Bill” Rule – May 30, 2007
The stakes are a bit higher in the health care bill than they were for the procedural defect in passing the 2005 Deficit Control Act.
Concerned One says:
Nothing personal, Professors et.al, but are you people in favor of the “deem” theory nuts? Draw back a little and think about this. “Deem” in this sense means it passes? Huh? I may not have made the Professor status when I graduated law school fifty + years ago, but I did pass English 101. The American people know what this means and what this strategy is, and they can read English as well as you can. This is not, I submit, a question of Constitution law, but rather a question of good old plain common sense and the meaning of the English language. I am now, I supposed, drummed out of the ranks of Constitutional scholars, but such is life.
March 18, 2010, 10:31 amBill says:
If both Houses were to “deem” that a presidential veto had been overridden, would that then obviate the need for a 2/3 vote in each House? Why have votes at all? I deem this shenanigans to be way out of line!
March 18, 2010, 10:52 amSarcastro says:
[Takes a majority to deem, just like it does to pass, Concerned One. Thus, my "common sense" says this is fine.
Course, my common sense also says money isn't speech, and that abortion isn't murder, and a bunch of other stuff the recent spate of 'just folks' posters would seem to disagree with.]
March 18, 2010, 10:54 amPaul of Alexandria says:
Since this thread isn’t about the health-care debate per se I will just refer readers to other debates:
ObamaCare vs. the Hippocratic Oath at Pajamas Media, along with
What Do Detroit, the Postal Service, and Health Care Reform Have in Common?,
The following at American Thinker
The Big Lie of Health Care Reform
The Big Problem with Health Care Is Cost, Not AccessHealthcare Summit Democrat Demagoguery
Healthcare Summit Democrat Demagoguery,
and
Real Medicaid Reform at NRO,
just to give a few.
The basic problem with the “health-care reform” proposal is that it has little to do with solving any problems that we have with our health-care system, and everything to do with increasing the control that the Federal Government has over our lives.
As for “Deem and Pass,” the best argument is simply this: if the House has to go through these machinations to get a bill through, then something is very, very wrong.
March 18, 2010, 11:00 amBuckyDent says:
Away from anal retentive questions of legal formalism, does anyone give a damn as to whether or not it is right/moral/proper for the govt to effectively seize one-sixth of the economy over the clear unambiguous disapproval of the electorate?
March 18, 2010, 11:09 amPubliusFL says:
Also, with the Gephardt rule, a particular agreed-upon dollar amount is taken from the concurrent resolution and inserted into a boilerplate joint resolution. The “deemed passed” joint resolution is 100% consistent with the concurrent resolution actually voted on. In this case, however, the “deemed passed” bill conflicts in many substantial respects with the one actually voted on, but the one most likely to get signed into law is the one “deemed passed” rather than the one actually voted on. This conflict between the two bills, ISTM, is what raises the concern discussed by Prof. Balkin regarding the House taking “political responsibility” for what it passes and the importance of the president signing the “two bills” and not just one.
March 18, 2010, 11:17 amConcerned One says:
Sarcastro – are you saying this is only a semantical difference and therefore using the “deem” approach is OK because a majority approved it. Nonsense. The fact a majority approved the “deem” theory is beside the point. This is much more than a difference in language, and a drafting trick doesn’t erase that difference. “To pass or not to pass the bill, that is the point.” “To deemed to have passed or not to deemed to have passed” is not the same thing – no matter whether a majority votes for it or not. OK – we disagree. I can live with that, the mere fact you are wrong because a majority..(only kidding). Thanks for your response.
March 18, 2010, 11:29 amDavid Jay says:
blood ???
March 18, 2010, 11:33 amOrder of the Coif says:
When I was in the military the ONE RULE the impressed on us was “Never issue an order you know your men will not obey.”
Why? Because there is 1 officer and 50 to 100 troops. They obey you because of the perception that your are (1) acting for their benefit, (2) have better information, (3) have essential skills, AND (4) they believe you are correctly exercising your power for the correct objectives. If any of the 4 elements of command are missing, you are up shit cheek.
Omaba is now looking for his creek paddle.
March 18, 2010, 11:36 ambill-tb says:
Our entire Constitution, rests on defined written procedures – And none are clearer than how Bills become Law. Nation of laws, not of men, repeat right before Obama speaks. Removing these Constitutional procedures reduces America to the equivalent of the ordinary two-bit tin pot run, president for life democracy, like Saddam’s Iraq, or Chavez’s Venezuela. Heck even Stalin claimed a democracy, “peace jobs and democracy” was his May Day theme.
America will cease to exist as we know it, if these parliamentary tricks are allowed to stand.
The revolutionary war was fought because England was stealing the economic freedoms of the Americans.
March 18, 2010, 11:43 amcboldt says:
My analysis and speculation as to the process (use of H.Con.Res. as a means to amend ONE bill) has just been dealt a death blow. The reconciliation package is indeed a bill, not a resolution. The CBO estimate envisions the possibility of either (HR 3590 and amended by the Senate or HR 4872 as amended by the House) passing without the other, or both passing. By “passing,” I mean “being made into public law.”
CBO Report (1.7Mb pdf file)
H.R.4872 – Reconciliation Act of 2010 [At this time, there is no link to the substitute amendment from there, or to the House Report]
March 18, 2010, 11:46 amSarcastro says:
Holy crap, America has been gone for years, and we didn’t even know it!
Also, INTERNET CIVIL WAR 2! This time – it’s personal!
March 18, 2010, 11:51 amBrian G. says:
It is certainly constitutional but the problem is that there is still a right-wing radical majority Supreme Court that hates Obama and will do anything to make sure he fails. Plus, Clarence Thomas won’t recuse himself, even though his wife is out there shilling for the right-wing all over the country. I am sure she is just “earning” money for their retirement and has no influence over him at all.
Funny how when the black President signs the most important bill in generations for women, children, and minorities to have the same equal access to health care that rich white people have, and it is something a huge majority of this country wants, the Republicans scream some nonsense on how it wasn’t passed properly, because they can’t win in the court of public opinion. Fox News is the only one screaming that everyone is against this. All of my friends support free health care, so I don’t understand where they are coming from other than from the far right wing.
March 18, 2010, 11:54 amM. Report says:
A Brief History:
http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/House-Rules-Committee-GOPer-memo-says–87975187.html
Nobody minds a little ‘Home Cooking’
March 18, 2010, 12:01 pmby the referee of a Basketball game;
If the Ref trips one of the players,
and kicks him when he is down, that is
grounds for the fans replacing the Ref.
David says:
And when the House calls for a voice vote the clerk records that the Yeas have it and off they go. Again totally ignoring the Constitution.
March 18, 2010, 12:04 pmTacoBill says:
Lots of wasted breath here.. HR3590 will pass in the original Senate text, then the Hosue will be dismissed for a holiday. Pelosi wil rush it up to the White House where it will be signed. PERIOD. All this reconciliation hoopla is a distraction- a false flag operation in military terms. There will no be reconciliation vote. no further Senate action and no Constitutional issues.
March 18, 2010, 12:11 pmTheReasonedMind says:
The actions governing Reconsideration are explicitly defined in Art 1, Sec 7:
“…but if not [the President] shall return [the Bill], with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”
March 18, 2010, 12:15 pmPaul of Alexandria says:
Talk about a racist comment! It doesn’t enter your mind, Brian, that perhaps – just perhaps – the President and the Progressive Democrats are wrong? That they are violating the spirit and substance of our Constitution and the reasons for which this country was founded? No, of course not. Just because the president happens to be of African descent, any disagreement with him must be racist.
Let’s be perfectly clear about one thing: everybody in the U.S. already has access to precisely the same health care system. Poor and rich alike, if you go to your doctor or to the ER you will be treated. The only question is: who pays for it. I see no reason why I should pay for your routine medical care, or that of anybody outside of my own immediate family. Furthermore, this “health care reform” plan will – as has been demonstrated time and time again – only end up destroying our health care system. There’s a reason why the socialist health care systems of England and Canada are routinely condemned and their subjects end up coming here for treatment. I might also point out that in most, if not all, European countries everybody has private health insurance in addition to their government coverage – because the government system actually covers very little.
March 18, 2010, 12:16 pmPaul of Alexandria says:
this is actually the most important part. Any problems with out existing health care system can be repaired fairly simply, mostly by removing government restrictions that cause problems: tort reform, allow health coverage to be transported between states and between jobs, differentiate between health coverage and health insurance, encourage people to pay cash for treatment instead of relying on health coverage (hospitals and doctors usually offer significant discounts for cash payments, because it reduces their paperwork overhead significantly). If you look carefully, this whole issue is nothing but a Progressive power grab.
March 18, 2010, 12:20 pmJR says:
Intolerable for whom? I could certainly tolerate it.
March 18, 2010, 12:40 pmMichael McNeil says:
Brian G.: is that you, Sarcastro?
March 18, 2010, 12:44 pmELC says:
ISTM it’s worse than you say: the only reason to resort to “deeming” the bill to have passed is because they can’t actually pass it.
On the other hand, from what I’ve been reading today, it looks like the Senate bill won’t have been deemed to have passed the House unless the Senate passes the House’s reconciliation bill. A lot of discussion (here and elsewhere) has assumed that the “deeming” would send the putative act to the president, but (as I understand things right now) that does not seem to be the case.
So, it looks to me like those who are saying that the House is delegating some of its own decision-making power to another body have a good case.
And I’m going to repeat what I (and Midwesterner) have been saying: a “Yea” vote on the Slaughter Solution involves a self-contradiction. It would be a vote to approve the Senate bill as is – but only after it will have been effectively changed (by the reconciliation bill). Which is necessary only because the Democratic leadership can’t get the votes to actually approve the bill. (Which they have to do because they can’t get another vote on it through the Senate because the Democrats of Massachusetts deprived the Democrats in the Senate of their 60th vote to invoke cloture.)
Honey, I will love you JUST the way you are NOW… after you’ve gotten a face lift, and lost a few pounds.
March 18, 2010, 12:50 pmSarcastro says:
[I suspect if Brian G and I were ever to meet, we would annihilate.
Imitation, flattery, etc.
But I'm still kinda sad. He did got a folks taking him seriously, despite his not actually engaging the issues or posters but rather going full-strawman.
Is that how the right thinks liberals really think? Declarative statement, everyone is radical, Race card, race-card, anti-FOX?
On second thought, in some places of the internet, that might be true.
Not here, though.]
March 18, 2010, 12:59 pmTulkinghorn says:
If both houses vote by more than 2/3 to ‘deem’ the veto overridden, then how is this different from single override votes in each house? I would deem that to be a distinction without a difference.
March 18, 2010, 1:09 pmSarcastro says:
OMG! He Deemed!
March 18, 2010, 1:12 pmhuh? says:
Why is this thread continuing? Octavian won this a while ago.
March 18, 2010, 1:14 pmjrose says:
Merely voting on what types of provisions would be subject to recission does not satisfy the voting requirements of Article 1, Section 7. In contrast, a rule which states that a subsequent vote will result in specific, exact language of multiple bills does satisfy Article 1, Section 7 in my view (essentially, Balkins’ argument).
I concur completely, but do note the distinction you raise between this “deem and pass” and ones used in the past rely solely (??) on the reasoning used to find the line-item veto unconstitutional.
March 18, 2010, 1:29 pmMJW says:
I agree completely. The government shouldn’t be able to tell the New York Times what they can print, but they should be able to restrict how much they can spend on paper, ink, and printing presses, and what they can pay reporters. That’s just money, after all.
March 18, 2010, 1:32 pmChristopher Cooke says:
This is a nice academic debate but I see it as academic, only, because the Marshall Field case will preclude any court inquiry. I think Judge McConnell forgot about that rule or didn’t think through the issues carefully enough. The DC Circuit decision (linked above) makes this clear. It will be interesting to see what happens, however, when a truly controversial bill such as this one is challenged in the courts and judges have to decide between partisan/policy preferences and clearly-established Supreme Court precedent. I can’t wait to see if Scalia, Thomas, Roberts and Alito, in particular try to wiggly around or overrule precedent to strike down healthcare reform that their party clearly does not like.
March 18, 2010, 1:44 pmSarcastro says:
Welcome to the offtopic train, MJW! That’s some fiine logic. Sounds almost like money isn’t just speech, it’s also abortions!
March 18, 2010, 1:45 pmELC says:
I agree with you completely. But that’s not what they’re talking about doing. They’re talking about “deeming” a bill to have passed (once the Senate has accepted the reconciliation bill) because it won’t pass if they actually vote on it. Otherwise, they would… you know… actually… um.. vote on it!
March 18, 2010, 1:48 pmMJW says:
I think Stupak agrees.
March 18, 2010, 2:12 pmSarcastro says:
[Have you been paying attention?! It takes a majority to vote for the deemification, which is tantamount to passage.
I see two motivations being put forth are 1) it prevents a roll-call vote, allowing some folks' to vote yay without being pegged as such, and 2) it allows the House to make sure the Senate will go along with the deal they've made, as the House doesn't trust the Senate.
Shady? Yep! Constitutional? Indeed. End of the Republic? Please.]
March 18, 2010, 2:17 pmyankee says:
I deem the minutiae of Congressional procedure to be one of the most boring subjects imaginable. I’m astounded that you all have come up with almost 150 comments without falling asleep.
March 18, 2010, 2:40 pmDaveS says:
@sarcastro Shady? Yep! Constitutional? Indeed. End of the Republic? Please.]
You think its “indeed” constitutional for the president to sign into law a bill which didn’t and couldn’t be passed by the house?
March 18, 2010, 3:15 pmELC says:
Of course, I know the “deeming” takes a majority. But so does just passing the damn thing by actually voting on it. So why don’t they do that? Because it won’t pass that way. It will only “pass” if the Senate accepts the House’s reconciliation bill, upon which the “deeming” will be done. They are doing it this way because the majority doesn’t want to vote for the Senate bill as is. They’re going to “deem” it passed because they can’t actually pass it. (Have I said that often enough? They have to “deem” it passed because they can’t actually pass it.) It’s not that the House doesn’t “trust” the Senate; it’s that the Democrats of Massachusetts deprived the Democrats of the Senate with the ability to pass the bill while following the rules that they adopted at the beginning of the Congress last year. Shady? Absolutely. Unconstitutional? Absolutely.
P.S. In case you didn’t notice, they’re only going to “deem” that it passed because they don’t have the votes to actually pass it.
March 18, 2010, 3:17 pmPersonFromPorlock says:
Later, a Republican House can deem that the bill never passed, so that it couldn’t have been signed by the President and therefore isn’t law.
March 18, 2010, 3:24 pmWhitehall says:
Mr. Cooke,
“Try to wiggly around or overrule precedent to strike down healthcare reform that their party clearly does not like”
Make that the voters, not the party. The voters are the only source of government legitimacy.
Remember what brought us here. The Senate passed a bill, by their own rules. An election happened focused on that very bill and now the Senate could not pass that same bill, again, according to their own rules.
The House is now considering the Senate bill, the one that couldn’t be passed by the Senate today – BECAUSE OF AN ELECTION.
But the House members don’t want to pass the Senate bill now either – because of upcoming ELECTIONS. The Senate would not today pass the House bill either.
The whole procedure is being implemented to get AROUND the will of the ELECTORATE as expressed by recent voting and as projected by many Congressmen facing re-election.
It is well understood by the players and the electorate that the Senate bill does NOT have the support of the majority of voters.
So, the response by Democratic Party leadership is SCREW YOU, VOTERS! WE’LL JUST FAKE IT.
So maybe the SCOTUS would step in and correct this and maybe they won’t. The real remedy is at the polls where elected officials who vote for this will have to face their bosses.
March 18, 2010, 3:35 pmSarcastro says:
[No, it won't pass by a straight up or down vote, cause the house doesn't trust the Senate to go along with the deal it made, as I said before. The reasons for the deal are irrelevant. Using this procedure to keep the Senate to it's deal sounds fine to me.
In the end, a majority of both houses are for what is passed, which is what the Constitution demands. The Constitution does not demand the filibuster, so any procedural shenanigans that go around it seem Constitutionally kosher to me.
As to how they comport with Congressional rules...no idea.]
March 18, 2010, 3:36 pmPaul of Alexandria says:
And more than that, this bill would represent a fundamental change away from the principles upon which this nation was founded towards a European-style socialist economy. This whole process has been full of lies and deceits from the very beginning, at the start of the 20th century.
March 18, 2010, 4:00 pmSarcastro says:
Illuminati?
March 18, 2010, 4:02 pmFirst Chair says:
Mr. Dooley:
“No matter whether the country follows the flag or not, the Supreme Court follows the election returns.”
And, all the more on the paramount issue of this Congressional Session, in this election year.
March 18, 2010, 4:19 pmOrenWithAnE says:
The difference is that a majority can re-caucus at any time to remove those leaders. Heck, the Blue Dog Dems could defect (en masse) and elect Boehner as the new Speaker.
So long as Pelosi has the gavel, she is acting with the implicit approval (by virtue of their non-removal of her) of the majority.
March 18, 2010, 4:23 pmOrenWithAnE says:
And here I was thinking that the US was not founded on a particular market ideology but as a republican nation whose people retain the sovereign right to make their own policy.
What a surprise it will be to Jefferson when you (resurrect him and) explain that The People are not, in fact, sovereign but beholden to some fundamental principles that they are powerless to change.
March 18, 2010, 4:26 pmPaul of Alexandria says:
Ah, but is this change in fact the will of the people? Are the majority of the people even aware of what is being done behind their backs? Has this change been properly debated and considered or is it being foisted upon the American people in spite of their opinions and long-held beliefs? I observe that it is not. That a great deal of effort has been spent by the Progressive left in hiding their true agenda, in cloaking it under a mask of representative democracy, and that when the American People find out the consequences of what has been done they will be very, very angry.
Let’s be very clear here: the issue isn’t just the “shenanigans” going on in Congress, it is the fact that a few people are trying to change the fundamental nature of this country for our “greater good,” in spite of the wishes and opinions of the majority, and towards the end of a tyranny in which they rule.
March 18, 2010, 4:41 pmPaul of Alexandria says:
March 18, 2010, 4:43 pmSarcastro says:
Such a useful argument! America should never change! Slavery, Jim-Crow, Women voting, Medicare, all fundamentally changing America, AND unpopular with the people when they were passed!!
It’s like I don’t even know where I live anymore!
March 18, 2010, 4:44 pmPaul of Alexandria says:
Now you’re talking like a troll, and a fool.
Have you carefully considered all of the implications and consequences of this change? Not all change is good, not all changes are to be desired. (I would, BTW, argue that Medicare – and Medicaid, and Social Security – were not good ideas, since by their very design they are financially nonviable).
I look around at other nations that have traveled this path and I see only misery and disaster.
A friend sent me this e-mail, which illustrates the point:
(credit: Brian Depper)
Again: why do you want to bring changes to this country that demonstrably will lower our standards of living, reduce our economic well being, and eliminate almost everything that makes this country a desirable place in which to live?
March 18, 2010, 5:10 pmSarcastro says:
Yes, the argument for health care is that all change is good! Way to engage in the debate! (The key to good debating is always keeping things as general as possible, like “is change good?” or “What is America?”
To heck with people who compare Sweden and Norway’s health care systems to the US, Argentina is the closest comparison, what with their recovering from 25 years of stagflation!
And then, as icing on the cake, you assume the conclusion that health care reform will “demonstrably will lower our standards of living, reduce our economic well being, and eliminate almost everything that makes this country a desirable place in which to live!”
Wow, why would you every want to beat your wife, Paul of Alexandria?
March 18, 2010, 5:24 pmOrenWithAnE says:
And I will not at all dispute if they elect a future Congress that will repeal the bill.
I will dispute your assertion that this Congress does not have the mandate to pass laws as much as the last and the next.
March 18, 2010, 5:25 pmjrose says:
Can’t do that – the Constitution requires the votes by Named Persons be recorded.
March 18, 2010, 5:34 pmWhitehall says:
A house of Congress can vote to pass a bill by acclimation IF there are no objections. That way, every member is on record for voting for the bill. Don’t know about the members who are not present at the time – maybe they are recorded as “not present.”
March 18, 2010, 5:38 pmBrian G. says:
Typical right wingers. Can’t respond to me argument, so you have to act like I am just being sarcastic.
Clarence Thomas should recuse himself because of his wife, and the Chief Justice should be not allowed to sit on any case involving a law Obama signed because from his whiny and childish comments about how mean Obama was to them at the State of the Union it is obvious he will be biased against Obama. Plus, since Obama was one of the few Senators that saw right through Roberts and smartly voted against an obviously unqualified judge, Roberts is looking for any petty reasons to stick to Obama. Of course, what did Bush care, since his whole administration was filled with incompetent boobs that couldn’t run a cattle ranch.
March 18, 2010, 5:44 pmjeffry house says:
If the Courts can inquire as to the procedure used by Congress to pass a bill, perhaps they might strike down the filibuster rules and the requirement that 60 votes be obtained to pass legislation?
Then the Health Bill would require only 51 votes.
March 18, 2010, 6:12 pmELC says:
March 18, 2010, 7:24 pmPubliusFL says:
If you change the Constitution enough, sure.
March 18, 2010, 8:23 pmSarcastro says:
[Would you care to engage my point that a majority of both houses will be for the language in the passed bill, thus satisfying the Constitution?]
March 18, 2010, 8:33 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by nikolaz02: Jonathan Adler looks at “Deem & Pass” over at the Volokh Conspiracy. http://bit.ly/b1tmiv...
March 18, 2010, 8:34 pmperplexed says:
I have two issues to raise. First, given the justiciability issue that arises once a bill is enrolled and signed, would it be possible for a member of Congress to obtain a writ of mandamus after the Slaughter Rule is adopted which orders that the bill not be enrolled and signed until a hearing is held on its constitutionality? It seems to me that this would address the Supreme Court’s concern about nullifying an already enacted law many years down the road because someone found a discrepancy between the text of the bills voted by the House and Senate, respectively.
Second, the latest news I read (from an AP article) was that the “deem and pass” procedure was being attached to the motion to take up the reconciliation bill and not the bill itself, meaning that the House would not be passing two legislative items with a single vote. The Senate bill would have been deemed to pass, and then the House would separately vote on reconciliation. Nonetheless, I still think this is unconstitutional because there was no vote on the text of the Senate bill. What happens, for example, if a Representative didn’t get the memo that his or her procedural vote to take up one bill would be “deemed” by the leadership as a vote for an actual legislative item? I don’t think that the requirement that legislation be passed by a vote of yeas and nays can be squared with a procedure that passes a bill by the operation of a rule, rather than a direct vote on the bill itself.
March 18, 2010, 8:52 pmChristopher Cooke says:
Whitehall: I agree with you that the remedy here, if the American people do not like the healthcare bill and Congress enacts it, is for the people to tell them during the next elections by voting. I disagree with those who think that “Deem and Pass” is something that the courts should delve into, for the reasons that underly the political question doctrine and the enrolled bill doctrine (a variation of the former).
March 18, 2010, 8:52 pmrpt says:
Where were you from 1994-2006?
March 18, 2010, 10:45 pmrpt says:
The Republicans are winning 41-59. The new math in action.
March 18, 2010, 10:47 pmrpt says:
And where were you during the Gingrich-Hastert deem and pass several hundred times era?
March 18, 2010, 10:52 pmMike Heilman says:
Health Care grab too broad it’s like Food Stamps trying to take over food manufacturers it’s INSANE to grab for everything …. just INSANE …. knock knock anybody home in Obama’s world
March 18, 2010, 11:22 pmPaul of Alexandria says:
First of all, two wrongs don’t make a right; most left-wingers seem to think that Conservative = Republican. Secondly, I believe that a close look at what actually happened there indicates that those cases bear little resemblance to the current one.
March 18, 2010, 11:47 pmPaul of Alexandria says:
Right here, why? Nothing unconstitutional going on so far as I can tell, except for the actions of the Democrats.
March 18, 2010, 11:48 pmPaul of Alexandria says:
Please tell me what indication you have that we’d end up with a system like Norway’s? The indications are that we’d get one more like England’s. And in any case, why should I do your research for you. Go, study the various systems, and come back and convince me why I should want such a thing.
I Don’t Want to Be a Norwegian
Like all socialized medical systems, Norway’s system has two problems: care is rationed, and lines are long. Health Care Around the World: Norway. One pertinent item: “Norwegians can opt out of the the government system and pay out-of-pocket. Many pay out-of-pocket and travel to a foreign country for medical care when waiting lists are long.” Guess where they usually travel to?
Once more: I’m not saying that our current system of health-care coverage is perfect, far from it. However, its problems can be fixed without nationalizing it.
March 18, 2010, 11:58 pmWhitehall says:
Mr. Cooke,
While the ultimate power is in the hands of the electorate, I’m not against the SCOTUS enforcing the letter of the Constitution against abuse by the legislative branch. In fact, I consider it their responsibility. If that fails, prior to the elections, our next remedy, which we may exercise in any case, is by voting.
Of course, we’ll only cover a third of the senators – this time.
Mr. rpt,
If you read carefully my original posting, I was clear in using the wording “by their own rules” several times. The election trend line is, I think you will agree, against the government takeover of health care.
************************************************************
I will add that BOTH sides are talking around a key issue – excessive and unaffordable entitlements for health care ALREADY.
March 19, 2010, 12:00 amPaul of Alexandria says:
BTW, Talk show host and former Chief of Staff to the Attorney General of the United States Mark Levin, who is a Constitutional lawyer, and the Landmark Legal Foundation are will bring a federal lawsuit in the District of Columbia to challenge the constitutionality of the House’s use of the ‘Slaughter Rule’ to advance the Senate bill. So I would say that there is something to be discussed here.
March 19, 2010, 12:03 amrpt says:
Thank you for the clearest answer so far. It’s not what is done but who is doing it that leads to the result. Two wrongs don’t make a right but if it’s being done by Democrats it’s always wrong.
March 19, 2010, 12:57 amrpt says:
Whitehall:
Stick to reality. There is no “government takeover of health care” here. The insurance companies remain in control with some improvements.
The “election trend” is still D 59 and R 41 in the Senate, with a smaller majority in the house. There is a lot of political reality beyond the talking points.
March 19, 2010, 1:00 amrpt says:
Fixed by whom? The R’s have never and will never do anything meaningful. We have about a 60 year track record of nothing. When the D’s try anything we hear the end of the world chorus, as now.
March 19, 2010, 1:03 amPaul of Alexandria says:
You’re really hung up on hating Republicans, aren’t you?
March 19, 2010, 9:32 amWhitehall says:
rpt;
“There is no “government takeover of health care” here.”
Denial.
It is far too much for most Americans. LESS regulation, not more, is the best course.
March 19, 2010, 11:52 am