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!

Stephen Lathrop: 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.

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

So the idea would be that they couldn’t use reconciliation, so they would have to use the nuclear option, correct?

Either that or rewire Scott Brown’s brain.

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.

Brian B: Does it? The filibuster has been around since at least Cato in Rome and has been possible under Senate rules since at least 1806.

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.

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.

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.

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.

OrenWithAnE:
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.

So the idea would be that they couldn’t use reconciliation, so they would have to use the nuclear option, correct?

Stephen Lathrop:
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.

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.”

Could someone please explain to me what’s wrong with this reasoning, or this procedure:
[...]

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.

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.

Brett Bellmore: 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.

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.

Brett Bellmore: 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.

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: 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.

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…

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?

cboldt:
Great cite.

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:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just.

Second, it indicates that congress is bound by the general rules of parliamentary procedure except when the Constitution specifically provides an exception:

The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes, and here the general rule of all Parliamentary bodies is that when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either House shall be necessary for the passage of any bill. No such limitation is found in the federal Constitution, and therefore the general law of such bodies obtains.

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.)

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.

Adam Sullivan:
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?

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.

rpt:
I believe it starts as soon as the bill is signed. That is a good thing.

I checked into it. It starts for children immediately, and for adults in 2014.

cboldt: – 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?

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.

cboldt: – So they are approving the Senate bill as is, and also passing a bill that will be the House analogue of the Senatereconciliation 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.

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.

Ummm — I think the voters would prefer they honor their oaths to uphold the Constitution rather than undermine it, don’t you?

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).

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.

Better for the country is certainly debatable but better at the polls is no contest at all.

cboldt: 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.

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 -

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Emphasis added.

cboldt: I think that passing HR 3590 unamended is NOT what the House majority wills

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.

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.

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.

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: I think the House’s will is fairly clear. It says it agrees to HR 3590 if and only if reconciliation passes too.

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.

Christopher Cooke: Really?I would be interested in seeing where any of them said what you attribute to them.

Cantor put this resolution up yesterday (which was defeated) -

Resolution:

Raising a question of the privileges of the House.

Whereas at least three members of the House Democratic Leadership have endorsed a procedural tactic for the sole purpose of avoiding an up-or-down vote, by the yeas and nays, on the Senate-passed health care bill;

Whereas on Tuesday, March 16, 2010 Representative James Clyburn, the House Majority Whip, stated, “We will deem passed the Senate bill…”;

Whereas on Tuesday, March 16, The Washington Post reported, “After laying the groundwork for a decisive vote this week on the Senate’s health-care bill, House Speaker Nancy Pelosi suggested Monday that she might attempt to pass the measure without having members vote on it. Instead, Pelosi (D–Calif.) would rely on a procedural sleight of hand…”;

Whereas in the same Washington Post article, the Speaker declared, “…I like it because people don’t have to vote on the Senate bill.”;

Whereas on Tuesday, March 16, McClatchy Newspapers reported Representative John Larson, chairman of the House Democratic Caucus, stated, “Many of our members would prefer not to have voted for the Senate bill.”;

Whereas on Tuesday, March 9, U.S. News and World Report reported, “Pelosi gaffed, telling the local elected officials assembled ‘that Congress [has] to pass the bill so you can find out what’s in it, away from the fog of controversy.’”;

Whereas on Tuesday, March 16, The Washington Post editorialized, “…what is intended as a final sprint threatens to turn into something unseemly and, more important, contrary to Democrats’ promises of transparency and time for deliberation. …[I]t strikes us as a dodgy way to reform the health-care system. Democrats who vote for the package will be tagged with supporting the Senate bill in any event.”;

Whereas on Tuesday, March 16, the Cincinnati Enquirer editorialized, “This disgusting process, which Democrats brazenly wish to bring to conclusion this week, is being done with little regard for the opinions of a clear majority of Americans who, while they may believe health care reform is necessary, think this particular approach will take our nation down the wrong economic path.”;
Whereas bipartisan members of the House and Senate have expressed their opposition to using the Slaughter Solution;

Whereas on Wednesday, March 10, Representative Joe Donnelly released the following statement, “The process over the past few months has been frustrating, including the cutting of unacceptable special deals to assure a few senators’ votes.”;

Whereas Representative Jason Altmire of Pennsylvania has characterized the exploitation of the Slaughter Solution by Democratic Leadership as “wrong” and unpopular among his constituents;

Whereas on Friday, March 12, POLITICO reported on a memo sent from Representative Chris Van Hollen, chairman of the Democratic Congressional Campaign Committee, to freshman and sophomore House Democrats that stated, “At this point, we have to just rip the band-aid off… Things like reconciliation and what the rules committee does is INSIDE BASEBALL.”;

Whereas on Tuesday, March 16, Roll Call reported, “Hoyer argued that the American public isn’t interested in the process lawmakers use for approving reforms…”;

Whereas on Tuesday, March 16, Representative James Clyburn told Fox News, “Controversy doesn’t bother me at all.”;

Whereas the Democratic leadership of the House has conducted a calculated and coordinated attempt to willfully deceive the American people by embracing the “Slaughter Solution”;

Whereas resorting to the “Slaughter Solution” in this circumstance, is being done to intentionally hide from the American people a future vote that Members of Congress may take on the Senate-passed health care legislation;

Whereas the deceptive behavior demonstrated by the Democratic Leadership has brought discredit upon the House of Representatives; and

Whereas the Democratic leadership has willfully abused its power to chart a legislative course for the Senate health care bill that is deliberately calculated to obfuscate what the House will vote on, in an illegitimate effort to confuse the public and thereby fraudulently insulate certain Representatives from accountability for their conduct of their offices: Now, therefore, be it

Resolved, That the House disapproves of the malfeasant manner in which the Democratic Leadership has thereby discharged the duties of their offices.

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.