Yale’s Jack Balkin is now convinced that Democrats in the U.S. House of Representatives have found a constitutional way to combine passage of the Senate health care reform bill with revisions to be passed as part of a reconciliation process. In a letter to House Rules Committee Chair Louise Slaughter (reproduced here) Balkin writes:
Under Article I, section 7 of the Constitution, a bill does not become a law until it is passed by both houses of Congress, presented to the President for his signature, and the President then signs the bill or otherwise allows it to become law without his signature. These are sometimes collectively referred to as the requirements of bicameralism and presentment.
In order to satisfy the requirements of bicameralism and presentment, the two houses must pass bills with identical language. Clinton v. City of New York, 524 U.S. 417 (1998).
As I understand it, the rule to be employed by the House for the consideration of the reconciliation measure will state that, upon passage of the reconciliation measure by the House, the House concurs in the amendments to H.R. 3590 passed by the Senate. This language means that the House agrees to pass the same language as the amended bill passed by the Senate.
If this is the case, then the language of this self-executing rule complies with the requirements of Article I, Section 7. The Constitution does not require that the House take a separate vote on the Senate amendments to H.R. 3590. Under Article I, Section 5, Clause 2, the Constitution gives the House of Representatives, like the Senate, the power to “determine the rules of its proceedings.” A rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House’s powers under Article I, Section 5, Clause 2.
Writing in the Wall Street Journal, Stanford’s Michael McConnell responds:
No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.
Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.
Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.
McConnell also addresses arguments that judicial review of the “Slaughter Solution” is precluded by Field v. Clark. According to McConnell, “It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution.” While I don’t think the U.S. Court of Appeals for the D.C. Circuit is likely to accept this distinction (as I noted here), I think that it is a very serious argument, and one the Supreme Court might well accept. (And, I should note, were the Supreme Court to accept this argument, I think it is unlikely that the Court would divide along traditional ideological lines, as this sort of question tends not to divide the Court in this way; see e.g. Clinton v. New York).
Dave N. says:
While I am opposed to the health care bill, I am amazed that the Democrats are willing to risk having the House vote declared void (and the law declared unconstitutional on that narrow basis). The chance of passing a new health care bill should that occur would be close to zero.
March 20, 2010, 12:14 pmDr. Weevil says:
If I understand the issue correctly, for the Slaughter solution to work, the House has to pass something that must be simultaneously one single bill and two separate bills. Perhaps they should consult some Christian theologians about the theory of the Trinity, and how one God can be three separate persons. Then again, maybe they should try to avoid anything that looks the least bit like an impenetrable theological mystery and try passing an ordinary bill (or bills) in the usual way.
March 20, 2010, 12:16 pmCarol Herman says:
I’m not a lawyer. But since I heard the lawyer calling into Rush’s show, yesterday, I became aware that Article #5, which is ahead of Article #7 (just by simple arithmetic), asks for a recording (by 1/5th of the House), which would become a necessity. That Field Marshall rules? Nah. I don’t think so. I think this ‘vote’ would be tossed to the Supreme’s quickly. Dunno IF Boehner, or other members of the GOP could send in Amicus Briefs? But why not? Why not assume even Newt Gingrich throws one in? And, Dick Morris goes out of his way to collect money from contributors, to send ads up all over the place?
If I was a lawyer, I’d see this as a bonanza. Because all the supreme’s have to decided is if the ‘new law’ also has the required signatures. If not? Back it goes for a vote. SIMPLE. It’s not an interference, at all.
Back during vietnam, what brought LBJ to his heels, was the fact that he thought he could do what he wanted. Only to discover, first, that so many millions of American men, under the age of 20, began resisting. (Non-Compliance became a virtue. Western Civ got tossed out of academia, along with the ROTC.) And, Nixon had to reverse the draft. Or face the reality that more men “disappeared” in Canada, than you can count died and have their names displaced on DC’s wall.)
Non-compliance is always an issue when people fight back. Heck, back in the 1960′s, the going statement was “Don’t Trust Anybody Over 30.” Followed by songs. One started out with spelling the “F” word. How do I know? I was in central park, when a lot of people, on a hot summer night, were forced to close their windows.
Today? The Capitol’s windows don’t open. People hardly remember LBJ. Let alone the John Dean hearings. And, the summer of 1974, when a president who won in a landslide had to resign.
Why do politicians prefer dragging dead horses around? Will our music, ahead, improve? What will lawyers do when a majority increases doing their own versions of non-compliance? Will the Supreme’s decide they might as well be as unpopular as pelosi?
March 20, 2010, 12:40 pmSyd Henderson says:
It’s tricky and risky, but I think Balkin’s more nearly correct than McConnell. This is why legislation is compared to making sausage; you don’t want to look too closely at how either is made.
March 20, 2010, 12:40 pmJoe says:
an impenetrable theological mystery
Prof. Balkin explains how McConnell is the true angel counter here. But, this won’t stop Adler and other likely suspects (in no way directly overlapping opponents of the bill) dreaming the impossible dream. I’m with Balkin:
All this is particularly tiresome and formalistic. Having to rehearse these arguments is like having to wonder about how many angels can dance on the head of a pin.
But, like a good solider (see also his defense of the insurance or pay a tax aspect), Balkin plays the game. And, comes out the winner, to this viewer.
March 20, 2010, 1:08 pmConstantin says:
Prof. Adler underestimates the chances of a typical ideological divide were this ever to make it to the Supreme Court. Frankly, I think such a predictions gives those nine people way too much credit. Each would know what’s on the line policy-wise, and rule accordingly. Bush v. Gore redux.
March 20, 2010, 1:08 pmBrett Bellmore says:
McConnell is right on the Constitution, Balkin is right on how the courts are likely to rule. And it’s a shameful thing that you have to make that distinction.
March 20, 2010, 1:19 pmmls says:
Balkin says “A rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House’s powers under Article I, Section 5, Clause 2.”
Thats an assertion, but its not really an argument. Maybe its within the House’s powers, but there is nothing in constitutional text, judicial precedent or congressional precedent to say that it is.
As I pointed out to Balkin in correspondence this morning, the Constitution doesn’t define what constitutes a “bill.” He assumes that the House can vote on a particular legislative measure and choose to define it as two separate bills (or presumably 20 bills). Since the House has apparently never done this before, this seems like a pretty big assumption.
There a lot of things that the House and Senate might theoretically do to define what constitutes a bill (or what constitutes “passage”). The real life example that I have repeatedly pointed to (and so far no one has responded to) is the “separate enrollment” version of the line item veto. Up to this point, however, the practice of each house has been to vote on a single bill at a time.
The essence of Balkin’s position seems to be that this is a mere formality that no one should really care about. But there are only two reasons why the Slaughter Solution is being considered (1) to avoid accountability for the vote on the Senate bill and/or (2) because otherwise the Senate bill would not pass. TThis is hardly a meaningless formality.
March 20, 2010, 1:37 pmmattski says:
You want to flesh that out, Brett?
And are you saying that you don’t agree with JB’s analysis here or perhaps you accept his analysis but believe you know that the House leadership will not follow his recommendations?
March 20, 2010, 1:39 pmfrankcross says:
I think the Court is very likely to duck the question under Field. But what intrigues me about McConnell’s argument is the sentence:
There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.
From this, I infer (“may have been”) he doesn’t know how many other questionable uses there have been, but, even in this ignorance, he asserts that the number was “not often enough or in prominent enough cases.” I don’t see how you can make that assertion without knowledge of usage. I heard Thomas Mann report that it was used about 80 times within the last ten years alone, and he mentioned the Patriot Act reauthorization. So I don’t think it is clear that past use was not a strong precedent.
Another thing the Court might think about. If the practice is unconstitutional, the past laws adopted by the practice presumably are not law. It might behoove us to know what those laws were. Are those convicted under the reauthorized Patriot Act to be released upon an opinion finding the practice unconstitutional?
March 20, 2010, 1:42 pmAndrew says:
If the Supreme Court does get involved (and I agree with McConnell that doing so would be appropriate), then the Court would have to move pretty fast. Otherwise, by the time the Court gets around to deciding this issue, there could be a fait accompli; the Senate would have approved a reconciliation bill by then, so that the House could follow up by approving both bills in a completely constitutional manner.
So, a preliminary injunction would be necessary, preventing the Senate bill from becoming a law. In that event, the Senate would not be able to proceed with reconciliation.
March 20, 2010, 2:03 pmrpt says:
Here we go again. R deem and pass is just fine; D deem and pass is the end of the world.
March 20, 2010, 2:16 pmSteve says:
So the Constitution says voting on a bill and an amendment with one vote is just fine, but voting on two bills with one vote is unacceptable? Uh huh. Must be somewhere in that “one-sixth of the economy” clause that makes everything different.
March 20, 2010, 2:20 pmAndrew says:
Also, I think Professor Balkin should know better. According to his argument, the Court would have decided Clinton v. New York (the line-item veto case) differently if Congress had simply added a clause to that legislation saying “each word herein shall be construed as a separate bill.” That’s absurd, and it’s very sad to see such obfuscation coming from Balkin. Article I, Section 7 says very clearly that its requirements do not depend upon mere nomenclature.
March 20, 2010, 2:22 pmMJW says:
Please consider my comment on U.S. v. Ballin, which I believe shows that the “Enrolled Bill Doctrine” is only that the court will take enrollment as proof that the language of the enrolled bill is the same as the language passed by both houses.
Short summary: Ballin was decided later in the same term as Field. The court looked at the process, prior to enrollment, used to pass the bill to determine whether it was constitutionally passed.
Note that the D.C. court decision in Public Citizen is consistent with my interpretation of Field, since the case concerned supposed differences between the house and senate bills.
March 20, 2010, 2:32 pmjrose says:
Can you provide citations that argue against the constitutionality of separate enrollment?
March 20, 2010, 2:37 pmmls says:
My breaking news alert says that the House will now hold separate vots on the Senate bill and the reconciliation. Which shows that Congress can do the right thing, when all other options have been exhausted.
March 20, 2010, 2:37 pmmls says:
if you go to http://www.pointoforder.com, you will see that I linked to Elizabeth Garrett’s article on the line item veto. She discusses the Senate debate on the constitutionality “separate enrollment” and expresses her view that the constitutionality of that version was more doubtful than the enhanced rescission version that was eventually struck down in Clinton v. NY.
As far as the Senate debate goes, a majority of Senators believed it was constitutional, but a significant minority (including Senator Byrd, no surprise) thought that it wasn’t. I would imagine that there are other legal commentators besides Garrett who have looked at the issue, but I haven’t looked into that.
March 20, 2010, 2:44 pmBob Woolley says:
The “as I noted here” link goes back to the McConnell WSJ piece, rather than to wherever it was meant to go.
March 20, 2010, 2:58 pmManuel Lopez says:
On the separate vote plan, it’s unclear to me: they will vote on the amendment before they vote on the senate bill itself. So they will vote to amend something they haven’t brought into existence yet?
I suppose it’s better than “deem and pass,” but from a logical point of view, it could happen that the amendment passes and not the underlying bill (the senate bill). What would the law be then? Would the president have anything to sign (if the senate agrees with the House amendments)? Or would failure on approving the senate bill in the later vote then retroactively cause the amendments to be “deemed” killed?
See:
March 20, 2010, 3:09 pmThe link feature didn’t work, but here it is in text:
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/20/AR2010032001651.html
Manuel Lopez says:
The link feature didn’t work, but here it is in text:
March 20, 2010, 3:09 pmhttp://www.washingtonpost.com/wp-dyn/content/article/2010/03/20/AR2010032001651.html?hpid=topnews
orca says:
Citing the Constitution to stop something always seems to be such an act of desperation.
March 20, 2010, 3:13 pmOhio Scrivener says:
They both have decent arguments, and this won’t be an easy decision should the legislation come before the Supreme Court on the merits. The easiest path may be for the Court to simply decline to hear the case as a political question — although, even that comes at a cost given the level of uproar over this legislation.
In any event, if I were Obama, I would nix the criticism aimed at the Supreme Court during the next SOTU. Otherwise, this is setting up to give the Court the last word in a rather profound way.
March 20, 2010, 3:32 pmjrose says:
Thanks, it’s a good article (download it here).
Her assertion, based on the greater debate in the Senate on the constitutionality of separate enrollment, strikes me as off-point. The Senate debated it because they like to debate such things, and it was their preferred bill.
On the merits as discussed in the CRS brief she cites, the most problematic aspect wasn’t passing many mini-bills with one vote, but insuring that the mini bills could be reconstructed into the omnibus bill that started the budget process. Such reconstruction is not at issue in the current case.
I think Balkin (and McCain, Biden, Coats, and the other majority of the Senators) have it right. However, it is not settled, and appears to me to be fair game for a challenge under Field because it concerns the Presentment Clause, not the Bicameralism Clause.
March 20, 2010, 3:33 pmMLS says:
As I read a CNN report about the House, it seems to be saying that (1) a rule will be voted on, (2) House amendments to the Senate bill will be voted upon, and (3) the Senate bill will then be voted upon.
Curious why (1) even needs to be considered.
Curious why (2), an amendment to the Senate bill, preceedes (3), the Senate bill itself. I would think the reverse would be the case. Is this a parlimentary maneuver, or am I reading too much into the order the bills will be voted upon?
March 20, 2010, 3:33 pmcboldt says:
– Is this a parlimentary maneuver, or am I reading too much into the order the bills will be voted upon? –
March 20, 2010, 3:43 pmYou are reading too much into the order. Under the procedure you outlined, the two bills are independent. If the House agrees to HR 3590, then HR 3590 is in condition for enrollment and presentment. If the House initiates/passes reconciliation, it knows that passage of that bill is contingent on the Senate concurring.
If the House passes HR 3590, as amended by the Senate, that is the House saying that it agrees with HR 3590, as amended by the Senate. No strings, no conditions, no ifs, ands, or buts.
Steverino says:
The fact that the House appears to have dropped the idea seems to indicate that “Deem and Pass” couldn’t do what they wanted it to do.
Which was to find a way to claim they had passed a bill that could be considered “current law” for certain purposes but not for others.
I.e. in order to evade the amendment process and use the reconciliation process. But ensure the bill couldn’t actually become the law of the land without the amendments.
The way the House rules commitee imploded today, I don’t really believe many really understood what it was they were trying to do.
If they thought it merely did what Balkin understands it to do, send a bill to the President to be signed into law while sending a package of budget items to the Senate, I don’t think they would have dropped it.
If they really have dropped the idea. Bad ideas on the hill keep resurrecting themselves.
March 20, 2010, 3:53 pmcboldt says:
– Curious why (1) [a H.Res. "rule"] even needs to be considered. –
March 20, 2010, 3:53 pmThat’s the procedure the House uses to establish the parameters for considering questions, debating them, and voting on them. It’s routine, for the most part.
It was the centerpiece for deemed pass, as “the rule” recited the conclusion that the House was going to consider the “senate bill” (HR 3590, as amended by the Senate) passed on the condition that the House passed a reconciliation package.
jrose says:
Looks like the House will vote on the reconciliation bill before voting on the Senate bill. Does the House parlimentarian disagree with the Senate parlimentarian?
March 20, 2010, 3:53 pmJoe says:
couldn’t do what they wanted it to do.
or wasn’t necessary or worth the trouble
March 20, 2010, 4:04 pmcboldt says:
– Looks like the House will vote on the reconciliation bill before voting on the Senate bill. Does the House parlimentarian disagree with the Senate parlimentarian? –
March 20, 2010, 4:05 pmIf the rule is “reconciliation must pass Congress after the underlying bill does,” there is no problem. The underlying bill passes first, due to its already being agreed to by the Senate. Passage of reconciliation is pending, and may never occur.
Manuel Lopez says:
Is it customarily done in this sequence? At any rate, politically there is certainly a lot of meaning to the order.
March 20, 2010, 4:06 pmcboldt says:
– couldn’t do what they wanted it to do.
March 20, 2010, 4:07 pmor wasn’t necessary or worth the trouble –
Or was subject to reversal as not meeting the requirements for passage as set forth in the constitution.
cboldt says:
– Is it [the order of House votes] customarily done in this sequence? —
March 20, 2010, 4:09 pmNo, or at least not in a small time window that invites scrutiny.
– At any rate, politically there is certainly a lot of meaning to the order. –
Yes. The public will be fooled. Again. It’s easy to do that.
jrose says:
If the House can vote on the reconciliation bill before it votes on the original bill, why can’t the Senate vote on the reconciliation bill in the time between those two House votes?
March 20, 2010, 4:25 pmcboldt says:
– If the House can vote on the reconciliation bill before it votes on the original bill, why can’t the Senate vote on the reconciliation bill in the time between those two House votes? –
March 20, 2010, 4:30 pmIn this case, because the elapsed time between the (assumed) two House votes passing the respective bills is too short to admit communicating House action on the reconciliation bill to the Senate. The law will deem the Senate unaware of the House passage of reconciliation, until the HR “reconciliation” is carried from the House to the Senate. The Senate can’t act on a paper that is not in the Senate’s possession.
Steverino says:
Ok, so (1) the House passes a rule governing consideration of the the Reconciliation Act.
Then (2) at the conclusion of the time allotted under the rule the House votes on the Reconciliation Act, H.R. 4872.
Then (3) the House votes on H.R. 3590, the Health Care Reform bill as received by the Senate.
The order of the proceedings implies no other meaning to me than they are going from easiest to hardest. If they had the votes to do this last week, they could have done this already.
The Democratic leadership is saying they’ve got the votes. If they do, then all that dealing over “Deem and Pass” was just meaningless Kabuki.
If the H.R. 3590 passes tomorrow without the special assurances that the undecided and no votes said were vital to them, they’re going to be exposed as, well, something other than the individuals of conscience they’ve been pretending to be for the past few days.
I would say “opportunistic politicians.” But I can’t see how any politician who’s held out this long against a straight up-or-down vote based upon the calculation that it would be career suicide can be called opportunistic after committing the fatal act.
Anyway, I’m glad they dropped the dubious slight of hand. I don’t see how this helps keep the coalition that Pelosi had to rely on “Deem and Pass” in order to build together, though.
March 20, 2010, 4:31 pmMJW says:
Though it looks like deem-and-pass is thankfully dead, I wanted to add one more observation on the reason the court would accept enrollment as proof the agreement in the wording of the house and senate versions of a bill, while not accepting it as proof that a bill was passed by a constitutional process: The first is a question of fact; the second is a question of law.
March 20, 2010, 4:40 pmcboldt says:
– Please consider my comment on U.S. v. Ballin …–
March 20, 2010, 4:47 pmI want to reiterate that I think this cite is positively on point for predicting if/how the Court would address a constitutional challenge to “deemed pass.” How did you come across it?
Also, my compliments on your summaries of finding/holdings distinguishing Marshall Field from Ballin. Concise, clear and well stated, and accurate.
Arthur Kirkland says:
Now that the “deem and pass” legal issue has been mooted, anyone want to guess where Mr. McConnell and the Wall Street Journal come out on health care reform?
March 20, 2010, 5:20 pmjrose says:
Why doesn’t the House just wait for its second vote until the Senate passes the reconciliation bill?
March 20, 2010, 5:38 pmmls says:
Because reconciliation requires a “change in law,” according to the Senate Parliamentarian, so that the Senate bill has to be signed into law before the reconciliation fix bill can be considered under reconciliation procedures in the Senate. At least that is my understanding.
March 20, 2010, 5:48 pmjrose says:
Mine too. Sow, how come the House gets to vote on the reconciliation bill before it votes on the Senate bill?
March 20, 2010, 5:59 pmcboldt says:
– Why doesn’t the House just wait for its second vote until the Senate passes the reconciliation bill? –
March 20, 2010, 6:03 pmBecause that would unmask the latent procedural (but not unconstitutional) defect.
rpt says:
It’s the end of the world as we know it. Just like social security, medicare, Brown v. Board, the Civil Rights Act, unemployment compensation, the 8 hour day, and so on.
March 20, 2010, 6:03 pmSteverino says:
So what does this mean? Given that medicare, the civil rights act, and unemployment compensation passed with bipartisan support.
That means that if you were opposed to “Deem and Pass” from the start you are opposed to Health Care Reform in general, this Act in particular, and everything else on that list?
The only Senator still in that body who had anything to do with the Civil Rights Act was Robert Byrd (D-WV). What side of the issue do you think he was on?
March 20, 2010, 6:12 pmMJW says:
I can’t take credit for finding that case. Mls mentioned it in regard to its discussion of the limits on the power of the houses to make their own rules.
March 20, 2010, 7:16 pmcboldt says:
– I can’t take credit for finding that case. Mls mentioned it in regard to its discussion of the limits on the power of the houses to make their own rules. –
March 20, 2010, 7:48 pmWell, you did a service by reading/summarizing the case and making a point of emphasizing how it fit to the issue under examination. I privately speculated you found it by Shepardizing the Marshall Field case, or else had reason to know it on account of personal interest. I’m going to make an effort to remember it as pertaining to the constitutionality of the filibuster.
Axl says:
Deem and pass to increase the debt ceiling, by the Repubs, resulted in a law suit (Pelosi joined, look it up). So please, stop whining. Deem and pass on legislation as significant as this (healthcare) should be questioned by everyone.
March 21, 2010, 1:31 amWaldberger says:
Hi I wishes a nice and successful day all present ones
March 21, 2010, 7:11 amLegalCookie says:
Gotta ask… who would have standing to challenge this method in the first place?
March 21, 2010, 11:12 amMJW says:
LegalCookie, from Clinton v. City of New York, I don’t think members of congress would have standing; from Field and Ballin I’m pretty sure anyone subject to a tax increase would.
March 21, 2010, 2:23 pm