Is a constitutional challenge to the use of “deem and pass” to enact health care reform precluded by the Supreme Court’s 1892 decision in Marshall Field & Co. v. Clark? In that decision, the Supreme Court held that federal courts must accept the certification of the presiding officers of the House and Senate that a bill passed both houses as “conclusive evidence.” In short, once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement. The judiciary, the Court appeared to hold, should not delve into the internal proceedings of the legislative chambers to the validity of their claims.
This holding would seem to indicate that federal courts could not evaluate the constitutionality of “deem and pass.” But is that so? Professor Michael McConnell points me to United States v. Munoz-Flores (1990), specifically footnote 4, which reads:
Justice SCALIA apparently would revisit Powell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Field v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence” the Court would consider in determining whether a bill had actually passed Congress. Id. at 670. Appellants had argued that the constitutional clause providing that “each house shall keep a journal of its proceedings” implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. 1, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id. at 143 U. S. 670–671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments” demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id. at 143 U. S. 672. Where, as here, a constitutional provision is implicated, Field does not apply.
This language would seem to provide a basis for distinguishing Field v. Clark on the grounds that “deem and pass” violates specific provisions of Article I, section 7 requiring that legislation pass both Houses of Congress, and Article I, Section 5’s requirement that the vote on each piece of legislation be recorded.
Does this offer hope to those who wish to challenge passage of the health care bill via the “Slaughter Solution”? It might, but the D.C. Circuit was not persuaded when Public Citizen filed a challenge to the passage of legislation on the grounds that the text of a bill certified by both Houses was not, in fact, the text that each had passed. A unanimous panel of that court dismissed Public Citizen’s appeal to “the concluding sentence of an oblique footnote” to overturn or cabin the Field holding. The court went on:
Public Citizen’s attempt to square the Munoz-Flores footnote with Court precedent fails. In assessing appellant’s claim, it is important to recall that Munoz-Flores did not in any way involve the question raised in Marshall Field, i.e., whether an authenticated enrolled bill had passed Congress. The question instead was whether a provision that unquestionably had passed Congress constituted a bill for raising revenue. It is not plausible to think that the Court meant to overrule the enrolled bill rule in the last two sentences of an obscure footnote in a case that did not involve an application of the rule. Under Public Citizen’s interpretation, the Munoz-Flores Court overruled the time-tested Marshall Field decision sub silento in a footnote, and then three years later inadvertently referenced the purportedly defunct rule in U.S. National Bank of Oregon. See 508 U.S. at 455 n.7. The argument collapses under its own weight.
The last two sentences of the cited footnote in Munoz-Flores defy easy comprehension. Nonetheless, the text of the footnote is clear on one point: the Court did not mean to overturn or modify the enrolled bill rule of Marshall Field. The Court’s footnote in Munoz-Flores clearly states that “[t]he respect due to coequal and independent departments demands that the courts accept as passed all bills authenticated in the manner provided by Congress.” 495 U.S. at 392 n.4 (internal quotation marks omitted). The Court then says: “Where . . . a constitutional provision is implicated, Field does not apply.” Id. In other words, Marshall Field does apply in a case of the sort at hand, where the court must “accept as passed [the bill]
authenticated in the manner provided by Congress.” Id. There is nothing in the footnote to indicate that the Court meant to distinguish between challenges arising under the Journal Clause as opposed to challenges arising under the Origination Clause and Bicameralism Clause, as Public Citizen suggests. Indeed, the footnote appears unambiguous in reaffirming that there can be no Bicameralism Clause challenge when a bill has been authenticated in the manner provided by Congress. The text of the footnote may be less than carefully crafted, but it does not admit of the strained construction offered by appellant.
On this basis I am fairly confident that a challenge to “deem and pass” would face rough sledding before the D.C. Circuit, but the Supreme Court could be another matter.
One final point. Members of Congress take an oath to uphold the Constitution and thus have an independent obligation to assure themselves that they are acting constitutionally. Just because a court may find a specific constitutional challenge non-justiciable does not mean that the underlying conduct was constitutional. So even if Field v. Clark would foreclose a constitutional challenge, members of the House should think long and hard about the constitutionality of the steps they take to enact desired legislation. Whether they will, is another matter entirely.
Andrew says:
Professor Adler, I think one thing that perhaps is unclear in your post is that the “Slaughter Rule” is not synonymous with “deem and pass.” The Slaughter Rule has much more to it than simply saying it means “deem and pass.”
The House of Representatives has sometimes used “deem and pass” to vote for a single piece of legislation that is then approved by the Senate and signed by the President.
But here, the Slaughter Rule would use “deem and pass” so that the House simultaneously approves two pieces of legislation, one of which would then go to the President and one of which would go to the Senate. Thus, according to the Slaughter Rule, the President would sign into law only part of the legislation that the House votes for. That did not happen with previous uses of “deem and pass.” Andrew(Quote)
adam in california says:
If the price they pay is high enough then perhaps the practice won’t be repeated. adam in california(Quote)
ruuffles says:
Could you elaborate on that? The DC Cir panel was rather unique: Edwards, Garland, and Tatel. Couldn’t a more conservative panel (or en banc) reach a different result?
The footnote is a rebuttal to Scalia. Where are the five votes going to come from? Only Kennedy from the majority that wrote the footnote is still there (though Brennan, Marshall, and Rehnquist, but not Stevens and O’Connor, were with Kennedy). ruuffles(Quote)
OrenWithAnE says:
What price do you think will be exacted by voters if they go to the polls in Nov with no legislative accomplishments at all? OrenWithAnE(Quote)
Repeal 16-17 says:
Do INS v. Chadha (1983) and Clinton v. City of New York (1998) suggest that the Justices would be more willing to rule on the merits regarding a challenge to the Slaughter Rule? Repeal 16–17(Quote)
jcm says:
Hope and change, the road to third world so called democracy. They can be serious about that, even in Cuba the fake votes are counted jcm(Quote)
adam in california says:
The comment was in reply to “members of the House should think long and hard about the constitutionality of the steps they take to enact desired legislation”.
Ummm — I think the voters would prefer they honor their oaths to uphold the Constitution rather than undermine it, don’t you?
Or are you presenting a false binary to everyone? On the “it’s better to do something than nothing” aphorism, I disagree. Especially when it comes to lawmaking. adam in california(Quote)
TheReasonedMind says:
Chadha and Clinton are both based on the expression of power by one governmental branch resulting in the encroachment on the rights and responsibilities of a coordinate branch.
The Slaughter Rule is a legislative process wholly created, administered, and maintained within a distinct branch under Art 1, Sec 5, Para 2.
Field v Clark and McCulloch v Maryland establish an effective black box around the legislative process such that anything created, administered, and maintained within a single body would be considered Constitutional until such time as it breaches the Presentment Clause. TheReasonedMind(Quote)
adam in california says:
Is there a new theory here, or is it “the text isn’t the same” which might lead to a “win” but won’t lead to a remedy. adam in california(Quote)
Christopher Cooke says:
Jonathan:
I read that passage in the DC Circuit case and share your conclusion that a challenge would go nowhere in the DC Circuit. I also agree with the reasoning of the DC Circuit in rejecting Public Citizen’s argument based on Footnote 4 of Munoz-Flores.
I am curious, does Judge McConnell think such reasoning is unsound or does he simply think that the Supreme Court may decide it differently because it is the Supreme Court? I have not read all of the precedent underlying the Marshall Field case, but a court really would be intruding into the intricacies of how legislation is enacted if it were to say that a statute was invalid under the Bicameralism Clause simply because the House had one vote that covered two bills instead of two votes on two bills. Who cares? Is not the purpose of this portion of the Constitution to (1) make sure that the bill passed by one house is the same when it is passed by the other (a mechanical, error-prevention purpose) and (2) hold elected legislative representatives politically accountable for their votes, so that the people know what they have voted on? If so, how would one vote on two bills –which is the essence of the “Deem and Pass” Slaughter proposal– violate either purpose? I just don’t get this controversy. I do agree that the House shouldn’t resort to gimmicks but I don’t see how it either obscures the significance of any vote or creates a risk of error. Christopher Cooke(Quote)
Michael says:
This is my question as well. The challenge will be that the House did not approve the Senate bill, but another bill consisting of the Senate bill plus amendments. That bill would not be the Senate bill. The question will indeed be whether the House and Senate have passed the same legislation, but the key word will not be “passed,” it will be “same.” If the “same” text was not approved by both houses, the bill will not have been validly enacted and would not be law. Michael(Quote)
Rodger Lodger says:
Apples and oranges. Field is about proving the content of a bill. Slaughter process is about process, which is explicitly regulated by the Constitution. You could push the logic to say a fight about enactment process is a fight about content, but that’s like saying if a branch of government’s process is questionable, that reduces to a fight over what it is that they did. I don’t see it....content is an evidentiary question, and Slaughter is about procedure. So if a court wants to distinguish Field, here it is...at no charge. Rodger Lodger(Quote)
Michael says:
But there probably would be a remedy if the same bill was not passed by both. Clinton v. City of New York says that in order to be validly enacted the same bill must pass both houses. If it’s not validly enacted, it’s not law. Given what Professor Adler quoted above, namely, “Where, as here, a constitutional provision is implicated, Field does not apply,” it seems that the court might indeed be willing to declare the law invalid. Michael(Quote)
yankee says:
Another way of looking at it is to ask whether the Court wants to be responsible for striking down an enormously popular program and depriving tens of millions of Americans of health care. yankee(Quote)
Michael says:
Enormously popular as long as you ignore all the polls. And none of those millions of Americans would be getting any healthcare under this bill before 2014 anyway. Michael(Quote)
David Schwartz says:
I thought it was already pretty clear that any sort of “conclusive presumption” in a legal context offended due process. David Schwartz(Quote)
Steve (CT) says:
How can you say its enormously popular & would deprive tens of millions of health care when it hasn’t been put into effect or even passed? Most portions of the bill don’t even take effect until 2014.
Rasmussen says 53% are opposed to this ‘enormously popular program (sic)’.
Edit: Beat to the punch by Michael Steve (CT)(Quote)
jrose says:
The House will have approved two bills: the Senate bill (word-for-word) and a separate reconciliation bill. jrose(Quote)
Andrew says:
There seem to be two potential procedural grounds for challenge, whether you agree with them or not:
I. The House would not have really “passed” HR3590 if they do it implicitly by voting on another entirely different bill. This would be a blanket challenge to the practice of “deem and pass” that has been used occasionally in the past to produce law.
II. Even if the House really will have passed HR3590, it would be part of a legislative package that also includes the Reconciliation Bill, and therefore the President cannot approve only part of the package. This would be a more narrowly targeted challenge, since I’m not aware that anything like it has ever happened before.
P.S. But maybe this will all soon be moot, as of Sunday, when the entire thing may be defeated. Andrew(Quote)
rpt says:
What about those no longer excluded for pre existing conditions? rpt(Quote)
rpt says:
Don’t we have the same constitution now that we did when the Gingrich and Hastert led Congresses did “deem and pass” several hundred times? Result-oriented analysis all the way. rpt(Quote)
yankee says:
It’s completely different. See the IOKIYAR Clause. yankee(Quote)
mls says:
My gut tells me that Professor Adler is right that the courts will be reluctant to set foot on this slippery slope. As a purely logical matter, however, I think this case is different than Field or Public Citizen. Its not a factual question of what was actually passed–it is a pure legal question of whether two bills can be approved in a single vote. mls(Quote)
Michael says:
Deeming and passing has been used many times before, and the result has always been a single piece of legislation that includes both the deemed language and the language actually voted on. If that’s not what they’re doing this time, then they can’t say that what they’re doing isn’t unprecedented, because it is. Further, they better make sure their rule says they are doing something other than the normal “deem and pass.” And lastly, I thought the whole point was that they would not have to say they approved the Senate bill as it is. Funny that they plan on saying that to the public while insisting in court (if it goes there) that they really did pass the exact senate bill with all the sweet deals. Talk about duplicity. They deserve to get nailed to the wall if they do that. Michael(Quote)
Andrew says:
And, if so, whether the President can sign only one of them, without the other having been approved by the Senate. Andrew(Quote)
rpt says:
Ah, I see...again. Just like reconciliation has never been done before.... rpt(Quote)
Michael says:
Well, that will depend on whether it’s really two bills, or a single bill containing both the Senate bill and the fixes. If it’s the latter, then this is unconstitutional. If the former, then it’s merely stupid.
Here’s why it’s stupid: they won’t be able to say they didn’t vote for the Senate bill, because in order for this to pass muster they must insist that they passed the exact same bill as the Senate. They will have voted for the Senate bill. The fact that some other bill passed with the same vote is irrelevant. In addition, they take more heat for doing it this way than they would if they just passed both bills separately. There is absolutely no upside to doing it this way. Either way, the Senate bill becomes law and they have to pray the Senate can agree on changes, and that at least some of the House’s changes will pass the Senate. Michael(Quote)
DangerMouse says:
“Deem and Pass” is the ultimate in lib idiocy. Why are they doing it? Because the House doesn’t want to vote on the Senate bill, as Nancy Pelosi said. So either they’re not voting on the Senate bill, or they are. The American people are not as stupid as the House libs think, and understand that a vote on the “Deem and Pass” bill is a vote on the Senate bill.
Does Nancy Pelosi seriously think that people will be fooled?
Pelosi: I didn’t vote for the Senate bill.
Voter: Yes you did, you passed it and that’s the law Obama signed!
Pelosi: No, we didn’t vote on the Senate bill. We voted on amendments to the Senate bill.
Voter: But Obama signed the Senate bill into law!
Pelosi: But we didn’t vote on it. We only voted on the amendments! You can’t hold us responsible for a bill we didn’t vote on.
Voter: How could you not vote on it? I thought Congress needed to vote on laws before the President could sign them!
Pelosi: We “deemed it passed” when we voted on the Amendment.
Voter: So when you voted on the amendment, you really also voted on the Senate bill?
Pelosi: That’s one way of looking at it.
Voter: So then the Senate bill would never have passed if you never voted on your amendment, which, by the way, has gone nowhere.
Pelosi: That’s one way of looking at it.
Voter: Well, then I hold you responsible for making the Senate bill a law.
Pelosi: You can’t do that! We didn’t vote on it.
Voter: Yes you did.
Pelosi: No, we didn’t.
Voter: So either you violated the Constitution by not voting on a law, or you in fact voted on it in just a different format.
Pelosi: (thinking about which one is worse for her politically)
Voter: *click* I just voted you out. Go to hell. DangerMouse(Quote)
MJW says:
(I made a similar comment on a prior thread, but it’s more on-topic here.)
In the Public Citizen case, the D.C. court dismissed the applicability of Munoz-Flores because the SC ruled the bill in question wasn’t revenue raising, so the Origination Clause didn’t apply. According to appeals court, “The question instead was whether a provision that unquestionably had passed Congress constituted a bill for raising revenue.”
Superficially, that seems sensible. The SC did, after all, rule on the content of the bill, as they often do, and not on the the process by which the bill was passed. But even ignoring language in the Munoz-Flores decision that clearly indicates that if the SC had determined the bill was revenue raising, they would have then decided whether it originated in the house, there’s a deeper problem.
A long established principle is that the duty of a court is limited to deciding questions that can affect the rights of the parties before it (see, for instance, Kimball v. Kimball, 174 U.S. 158 (1899)). If the SC believed they could not look into the process by which the the bill was passed, there would be no justification for deciding whether the bill was a revenue bill; for if they found it was, they would be precluded from determining if it had originated in the house. MJW(Quote)
Cap'n Rusty says:
Christopher Cooke at 8:40 asked:
“Is not the purpose of this portion of the Constitution to (1) make sure that the bill passed by one house is the same when it is passed by the other (a mechanical, error-prevention purpose) and (2) hold elected legislative representatives politically accountable for their votes, so that the people know what they have voted on? If so, how would one vote on two bills – which is the essence of the “Deem and Pass” Slaughter proposal – violate either purpose?”
I’m fond of the concept of sovereignty residing in the people, with the government acting merely as the peoples’ agent, pursuant to a written agreement. Professor McConnell cites Article 1’s requirements as “ensuring the democratic accountability of our representatives.” If they are to be our representatives, our agents, and not our rulers, we must know what they are doing on our behalf. If the citizenry cannot know how their representatives voted, then, in effect, they are not represented. The purpose of the Constitution was to jealously guard the liberties of the people against encroachment by their government, and certainly its authors were aware of the risks that two branches might connive to deprive them of those liberties.
Under the position that the Slaughter Rule contains one bill, then the Senate would have to pass that exact bill because of the bicameralism requirement. But the Senate bill would not have been “peeled off” and signed by the President, so the precondition of reconciliation would not have been met, and the bill would be subject to filibuster in the Senate.
The other position is that the Slaughter Rule contains two bills (1) the Senate Obamacare bill and (2) the Reconciliation bill. When the vote is taken, some Representatives voting for the Rule might be voting in favor of the Senate Obamacare bill despite the Reconciliation bill (and would have voted against the Reconciliation bill if the bills had been considered separately). Other Representatives voting for the Rule might be voting in favor of the Reconciliation bill despite the Senate Obamacare bill (and would have voted against the Senate Obamacare bill if the bills had been considered separately). While the total number of votes might be sufficient to pass the Rule, the citizens could never know whether either bill would have passed on its own, and the citizens would never know how their Representative would have voted if the bills had been considered separately, defeating the democratic accountability mandated by Article 1, Sections 5 and 7. Cap’n Rusty(Quote)
licrimlawyer says:
Both Marshall Field and Public Citizen seem to be saying that the courts and the public should be able to rely on the certifications by the clerks of the respective houses of Congress. In each of those cases, the plaintiffs appear to have been trying to annul an act of Congress on a mere technicality. (In Marshall Field the plaintiff was aggrieved by the tariff that was enacted; Public Citizen did not like the fact that the filing fee was raised by 100 bucks.)
What happens if a member of Congress, say Boehner or Cantor, were to file suit? Arguably, they would have standing. Would it be a justiciable issue? licrimlawyer(Quote)
MJW says:
Regarding my previous comment, I realized there’s a problem with my argument which I missed. There are two questions — is the bill a revenue bill, and can the court determine whether a bill originated in the house — and the court is free to choose which to ask first. Choosing to first ask if the bill is a revenue bill may well be the better option, since if, as in the actual case, it isn’t, there’s no need to decide the trickier issue of analyzing the bill’s passage.
I will add, though, that by the structure of the decision, the court clearly looked broadly at the power of the court to determine both if the bill was revenue raising and if it originated in the house before deciding whether the bill was in fact a revenue bill.
MJW(Quote)
Demosthenes says:
And yet another way of looking at it is to ask whether the Court wants to be responsible for certifying as constitutional an unconstitutional piece of legislation that will accelerate America’s path toward insolvency.
Alternatively, you could stop being so inflammatory. Demosthenes(Quote)
Jack G says:
I wonder how far the courts would be willing to accept the enrolled bill rule. For example, say that, after the Republicans retake both the House and Senate in 2010, they pass a bill to repeal Obamacare. Obama will naturally veto that bill. But, now let’s say that the Republicans, by majority vote, pass a rule that deems that Obama’s veto was overridden by a 2/3 vote. It doesn’t matter if Congress really did vote by 2/3 to override the veto — instead, Congress just deemed that it occurred. Just as under the Slaughter Solution, it doesn’t matter if the House really did vote to pass the Senate bill (we know that, in actuality, it didn’t), as long as the Democrats deem that it really did occur. In this case, so long as the Republicans enroll a bill overriding Obama’s veto of the bill repealing Obamacare, which enrollment states that it was passed by a 2/3 margin, would the enrolled bill rule of the Supreme Court mean that the Court wouldn’t look at the substance of whether 2/3 of the members voted to override the veto? It would seem that, under Field, the Court would stay out of it and the Obamacare would be repealed. Jack G(Quote)
Michael says:
Unless I am mistaken, that also kicks in in 2014. Or at least not for a few years, I forget exactly when the benefits start. Michael(Quote)
Michael says:
I don’t think that would work, because the 2/3 for a veto override is explicitly in the Constitution. That is not a matter of internal procedural rules. Michael(Quote)
cboldt says:
I think the “two bill solution” creates a law that fails to meet the process for passage, as stated in the constitution.
The House’s “will” toward HR 3590 is expressed in the “rule,” which conditions passage of HR 3590 as amended by the Senate bill on passage of reconciliation, as passed by the House. The House never says that it would pass the Senate bill standing alone (that is, without amendment). If HR 3590, health care as passed by the Senate, is enrolled and signed by Pelosi, the Congressional Record will not support the contention that that the bill (unamended HR 3590) represents the will of the House. Rather, the Congressional Record (H.Res. “the rule”) states that HR 3590 MUST be changed (reconciliation changes HR 3590), before it is “deemed passed,” agreeable to the House.
There are other ways to analyze the process, but basically there is no House vote to (unconditionally/unamended) pass HR 3590 as agreed by the Senate. Even though there are two bills and two votes, there is absence of agreement between the chambers. The requirement that the same thing be passed by both chambers is not met. HR 3590 will fail to satisfy ” Every Bill which shall have passed the House of Representatives and the Senate ...” predicate for presentment. HR 3590 will be fatally flawed, period.
As to the question in the OP, whether Marshal Field precludes the Court from looking at the record and finding this fact, I’m not ready to give a reasoned response. But my gut tells me the Court will punt this back to Congress, lest it (the Court) be perceived as “activist” for monkeying with Congress. cboldt(Quote)
Brett Bellmore says:
Members of the Supreme court also undertake an oath of office. Regrettably, it seems not to explicitly demand that they uphold the Constitution. Came as somewhat of a surprise to me, when I looked it up. Explains a lot, I suppose; Any chance of getting that oath changed? Brett Bellmore(Quote)
jrose says:
Under Field, it’s whatever the House and Senate say it is, and they are going to say it’s two bills. jrose(Quote)
Michael says:
Okay, then it’s just stupid. Unless you can explain the advantage of using this process rather than merely passing the Senate bill and the fixes bill with two separate votes. Because if the Slaughter rule is used as you are suggesting, I don’t see any upside to doing that instead of just passing each bill separately. And there is considerable downside, in terms of public outcry. Michael(Quote)
cboldt says:
Marshall Field precludes looking at the journals. If that precludes looking at the House resolution “rule” that purports to support the enrollment of HR 3590, then Marshall Field precludes judicial review of the evidence, which precludes deciding the case. There is no inquiry to find evidence of passage by a majority of either chamber, let alone the contents of what was passed, under the rule of Marshall Field.
This impenetrable shield is justified as necessary to avoid the morass of litigation and uncertainty about validity of law that would inevitably follow from close scrutiny of journals, that “... must have been constructed out of loose and hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly,” and a valid concern that many laws would not meet the test of journals being in perfect agreement.
In the (health care) case at hand, the reference materials necessary to find that the House and Senate do not agree on HR 3590 (as amended by the Senate), will be the House Resolution that conditions “deemed passage” of HR 3590 on actual passage of a bill that amends HR 3590. No “hasty memoranda” are involved. But if the evidence trail stops at “enrolled bill,” there is only that one paper. Unless the substance of the law on that paper is unconstitutional, the Court has said it will defer to Congress.
Article I Section 5 does not require that all “votes” be recorded, or that all indicia of passage be recorded. Certainly, that’s implied. And at a minimum, a deliberative body records the identity of the question being decided, and the outcome of the decision. And as far as I can tell, there is no violation of recording the Yeas and Nays. Even if there was, that issue stands behind the “enrollment shield.”
I’d say that Pelosi has constitutional support for refusing to enroll HR 3590, unless the Senate passes reconciliation unamended. But the defect would still remain, as well discussed on these threads, shifting power to the president to “make public law” by using the veto power to choose between mutually exclusive legislative options. cboldt(Quote)
cboldt says:
– the 2/3 for a veto override is explicitly in the Constitution. That is not a matter of internal procedural rules. –
“Procedural” requirements in the Constitution are out of reach of the Court, under Marshall Field. If the Court looks no deeper than the formal attestation embodied in the enrolled bill, then it has no evidence to use to find fewer than 2/3rds being in accord with the bill. If the paper says “it passed with 2/3rds,” and that paper is signed by the Speaker and President pro tempore, the rule in Marshall Field is that the Court will not review “the journal,” which is where the recorded votes are kept.
– I don’t see any upside to [deeming HR 3590 passed] instead of just passing each bill separately. –
The House does not agree to pass HR 3590 as amended by the Senate. It conditions its agreement with having changes made to HR 3590. But if the House amends HR 3590, then that bill won’t get past the minority veto of filibuster, as practiced by the Senate. cboldt(Quote)
rpt says:
I believe it starts as soon as the bill is signed. That is a good thing. rpt(Quote)
Michael says:
But the House has to pass the same bill he Senate passed. They will also pass the fixes with the same vote, but only the Senate bill goes to Obama’s desk. The fixes go to the Senate, which may pass all, some, or none of them. So they are approving the Senate bill as is, and also passing a bill that will be the House analogue of the Senate reconciliation bill. Just as if the House passed the two billa separately. Am I wrong about that? If the House does not pass exactly the same bill the Senate passed, then the bicameralism requirement is not met. Since budget reconciliaion can only change existing law, it is not possible unless the House passes the Senate bill exactly as it is. Passing the fixes with the same vote is purely cosmetic, is it not? Michael(Quote)
cubanbob says:
A rather cogent argument indeed. Perhaps the most incisive argument against this bill with respects to the process involved in its attempted method of passage I have read. In the end it has to be seen as a revenue bill simply because of the revenue components of the bill. And logically if the House “deems and passes” a Senate revenue bill in that order, Senate first, House second, it could not have originated in the House as required by the Constitution. Hats off to you. cubanbob(Quote)
cboldt says:
– What happens if a member of Congress, say Boehner or Cantor, were to file suit? Arguably, they would have standing. Would it be a justiciable issue? –
The plaintiffs in Marshall Field and Public Citizen had standing. The Court said that it wouldn’t look any deeper than enrollment, because that opens up a can of worms. In both Marshall Field and in Public Citizen, the public law had a constitutional defect, in that the enrolled language did not match what passed one or both chambers, according to the Congressional Record and formal papers that lie behind and support the Congressional Record.
I wonder if a majority of Congress understands that “we agree to pass HR 3590 on the condition that it is changed” is not the same as “we agree to HR 3590 without any changes.” That “deemed passed, -IF-” is not the same as “deemed passed.” cboldt(Quote)
Stephen Lathrop says:
The filibuster is behind all this, right? The House doesn’t want to send an amended bill to the Senate, because then the Senate would filibuster? So instead the House sends along their little package, saying in effect, pass this separate amendments bill, and the House will consider the Senate original bill passed as well, but amended by both houses.
If that is a fair summary of the issue, then if the filibuster didn’t exist, there wouldn’t be a problem. The amended bill would pass the Senate on a simple majority. That must be the assumption, because lacking a simple majority in the Senate, the Democrats couldn’t pass the amendments in their package. So the twin assumptions behind this situation seem to be that (1) the Democrats have a Senate majority to pass an amended bill, and (2) the filibuster would prevent them from doing so.
If this still makes sense, then I have this question: where is the Constitutional issue in avoiding the filibuster? There isn’t one, right? The filibuster has no Constitutional status at all.
Given that, it seems to me that most of the arguments offered against the Democrats’ procedures are disingenuous. Basically, the objections seem to come down to a hope that the Supreme Court will get the case, ignore what lies behind it, and decide on a partisan basis to damage the Obama administration. Probably opponents also hope that even if a case doesn’t go to the Supreme Court, maximum political damage can be done to Democrats by offering all these tortured arguments that no one can follow.
I want the bill to fail. I object to the mandates, and I think it will be a fiscal nightmare. I also would be fine with Medicare for everyone, paid for out of general revenue. So I’m not with the Republicans in my objections. But I have never been a Democrat, either.
Given the present situation, my preference would be that if the Democrats are so intent on passing their crazy bill, they should clean up the public relations problem by ditching the filibuster and passing an amended bill by simple majority in the Senate. There’s no reason they shouldn’t do it, because the Republicans are going to end the filibuster themselves the instant the Democrats start using it the way the Republicans have done. Stephen Lathrop(Quote)
cboldt says:
– So they are approving the Senate bill as is, and also passing a bill that will be the House analogue of the Senate reconciliation bill. –
They aren’t approving the senate bill “as is” if they say “We approve the senate bill IF (and only if) the senate bill is changed by this here reconciliation package.”
– If the House does not pass exactly the same bill the Senate passed, then the bicameralism requirement is not met –
So what? If the Speaker and President pro tempore enroll the senate bill, they are swearing that the House and Senate agree to the Senate bill “as is.” Period. At that point, there is –NO– conditional attached, and the Court will not see any conditional because the Court looks no further than the enrolled bill. cboldt(Quote)
Harvey says:
The Senate bill imposes taxes, i.e., raises revenue, but all revenue bills must originate in the House. Why is this not being discussed? Harvey(Quote)
cboldt says:
– The filibuster is behind all this, right? –
I think so. While it’s open to speculation that the Senate would agree to HR 3590 being amended along the lines of the reconciliation package, if both chamber worked on “majority rule,” and the Senate did not abuse its privilege of unlimited debate, some sort of health care bill would emerge as a single bill.
– where is the Constitutional issue in avoiding the filibuster? There isn’t one, right? The filibuster has no Constitutional status at all. –
I agree with that, too. If both chambers pass the same language on a majority basis, it’s a valid statement of the will of Congress.
I also think that if both chambers pass both interrelated bills, and both are signed into public law, that this turns into a “no harm, no foul” event. cboldt(Quote)
cboldt says:
– The Senate bill imposes taxes, i.e., raises revenue, but all revenue bills must originate in the House. Why is this not being discussed? –
It has been. The bill that is casually referred to as “Senate Bill” is “HR 3590,” a House-originated bill. The constitution permits the Senate to amend revenue bills. cboldt(Quote)
Guest says:
Not to say I told you so, but I did note very early in the original thread about this issue that Field v. Clark was the most relevant case. Guest(Quote)
Joe says:
“mandate”
There really is no mandate as such. If you don’t have insurance, a tax is not waived. The tax or insurance requirement is in place to protect the system as a whole, since even if you don’t have insurance, you can eventually get it (even with pre-existing conditions), including if you suddenly get ill or hurt.
Likewise, for the rest of the people out there with insurance, it helps secure the system. I’m really really unsure why this is a problem. Or, why the second option is not noted. You ARE NOT FORCED TO BUY PRIVATE INSURANCE. In fact, the tax is cheaper than insurance for many people, and might serve as a means to drive down the prices. And, collection of the tax is hindered making it even less burdensome.
This underlines the problems with focusing on stuff like this. There is a lot of stuff in the bill that deserves discussion, and we focus on a few b.s. things. This “deem and pass” business isn’t really serious, is it? These posts — especially since they don’t seem to accept the argument of a few that somehow this time the practice is different — basically ignore that this process was repeatedly done before. Norm Ornstein (no fan of it) noted this point elsewhere. I guess all that other legislation is a problem too. Why not list them each time to underline the point, since obviously it is not just about this, right?
It also makes some political sense. The message is that the House is not just passing the Senate bill. It is passing it (because of the Republican filibuster, doing things a perfectly normal way is blocked, which also can and should be emphasized) in expectation of the reconciliation package being passed too. This is a reasonable thing to do and the ability to underline why they have to do it this way can be politically useful too. Joe(Quote)
SCOTUSblog » Friday round-up says:
Mick says:
Right, so the Congress can decide to make up their own rules contrary to the USC, and just because they say that’s the way it is, then the Courts can’t overturn? I don’t think so. I little case called Marbury v. Madison from 207 years ago would say that ANY law that is violation of the USC is NULL and VOID. Mick(Quote)
Sarcastro says:
No no no, Mick!
Marbury was a huge mistake, and has placed these unelected black robed tyrants above the other two branches when it comes to Constitutional interpretation! What part of Co-Equal did that old power-monger (and proto-New Dealer) Marshal not understand?
Least dangerous branch, eh? Being placed in the ghetto of the last of the first three Articles of the US Constitution didn’t keep the judiciary humble, it made them hunger for power and liberal media adoration!
Nope, if anyone is to prevent this obvious breaking of the Constitution by folks we disagree with, it should be our Founding Fathers. Or, lacking that, folks dressed up like them. Sarcastro(Quote)
Wordsmith says:
If the House can approve two bills with one vote, could it also “deem” each line item in the federal budget to be a different bill? Then the President could decide which line item bills to sign, and which to veto (circumventing Clinton v. New York).
I think political accountability (per McConnell and Balkin) requires a separate vote by each chamber on each bill presented to the President. The desire to avoid political accountability is the motivating reason for using “deem and pass.” Wordsmith(Quote)
Adam Sullivan says:
IMO — yes.
The court’s reticence to mingle in rule interpretation because a 3rd party didn’t like the outcome and sees a technicality is understandable. But if a member of Congress is denied an explicit constitutional right because the majority created a rule that strips him of it? If the facts paint that picture, I think the court (although probably still reticent) is compelled to act.
If not, why have key provisions in the Article 1? Why, for instance, allow the minority consisting of 1/5th present force a vote to be recorded? If the rule making power of the majority is absolute, couldn’t the majority simply make a rule “deeming” any such objection will result in the recording of the objectors as “nays” and all others as “yeas” in the interest of speed? That rule would allow the majority to escape the intent of the founders in creating that clause — the intention of accountability.
Majority rule with protection of minority rights — that is how our system is structured to work. If all matters relating to rules, procedure, vote taking and process within the Congress are to be not judiciable then the only operable clause in Article 1 is that Congress gets to make its own rules. All else could be “deemed” complied with by the majority, and the minority would be stripped of all rights. Adam Sullivan(Quote)
jrose says:
Balkin said, “[t]he House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed.”
I’m persuaded.
Using Balkin’s reasoning, that is permitted only if the authorizing rule states the exact language of each of the resulting separate bills. jrose(Quote)
Mark Buehner says:
Aren’t these the exact ‘free riders’ Obama argued are killing the system by waiting until they get sick and showing up at the emergency room? are you really suggesting that incentivizing healthy people not to be in the insurance pool while, while guaranteeing they can get insurance when they get sick at no penalty will bring prices DOWN?
Furthermore, the idea that the government sicking the IRS on me for not buying a product I may not want isn’t a mandate just destroys the meaning of the word. BTW what happens if I refuse to pay the tax and avoid being garnished? That’s right, I go to jail. Not a mandate? Mark Buehner(Quote)
cboldt says:
Balkin says:
That is effectively “passing the Senate bill,” unconditionally. And the House is neither prepared nor setting up to do that. The “Slaughter Rule” does not satisfy the Balkin test.
When the House consents to accept the text of the Senate bill, it can’t be saying “Yes, if ...” That is not consenting to the language. cboldt(Quote)
Mark Buehner says:
Cboldt– I’m still arguing that one of the following must be true:
1.This creates 2 distinct bills, one of which will pass and ultimately proceed to the president, the other which will go to the senate. If the senate passes reconciliation, that bill will go to the president, apparently instead. This would be the typical way a deem-pass bill works on budget matters as i understand it. It typically is used to let a bill get passed that still needs tweaks, but the tweaks are deemed certain and always pass quickly. In this case I think there is a big problem that the reconciliation may well not pass at all, in which case you still have the original senate bill that would constitutionally have to be sent to the president.
2. This is 1 bill, and it is a revision of the Senate bill. If that is the case, I’m interested to see how the senate can manage to create identical language when the combined bill is contradictory. Wouldn’t the Senate bill have to include language requiring the Senate to pass the revisions? Odd, to say the least.
The other option is that this is a conditional bill, which seems rather unprecedented to me. I think there could be serious pragmatic questions about allowing a bill to be passed with conditions. Could a bill be passed conditional on which presidential contender wins? etc Mark Buehner(Quote)
jrose says:
Close. There are two bills. After the House votes on the reconciliation bill, the original bill passed by the Senate goes to the President immediately for his signature. Only then will the Senate consider the reconciliation bill. If they pass it unchanged from its version in the House, it will go to the President for his singature.
The reconciliation bill is not conditional. jrose(Quote)
Mark Buehner says:
Thats nominally my take as well but cboldt has rightly pointed out that there is an example in the budget process with deem and pass where this doesn’t happen. The bill is deemed passed and then revised, voted on in the senate, and the final bill goes to the president but not the original. My point is that (i think) in every case the revisions happen very quickly so you can argue the final bill replaces the original bill as the will of the congress. But if there IS no revision, I think the original bill MUST be forwarded to the president. Mark Buehner(Quote)
cboldt says:
– 1.This creates 2 distinct bills, one of which will pass and ultimately proceed to the president, the other which will go to the senate. If the senate passes reconciliation, that bill will go to the president, apparently instead. –
Not instead, in addition. More on that below, but “in addition” doesn’t create mutually conflicting public law. Reconciliation modifies the Senate bill, it does not incorporate it by reference.
– I think there is a big problem that the reconciliation may well not pass at all, in which case you still have the original senate bill that would constitutionally have to be sent to the president. –
Would it? Does it represent what the House has agreed to? On its face, following the orders of the Slaughter Rule, you are correct. Senate bill is “deemed passed” as long as the House (and only the House) passes reconciliation. The condition for “deemed passing” the Senate bill is met, on its face; but has the House agreed to let the Senate bill become public law, even if reconciliation fails to obtain Senate passage?
– 2. This is 1 bill, and it is a revision of the Senate bill. If that is the case, I’m interested to see how the senate can manage to create identical language when the combined bill is contradictory. –
If it was a “combined bill” it wouldn’t be contradictory after combination, any more than a bill combined with an amendment ends up contradictory with itself. The bill or law is just changed by the amendment, change, or repeal.
But, for sure it’s not one bill. HR 3590 is slated to become “deemed passed” (unamended), and HR 4872 is the vehicle carrying reconciliation, which may or may not be passed. If HR 4872 becomes public law, it changes some parts of previously passed HR 3590. If HR 4872 does not become public law, HR 3590 is still public law. cboldt(Quote)
Mark Buehner says:
Ah, that’s what I thought. So there is no conditional nature to the vote. HR3590 goes to the president regardless, right? Mark Buehner(Quote)
Adam Sullivan says:
But this presents a problem.
The problem of accountability. If bills (the most significant, discreet products of the Congress) are to be produced without ever having been considered as discreet questions then the framers’ mechanisms for accountability are thwarted, being -
1) the guaranteed right of 1/5th present to have a recorded vote on any question, and
2) the right of the people to review that same record in order to hold their representative(s) accountable
These are not quaint mechanisms that can be easily discarded by clever wordsmiths — we have a fundamental breakdown in checks and balances when the president can be presented bills that were never subject to being recorded as a distinct, discreet vote.
The speaker, majority leader and the rules committee chair are all on record stating explicitly that the use of this rule as crafted and in this case is to avoid accountability.
If two bills can be made by a rule, why not 50? Were that to become common practice, exactly how could you hold your representative responsible on a particular bill — the defense will simply be “it was an all or nothing vote” and the representative can plead sympathy for both opponents and supporters of any bill in his constituency. At that point, there is no need for a congressional record. Adam Sullivan(Quote)
Adam Sullivan says:
Look more closely — the Senate took an unrelated revenue bill from the house and amended it with their health care package. Standard practice. Only way to avoid it is for the house to never send over a revenue bill. Adam Sullivan(Quote)
Christopher Cooke says:
“The speaker, majority leader and the rules committee chair are all on record stating explicitly that the use of this rule as crafted and in this case is to avoid accountability.”
Really? I would be interested in seeing where any of them said what you attribute to them. Regardless, I think the only interesting issue here–again, purely academic–is whether the President signs one or two bills if the reconciliation bill passes and, as a subsidiary point, if he signs the Senate bill first before the reconciliation bill passes. If he does both, signs the Senate bill, then signs a reconciliation bill, I for one do not see how the bicameralism clause is violated. Christopher Cooke(Quote)
jrose says:
Correct, but that is because what is deemed to have passed is an amendment to the original. The end result is one amended bill passed to the Senate.
In contrast in this case, there can be no amended bill because that requires 60 votes in the Senate. Instead, the end result is two bills, the second requiring only 51 votes in the Senate. jrose(Quote)
cboldt says:
– So there is no conditional nature to the vote. HR3590 goes to the president regardless, right? –
It depends on how one looks at it. The House Resolution that “deems passed” HR 3590, is conditional on the House (and only the House) passing the separate reconciliation bill. At the point the House passes reconciliation, there is a conundrum.
If you find that the will of the House is to agreed to HR 3590 (unamended) by “deeming” it passed, then off it goes to be enrolled and signed into public law. But if you interpret the will of the House as not agreeing to HR 3590 unless reconciliation is made into public law, then HR 3590 should not be enrolled or presented to the president.
Assuming reconciliation passes the House, which one of those two options represents the will of the House as to HR 3590? cboldt(Quote)
Adam Sullivan says:
Yes.
Yet, in both cases, the bills were never subject to a discreet vote. So the minority is denied its Article 1 right to a recorded vote on “any question.” Certainly they can demand a recorded vote on the rule, but the president will not be presented with the rule, nor will the people have life, liberty or property affected by the rule. The president will get two bills, each of which will affect directly the life, liberty and property of every citizen (and resident), neither of which the minority was allowed to ever demand a recorded vote on.
How are we supposed to have accountability with this? In terms of checks and balances, isn’t the voter the ultimate arbiter of checks and balances on House members? And don’t voters rely on the minority to ensure important votes get recorded? Adam Sullivan(Quote)
Mark Buehner says:
Ironic, considering this maneuver was designed specifically to obfuscate that point. Mark Buehner(Quote)
cboldt says:
– If he does both, signs the Senate bill, then signs a reconciliation bill, I for one do not see how the bicameralism clause is violated. –
It’s a “no harm, no foul” thing. If the pitched ball hits the dirt ahead of the batter, then passes through the strike zone, it still went through the strike zone. All the bicameralism clause does, on its own, is require that public law be agreed to by both chambers.
What would violate the bicameralism clause in ultimate execution is HR 3590 being public law, without reconciliation. That results in public law that is contrary to the House vote, “HR 3590 IF reconciliation.” cboldt(Quote)
Adam Sullivan says:
Good point. Is not reconciliation only applicable to “existing law”? So I would think that HR3590 must be signed into law prior to reconciliation taking place. Now if that is simply a matter of the president being certain to sign one before the other, that is one thing. But could one not interpret “existing law” needing to be in place prior to passage of a reconciliation bill within either chamber? Adam Sullivan(Quote)
cboldt says:
– Ironic, considering this maneuver was designed specifically to obfuscate that point. –
I think the House’s will is fairly clear. It says it agrees to HR 3590 if and only if reconciliation passes too. The usual way to accomplish this is to amend HR 3590, and toss it back to the Senate. This resolves ambiguity as to intent.
And yeah, it’s fairly obvious that the last thing Congress wants is accountability. To that end, obfuscation and confusion are desirable. cboldt(Quote)
Mark Buehner says:
Is there a legal issue with a conditional vote? Mark Buehner(Quote)
Adam Sullivan says:
Cantor put this resolution up yesterday (which was defeated) -
As for bicameralism, I am not arguing that point and would agree with you. Further, I don’t think it is judiciable anyway (Field).
On the right of the minority for a recorded vote on “any question”, OTOH, I think the framers would not agree that a bill can be produced by Congress that was never itself a “question” and therefore not subject to a recorded vote. Such a practice undermines accountability provisions written into Article 1.
Saying that “voting on the rule is the same as voting on the bill” doesn’t wash given the facts above. Were it a valid argument, why does the Speaker need the rule in the first place? Why not pass both bills? The question answers itself — to avoid a recorded vote on the Senate bill. Members don’t want to be held accountable and are stripping the minority of its right to hold them accountable. Adam Sullivan(Quote)
Andrew says:
No. Obama would sign HR3590 regardless of whether reconciliation passes.
The will of the House is to speak out of both sides of its mouth, and to pass contradictory legislation at the same time. Andrew(Quote)
cboldt says:
– Is there a legal issue with a conditional vote? –
That depends on the condition(s) and relationships. Many votes are conditional. “I’ll agree to health care if it includes a public option” is a conditional vote. cboldt(Quote)
cboldt says:
– No. Obama would sign HR3590 regardless of whether reconciliation passes. –
I’ll rephrase my contention with more precision. I think the House’s will is fairly clear. It says it will pass HR 3590 if and only if it (the House) also passes reconciliation.
While the House in fact IS speaking with forked tongue, I think that passing HR 3590 unamended is NOT what the House majority wills. If the House majority willed passage of HR 3590, a majority of the House would simply pass it. cboldt(Quote)
Mark Buehner says:
That’s not really a vote though, its a position. To be more clear, is a conditional bill acceptable. IE– we deem this bill passed if X happens. Mark Buehner(Quote)
cboldt says:
– That’s not really a vote though, its a position. –
It could be a vote. The bill is before the body, and an amendment is offered to add public option. Two votes (or maybe the amendment is just adopted), but at the end, one vote, one position, even though the position was conditional. cboldt(Quote)
Andrew says:
So if Obama signs HR 3590 unamended then he would be violating the will of Congress, even though Congress has sent HR 3590 to him unamended?
I know one thing: if signing HR 3590 unamended would not violate the will of Congress, it would violate Article I, Section 7 of the Constitution. Andrew(Quote)
cboldt says:
– So if Obama signs HR 3590 unamended then he would be violating the will of Congress, even though Congress has sent HR 3590 to him unamended? –
There are myriad ways of noticing the problem the House is planning to create, and this is one way.
– if signing HR 3590 unamended would not violate the will of Congress, it would violate Article I, Section 7 of the Constitution. –
Because what is absent in the process is House adoption of HR 3590 unamended, except by an enrollment that amounts to a willful misstatement by the Speaker. By signing a paper that is HR 3590 unamended, the speaker is asserting that the House in fact agreed to HR 3590, unamended. But the House was not put in a position of making that unequivocal statement. cboldt(Quote)
Adam Sullivan says:
It is all designed to be sufficiently vague that any party in the majority can disclaim accountability for any potential outcome. Which supports, IMO, the argument that this rule undermines the accountibility provisions in Article 1, Section 5, Paragraph 3 -
Emphasis added. Adam Sullivan(Quote)
OrenWithAnE says:
I doubt most voters would distinguish between upholding/bending/breaking the Constitution to meet a particular policy goal. In fact, I’d bet that whether they support that goal is almost entirely determinative of their opinion of the constitutionality of the method used to enact it (insofar as they have an opinion on the method at all).
Better for the country is certainly debatable but better at the polls is no contest at all. OrenWithAnE(Quote)
Michael says:
They don’t get to do that. Once they take the vote, Obama can sign the Senate bill, as is. It isn’t a conditional vote at all. Michael(Quote)
Michael says:
But here’s the thing: reconciliation can only be used to change existing law. So if the Senate bill does not first become law, then the Senate cannot pass a reconciliation bill changing it. Michael(Quote)
Michael says:
I checked into it. It starts for children immediately, and for adults in 2014. Michael(Quote)
Michael says:
You are right about reconciliation only changing existing law. So the Senate cannot use reconciliation to pass a bill changing the Senate Bill at least until the House has passed the original Senate bill, and probably until Obama signs it. But the House can pass a fixes bill before the Senate Bill becomes law, because the House is not using the reconciliation process to pass their fixes bill.
Reconciliation refers to the process, not the substance of the bill. The House won’t have to use the Reconciliation process to pass their fixes, because they are not contending with a filibuster. They just have to make sure that all of their fixes are things that the Senate is allowed to pass through reconciliation under the Byrd Rule. Michael(Quote)
MJW says:
What is the meaning of the Marshall Field decision? I think it’s less broad than many here think it is. It holds not that the court won’t consider the constitutionality of the process by which a bill was passed, but rather that the court won’t use the journal or other historical records to compare the text of the enrolled bill to the text passed by the houses to verify they are the same. Or in the words of the syllabus, “It is not competent to show from the journals of either House of Congress that an act so authenticated, approved and deposited, did not pass in the precise form in which it was signed by the presiding officers of the two Houses and approved by the President.
That Marshall Field didn’t prevent the court from considering the bill-passing process is confirmed by United States v. Ballin, 144 U.S. 1 (1892). Ballin was decided later in the same term as Field, which it approvingly cites. And yet the court considered the question of whether a bill had passed with a proper quorum that was properly recorded, and relied on the house journal to answer that question. One specific question, on a vote with a number of members present but refusing to vote, was whether the Constitution’s quorum requirement meant that a majority of the members must be present, or whether a majority must actually vote. After looking in considerable detail, the court concluded the presence of a majority was sufficient.
Those who contend that Field forces the court to accept any enrolled bill as properly passed must explain why the same court that decided Field looked carefully at the process used to pass an enrolled bill. MJW(Quote)
cboldt says:
– Those who contend that Field forces the court to accept any enrolled bill as properly passed must explain why the same court that decided Field looked carefully at the process used to pass an enrolled bill. –
Great cite. Ballin changes the game. My conclusion was conditioned on “if the evidence stops at enrollment,” and Ballin permits evidence beyond enrollment.
Plaintiff can’t prove a negative (the record shows no House decision passing HR 3590, rather, it shows passage of an H.Res. rule), and in order to conclude that the House’s “deemed passage” is deficient, the Court would either have to apply a mechanical rule (the journal MUST have refer to final passage of enrolled bills), or it would have to look at the substance of the interrelated bills and resolution, and perhaps floor speeches and/or external evidence, for finding that a majority of the House would not have passed HR 3590 without amendment.
Ballin refers to “the facts which the constitution requires to be placed on the journal,” which implies the mechanical approach. The constitution requires both chambers pass the bill. Where, in the journal, is House passage of HR 3590? cboldt(Quote)
MJW says:
Thank you vey much, cboldt. Ballin is an interesting case for at least two other reasons.
First, it establishes the extent and limits of the power of each house to determine its own rules:
Second, it indicates that congress is bound by the general rules of parliamentary procedure except when the Constitution specifically provides an exception:
To me, this suggests that by not specifying the procedure by which bills are passed, the framers of the Constitution intended that Congress employ the method traditionally used by parliamentary bodies; that is, a majority vote.
(Oddly, both Fields and Ballin involved bill dealing with woolens.) MJW(Quote)
Stephen Lathrop says:
Could someone please explain to me what’s wrong with this reasoning, or this procedure:
The house receives the Senate’s bill, and adds language saying we deem it passed if the Senate accepts the following modifications. At that point, because of the new language, the bill is not the same as the Senate bill, so it can not be presented to the President, because identical language has not been voted on by both houses.
The Senate takes up the House language, and votes by simple majority to accept the House modifications to the Senate’s original bill. At that point, both houses have voted on the same language, and the bill can be presented to the President. What Constitutional requirement for passage of a bill remains undone?
Presumably Republicans might object that Senate rules would be violated by such a process, denying them a filibuster to which they feel entitled. What business would that be of any court?
In other words, isn’t “deem and pass” really just a way of subverting, if not ending, the filibuster? Stephen Lathrop(Quote)
MJW says:
Stephen Lathrop, as I understand the situation, the problem for the Democrats is that the only method in the senate to limit debate without a cloture vote is reconciliation, but by the provisions of the bill which provides for reconciliation, the bill to be reconciled must first be signed into law before reconciliation can go forward. So the senate can’t proceed on the house modifications until the senate bill is signed, and once the senate bill is signed, no action by the house can unsign it. MJW(Quote)
cboldt says:
– this suggests that by not specifying the procedure by which bills are passed, the framers of the Constitution intended that Congress employ the method traditionally used by parliamentary bodies; that is, a majority vote. –
I agree, and FWIW, my sense is that this conclusion is so obvious, that omitting the words “majority of quorum” from the constitution does not amount to giving the Senate a license to employ minority veto within its rules. The history of parliamentary practice in the Senate supports a finding that the constitution expects the Senate to operate on majority rule. I may have to modify my opinion that abuse of cloture is constitutional during consideration of legislation.
– In other words, isn’t “deem and pass” really just a way of subverting, if not ending, the filibuster? –
But for the filibuster, Congress would do just as you outlined — maybe. In the alternative, the current goings on (facilitated by the institutional abuse of cloture to obtain minority veto power) may be a smokescreen cover by the Senate, against the House, in that the Senate doesn’t have 51 votes in favor of the reconciliation package. cboldt(Quote)
Brett Bellmore says:
But the enrolled bill doctrine stands for the principle that, if the leaders of the two chambers assert that the identical language was voted on by both houses, the courts will not care if the assertion is true.
So, after they’ve done their deeming, the leadership of the House are free to enroll the Senate bill as having passed the House, regardless of the nominally contingent nature of the vote, and send it on to the President for signing. And, so long as the enrolled bill doctrine stands, the courts will stick their fingers in their ears, and go “neener, neener” when anybody tries to challenge this.
The real question here, is how blatant the conflict between the leaderships’ assertions and the bald facts will have to be, before the courts will abandon the enrolled bill doctrine, and rule on the actual facts of the matter. I have to assume that at SOME point the enrolled bill doctrine would break down in the face of a mountain of evidence that the enrollment really was fraudulent.
Short of the point at which we have a revolution? Not so sure about that... Brett Bellmore(Quote)
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Stephen Lathrop says:
My question wasn’t about sending the bill from the House to the President for signing. My question was about not doing that, on the ground that it wasn’t yet ripe for signing because identical language hadn’t been voted on by both houses. Stephen Lathrop(Quote)
Stephen Lathrop says:
My question wasn’t about sending the bill from the House to the President for signing. My question was about not doing that, on the ground that it wasn’t yet ripe for signing because identical language hadn’t been voted on by both houses. Stephen Lathrop(Quote)
OrenWithAnE says:
This is the “nuclear option”, and it would require the majority of Democratic Senators (side note: it would never get anywhere close) to amend Rule XXII. OrenWithAnE(Quote)
Michael says:
In that case the Senate would need to be able to invoke cloture (they wouldn’t be), because reconciliation can only change existing law. If it isn’t even “ripe for signing,” then it isn’t “existing law.” Michael(Quote)
Michael says:
So the idea would be that they couldn’t use reconciliation, so they would have to use the nuclear option, correct? Michael(Quote)
Stephen Lathrop says:
Michael, can you give me a source for that “reconciliation can only change existing law.” I’m not well informed on this stuff, and I’m just wondering if that is maybe a “t” that someone didn’t cross, or if maybe that interpretation of reconciliation isn’t on point with regard to this proposed procedure.
I note that Professor Balkin who’s note was just posted seems to be suggesting something other than this sign-bill-first-then-reconcile stricture that has been repeatedly suggested. Stephen Lathrop(Quote)
Brian B says:
–The history of parliamentary practice in the Senate supports a finding that the constitution expects the Senate to operate on majority rule. –
Does it? The filibuster has been around since at least Cato in Rome and has been possible under Senate rules since at least 1806.
In practice it may constitute a “minority veto” of legislation but in theory it is merely a continuation of debate. Seems to me it acts as a well needed check on harebrained schemes by both sides. And since Senators unlike Representatives do not represent equal population blocs it can be said that the Senate even without the filibuster could still present a minority veto population wise, which was apparently part of the purpose of the Senate to begin with.
Personally I’d like to see them go back to Mr. Smith type filibusters but apparently that is too inconvenient for today’s solons. Brian B(Quote)
Joe says:
Aren’t these the exact ‘free riders’ Obama argued are killing the system by waiting until they get sick and showing up at the emergency room?
Given the need to pay a tax or buy insurance, I’m not sure what is “free” here.
are you really suggesting that incentivizing healthy people not to be in the insurance pool while, while guaranteeing they can get insurance when they get sick at no penalty will bring prices DOWN?
Yes, since insurance companies will want the tax money the people have to pay going into their pockets instead, so have an incentive to reduce prices & provide more of an incentive for these people to buy their product. Meanwhile, the tax balances some the loss to pool that exists now. Is this overly confusing on some level?
Furthermore, the idea that the government sicking the IRS on me for not buying a product I may not want isn’t a mandate just destroys the meaning of the word.
The tax being paid goes toward paying to promote health insurance for the rest of the people plus to pay for the costs paid by the government in any number of situations such as if you were hit by a bus tomorrow and guaranteed emergency care or provided with disability/Medicaid if necessary. Since you having insurance is seen as helpful toward these ends and/or reducing the possibility you will be a ward of the state, the tax is waived. Your anger at not wanting to pay for things and/or not believing you will ever need them is duly noted.
BTW what happens if I refuse to pay the tax and avoid being garnished? That’s right, I go to jail. Not a mandate?
A mandate to pay a tax, yes. We pay taxes for lots of things in this country. We get various tax breaks. Not qualifying for them is not usually deemed a “mandate” to do the things in question. For instance, if serving in the National Guard results in some tax break, hypothetically, I’m not “mandated” to join it even if I have to pay a tax when I do not since I get various benefits when others do so.
Of course, two major means (including criminal penalties) of enforcement of this tax has been removed. Thus, the incentive is somewhat less than it can be. Still, as a whole, most people do follow the law more or less. Joe(Quote)
MJW says:
The filibuster is a result of the rules of debate. And rules of debate are the quintessential example of the type “rules of proceedings” left up to each house. There’s no parliamentary requirement that every issue come to a vote. The Framers were well-aware of senate practices in ancient Rome. MJW(Quote)
Joe says:
“Mr. Smith” was a fictional character. There was and remains loads of ways to avoid a vote given the myriad of Senate procedures to play with. As for debate, that’s fine, but after a certain point, that is not the reason for its use. This matter has been “debated” for quite some time. Also, many filibusters are solely used for delay, including for nominations that are never really debated on and result in lopsided votes.
The possibility of quickly passed legislation not really a big problem these days, and to the degree it is done by both sides the filibuster is not necessary to prevent it, the filibuster as used is abusive. Joe(Quote)
OrenWithAnE says:
Either that or rewire Scott Brown’s brain. OrenWithAnE(Quote)
Michael says:
Here’s a short bit on it from an article that seemed pretty balanced when I skimmed it:
“In 1974, a provision of the Congressional Budget Act called “reconciliation” provided an alternative path to congressional approval of deficit affecting legislation. It allows for a simple majority vote on changes to existing law. Although the discussion that resulted in this provision is not easily documented, it seems reasonable to assume that the addition of this new road to passage was the limited solution to the problem of the filibuster in the Senate.
In 1985, reconciliation was further refined and limited by applying six additional tests to use and exceptions to those rules. The author of the refinements was Senator Robert Byrd of West Virginia…still in the Senate and its oldest member.”
http://www.examiner.com/x-5968-DC-Public-Policy-Examiner~y2010m3d3-Budget-reconciliation-at-the-sausagemaking-factory-located-on-top-of-the-Capitol-Hill Michael(Quote)
Debra Pilla says:
Do you “airheads” really think that the President,and Speaker Pelosi would go to such lengths, without legal advise on Deem and Pass?
Use your heads!!!! Be wise!!!!!!
Do you really think they just whipped this idea up at the last minute? come on now, common sense is required here.
Face the facts boys; my “Republican Right-wing” party of “NO” is doomed at last!!!!!!!!
I am laughing all the way to the bank on this!!
“My party of “NO,” they must go!!!!!!!!!!
It’s time to get “working” Responsible Moderate Republicans in the House and Senate.
I suggest you all reread Marshall Field Law again!
Once the majority party has signed the journal, then it is passed to the President for his signature. The end. Stop all your boo-ha! Debra Pilla(Quote)