The Volokh Conspiracy

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward:  the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

The  WSJ has an investigative report in Monday’s paper showing extensive buying and selling of stocks by Congressional staffers who work for members of Congress with jurisdiction over the traded companies.

The Journal analysis showed that an aide to a Republican member of the Senate Banking Committee bought Bank of America Corp. stock before results of last year’s government stress tests eased investor concerns about the health of the banking industry. A top aide to the House Speaker profited by trading shares of Freddie Mac and Fannie Mae in a brokerage account with her husband two days before the government authorized emergency funding for the companies. Another aide to Republican lawmakers interested in energy issues, among other things, profited by trading in several renewable-energy firms.

The aides identified by the Journal say they didn’t profit by making trades based on any information gathered in the halls of Congress. Even if they had done so, it would be legal, because insider-trading laws don’t apply to Congress. . . .

An analysis of financial-disclosure forms for 2008 and 2009 compiled by the website LegiStorm shows that several hundred congressional aides bought or sold stocks. At least 72 traded the stocks of companies their bosses write laws for.

The disclosure only requires dollar ranges for stock holdings and capital gains, so it is impossible to calculate from them precisely how much aides make trading stock in dollar terms. (Some aides opted to give precise numbers to the Journal.) Still, because the disclosure forms specify the days when shares were bought and sold, the Journal was able to calculate the minimum profits that aides made in percentage terms.

Legislative staffers are not the only ones in the game. See Professor Bainbridge’s “Insider Trading Inside the Beltway.”

UPDATE: Professor Bainbridge has more here.

Earlier this week, I wrote that NRA would be foolish obey the wishes of Republican activists who want the NRA to endorse only Republicans, and especially to not endorse endangered House Democrats. Here are some data on NRA endorsements, and some of the actions that dozens of House Democrats have taken to merit their endorsements:

NRA Senate endorsements in 2010: 23 Republicans, 2 Democrats.

NRA House endorsements in 2010: 197 Republicans and 61 Democrats.

There were 251 Congresspersons who signed the pro-Second Amendment incorporation congressional amicus brief in McDonald v. Chicago. Of the signers, 81 were House Democrats, and 19 were Senate Democrats, including Majority Leader Harry Reid.

A top NRA priority in Congress is H.R. 2296, to reform the Bureau of Alcohol, Tobacco, Firearms & Explosives.  Of the 243 cosponsors, 76 are House Democrats.

Another NRA-favored bill is H.R. 442, the “Veterans’ Heritage Firearms Act,” would create an amnesty period to allow the registration of war trophies (e.g., an automatic rifle captured from the North Vietnamese Army) that were brought into the United States between 1934 and 1968. There are 211 cosponsors, 66 of whom are House Democrats.

The bill that would have the most significant practical effect for most gun owners is H.R. 197, the “National Right-to-Carry Reciprocity Act .” Sixty-five House Democrats are among the 209 cosponsors.

Early in the Obama adminisration, Attorney General Eric Holder said that the 1994 ban on so-called “assault weapons” and magazines holding more than 10 rounds, which sunset in 2004, should be re-enacted. Sixty-five Democratic Congressmen signed a letter to the Attorney General, opposing a new ban. In addition, Ike Skelton, the Missouri Democrat who chairs the Armed Services Committee, sent a separate letter to Speaker Pelosi and Majority Leader Hoyer expressing his opposition to the Attorney General’s remarks. The show of Democratic opposition demonstrated that there was no chance that a ban could pass Congress.  Since then, Attorney General Holder has not made any public statements in favor of gun bans. 

As the numbers above illustrate, Democrats constitute an indispensible part of the pro-Second Amendment majority of the current Congress. Without the NRA’s strong working relationship with so many Democrats, 2009-10 would have seen the enactment of destructive legislation for gun rights, rather than the constructive legislation which has become law.

That’s the topic of my article in yesterday’s edition of The New Ledger. Bottom line: in the Venn diagram, Republican gains and pro-Second Amendment gains sometimes overlap, but not always.

New Hampshire, West Virginia, Indiana, North Dakota are guaranteed gains for Second Amendment supporters, regardless of which party wins.

The most important races, from a right to arms viewpoint, are Connecticut, New York (Gillibrand), Pennsylvania, Ohio, Missouri, Colorado, Washington, and California.

A Democratic-controlled Senate in 2011 with a Majority Leader other than Harry Reid could well be more problematic for Second Amendment rights, even though the total number of pro-rights Senators would have increased.

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

Continue reading ‘The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school’ »

Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync by several seconds.) The format was Kopel presentation, Dubofsky presentation, Kopel rebuttal, Dubofsky rebuttal, and then questions from the audience. Pursuant to the framing of the question, both of us devoted substantial attention to whether Colorado Attorney General John Suthers made the right decision in joining the 20-state coalition lawsuit against the new law. The pro/con presentations take about an hour, and the full program is 1 hour and 36 minutes.

This week’s National Journal poll of political bloggers asked about the impact of the Wall Street reform issue on the midterm elections. Ninety-four percent of the Left bloggers thought that it would help Democrats a lot or a little. The Left was evenly divided between expecting the issue to hurt Republicans a little, or to have no impact. My guess was that it would hurt Republicans a little, although the result might depend on the substance of what the Republicans do: “Republicans would be wrong, as a matter of policy and of politics, to oppose reforms which would reduce the ability of Wall Street to make the public pay for losing bets on complex financial instruments. It would be politically self-destructive for anyone to vote for a bill which provides congressional pre-authorization for more bailouts, including bailouts of the creditors of an insolvent Wall Street firm.” And yes, I’m aware the the bailout fund is now gone from the bill; but the bill still has authority for the executive branch to take money from prudent banks and give it to the reckless creditors of imprudent banks. In general, the bankruptcy laws provide a fair and orderly process to terminate the operations of a bankrupt financial services company; the Dodd bill, in contrast, provides nearly limitless executive power, almost no due process protections, and tremendous opportunity for abusing the system to help politically-favored creditors, or to threaten political opponents with federal destruction of their company.

Asked about what areas the President’s deficit reduction commission should focus on, the bloggers split. A hundred percent of the Left, and 50% of the Right (including me) wanted the commission to consider defense budget cuts. Huge majorities of the Right, and 36-46% of the Left wanted consideration of cuts in domestic discretionary spending, social security, and medicare. (I was for considering cuts in all these.) Eighty-seven percent of the Left, but only 37% of the Right, wanted consideration of tax increases. I favored an alternative approach: “Instead of tax increases, elimination of corporate welfare could raise a great deal of new revenue.”

p.s. Readers looking for good ideas on corporate welfare cuts could start with this collection of materials, from my colleagues at the Cato Institute.

“Senate Majority Leader Harry Reid says ‘we’re going to have comprehensive immigration reform now.’ Top political bloggers don’t see it.” So begins the National Journal’s write-up of this week’s blogger poll. Seventy percent of the Left and 78% of the Right called enactment of a comprehensive bill either “very” or “somewhat” unlikely. I was in the “very” group: “As the passage of ObamaCare showed, the Reid-Pelosi team has extraordinary talent at pushing unpopular legislation through Congress. But it seems unlikely that there will be enough swing-seat Democrats, who are already in enough trouble, willing to change their own chances of re-election from ‘difficult’ to ‘nearly impossible.’”

The second question asked the bloggers if they were open to supporting some form of a VAT. Only 1/3 of the Left and 1/6 of the Right expressed openness. I was part of that small minority: “If and only if accompanied by substantial, immediate fiscal reform, such as a balanced budget amendment, major entitlement reform, a large reduction in the percentage of the population who are consumers rather than payers of income tax revenues, and an iron-clad program to pay down the federal debt.”

Today’s New York Times presents evidence that it did not.

It is often said that the new health care law will affect almost every American in some way. And, perhaps fittingly if unintentionally, no one may be more affected than members of Congress themselves.In a new report, the Congressional Research Service says the law may have significant unintended consequences for the “personal health insurance coverage” of senators, representatives and their staff members.

For example, it says, the law may “remove members of Congress and Congressional staff” from their current coverage, in the Federal Employees Health Benefits Program, before any alternatives are available.

The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?

President Obama made fifteen recess appointments today, including two to the National Labor Relations Board and four to the Equal Employment Opportunity Commission. Embattled Justice Department nominee Dawn Johnsen was not on the list.

These were the President’s first recess appointments of his term, and if not confirmed by the Senate, they will be eligible to serve until the end of 2011.  The White House release and full list of recess appointments is here.

Recess appointments have been used with some regularity by prior Presidents in response to Senate confirmation delays.  The Washington Post “Federal Eye” blog reports:

The White House said that 217 of Obama’s nominees still await Senate confirmation, including 34 nominees that have waited for more than six months. By comparison George W. Bush also had made 15 recess appointments by this point in his presidency, the White House said. Bush made at least 171 recess appointments during his presidency while Bill Clinton made 139, according to the Congressional Research Service.

During part of the Bush Administration, Senate Majority Leader Harry Reid would avoid taking full recesses in the Senate to prevent recess appointments from being made.  Not anymore. Back then, Senator Reid maintained that recess appointments were “an end run around the Constitution,” even though the Constitution provides for recess appointments.

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce  among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power?  I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759-60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.

In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.

Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed. Construing the tax power as less than infinite–as not encompassing the power to tax bedtimes or the decision not purchase a product–is strongly supported by the Ninth Amendment. This is so whether one agrees with Randy Barnett’s view of the Ninth Amendment (as an enforceable guarantee of natural rights) or with Kurt Lash’s (as a rule that enumerated powers should be narrowly construed so as not to violate natural rights, including the right of self-government in the states).

Finally, as Jack Balkin has ably argued, “Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility – but not the certainty of its redemption in history.”

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

p.s. PENNumbra had a good debate on the topic last fall, featuring Jack Balkin vs. Lee Casey & David Rivkin.

On Friday, Rep. Bart Stupak (D-MI) announced the U.S. Department of Transportation’s Federal Aviation Administration had awarded nearly three-quarters of a million dollars to three Michigan airports to fund maintenance and improvement projects.  Given the apparent consensus that the President’s Executive Order on abortion funding gave Rep. Stupak relatively little of what he sought on that issue, is it overly cynical to be suspicious of these grants and their timing?  (Hat tip: Instapundit)

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).

This week, the National Journal poll of political bloggers moves to a new spot on the NJ website, “The Hotline Blogometer.” Besides the weekly poll, the Blogometer contains a daily report on what leading liberal and conservative political bloggers are writing about the controversies of the moment. In this week’s poll, bloggers were asked “On a scale of 0 to 10, what’s the likelihood that Congress will pass health care reform?” Based on the information that was available in the earlier part of this week, the Left answered 7.8, while the Right said 5.6. Which is not terribly far apart.

I voted for 5, and wrote “In May 1994, President Clinton used the full force of his office to convince House Democrats to drive their majority off a cliff, by enacting a ban on so-called ‘assault weapons’ (ordinary firearms with cosmetically incorrect features). President Obama and House leadership seem determined to repeat a similar mistake, except on a much greater scale.”

Question 2 asked the Left “Is Tim Kaine an asset or a liability as DNC chairman?” The Right was asked about Michael Steele and the RNC. On both sides, only 31% voted for “asset.” The only writer who had anything good to say about Michael Steele was me: “Probably some of each. Still having trouble understanding that his job is to help the team, not to be the star.”

Finally, the bloggers were asked if Obama would be a one-term President. Thirty-one percent on the Left, and 71 percent on the Right thought so. Of course it’s far too early to predict with any confidence, but perhaps it would be accurate to say that his current chances for re-election are in the 30-70% range. He’s far from doomed, but not looking particularly solid right now either. I guessed the one-term would be the more likely result: ”He will have plenty of opportunities in 2011-2012 to change his current self-destructive course. But it seems more likely that he will double down on his failures and his policies, which alienate the majority of the American people.”

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.

Politico reports that quite a few constitutional experts, in addition to Stanford’s Michael McConnell and Yale’s Jack Balkin, believe the so-called “Slaughter Solution” (aka “Deem and Pass”) could present a thorny constitutional question.  McConnell thinks it’s clearly unconstitutional; Balkin believes its constitutionality depends on its final form.  To McConnell and Balkin, Politico adds GW’s Alan Morrison and Public Citizen’s Alison Zieve:

“If I were advising somebody,” on whether deem and pass would run into constitutional trouble, “I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let’s pretend.’ ‘Deems’ means it’s not true.”. . .

“You run the risk that it could be declared unconstitutional. … If both houses vote on the substance of everything, then I’m not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi. . . .

Alison Zieve, director of litigation for Public Citizen, said, “I agree it doesn’t feel good. It seems inconsistent with the wording of the relevant constitutional provision. And then the question is whether the constitution gives them flexibility to adopt procedures to streamline or guide their business.”

Josh Gerstein’s Politco blog also notes that former Georgetown University law professor Marty Lederman has also been critical of prior efforts by House leaders to claim that the House and Senate passed the same statutory text when this had not, in fact, occurred.  Lederman is now a deputy in the Justice Department’s Office of Legal Counsel.   Based on Lederman’s analysis (see also here) it might be relevant if one could show the House leadership is acting in bad faith.

What’s the problem?  The text of Article I would seem to require a vote on the bill, and language in two Supreme Court opinions, INS v. Chadha and Clinton v. New York (the line-item veto case), would seem to interpret the bicameralism requirement in a fairly rigid and formalistic way.  This is the legal authority that gives even many  supporters of health care reform great pause.

But even if “deem and pass” is unconstitutional, that does not mean federal courts would so rule.  Another set of court precedents suggests that the question whether a bill in fact passed either House in accordance with that House’s rules is not justiciable.  As I noted in this post concerning legal challenges to the Deficit Control Act of 2005, the 1892 decision of Marshall Field & Co. v. Clark would seem to foreclose such a challenge.  In that case, the Supreme Court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.’”  Pursuant to this decision, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected a constitutional challenge to the 2005 Deficit Reduction Act. (A challenge, interestingly enough supported by Reps. Pelosi and Slaughter, among others, and opposed by the Bush Administration.)   This decision, and the Field v. Clark precedent would seem to create a problem for those who would like to challenge the constitutionality of any health care bill enacted through resort to the “Slaughter Solution.”  Of course, just because Congress could get away with it, does not mean it’s constitutional.

Can the House vote to adopt a rule which “deems” that a particular bill has been passed, even if that particular bill has not been passed? If so, are there any limits to the adoption of House rules which eliminate voting on bills? For example, could the House at the start of a session adopt a rule which states that there will be no voting by individual members, and that the House during the next two years will “deem” to have been passed whatever the Speaker of the House deems to have been passed? Is the question justiciable?

I don’t have a fully-formed opinion on these topics, and would welcome well-informed comments. Please stick to this issue, not to the merits of the legislation. The most relevant constitutional text would seem to be the following:

Article I, sect. 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I, sect. 5: Each House may determine the Rules of its Proceedings, . . .

Article I, sect. 7: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill

Also seemingly relevant would be INS v. Chada (1983), which rejected the position that a section 7 cases present a non-justiciable political question. The practice at issue in Chada, the one-house veto, was far more established by practice and by statute than is the Slaughter Solution of “deeming” an unenacted bill to have been enacted.

H.L. Mencken once observed that for every human problem, there is a solution that is “neat, plausible, and wrong.”   Exhibit A is the “Health Insurance Industry Fair Competition Act” – also known as H.R. 4626.  This bill seeks to repeal the antitrust exemption granted to health insurance companies by the McCarran-Ferguson Act.  The Obama Administration has thrown its support behind the proposal, and it passed the House of Representatives two days ago by an overwhelming bipartisan vote of  406-19.

The stated purpose of repeal is to increase competition in the health insurance market and thereby lower premiums.  Thus, Senate Majority Leader Harry Reid argued that “there is no reason why insurance companies should be allowed to form monopolies and dictate health choices.”  Rep. Betty McCollum asserts that repeal “will save every family in America who purchases health insurance at least 10 percent” on their premiums.  Representative Tom Perriello, one of the sponsors of H.R. 4626 stated at a press conference last week that “Americans deserve to know who stands with them against the price gouging of middle-class and working-class folks.” In October, 2009, Senator Charles Schumer stated that the exemption “is one of the worst accidents of American history, [and] it deserves a lot of the blame for the huge rise in premiums that has made health insurance so unaffordable.”

Professor (and former Secretary of Labor) Robert Reich argues in the New York Times that exemption is “why a handful of insurers have become so dominant in their markets that their customers simply have nowhere else to go.”  At the health reform summit yesterday, Speaker Nancy Pelosi stated that the overwhelming vote to repeal the exemption was “a very strong message that, yes, the insurance companies need to be reined in.”

Some background is helpful in evaluating the merits of these claims, and assessing the likely impact of repeal, assuming the Senate follows the House’s lead.  In 1944, the Supreme Court overturned prior case law and held that the sale of insurance was interstate commerce.  This decision, which was clearly correct, meant that the federal antitrust laws suddenly applied to insurance.  Congress responded with the McCarran-Ferguson Act, which created a limited exemption from federal antitrust law for the “business of insurance.”  To qualify for the exemption, each state had to engage in oversight of its insurance market.  States responded by creating insurance commissioners and regulating insurer conduct and mergers pursuant to state insurance law.

The logic of the exemption was that prior to 1944, insurance had been regulated by the states anyway.  No one felt any compelling need for intrusion by the federal government into this area.  In addition, antitrust law (at least the version of antitrust law that prevailed in 1944) cast serious doubt on the legality of insurers sharing information on claims experience. Since insurers can more accurately price risk if they can share information on their actuarial experience, the potential chilling effect of antitrust on such sharing was thought to be a big problem.  This is less of a problem for a big insurer, which has enough information to do its own pricing, but it is potentially quite significant for a small or mid-size insurer.

In response, McCarran-Ferguson created a safety zone for insurers to share information without worrying about private antitrust exposure — while still subjecting them to regulatory oversight at the state level, and to federal antitrust scrutiny for matters that don’t involve “the business of insurance.” This means, for example, that states can directly regulate premiums, other terms of coverage, and mergers.  Contrary to Senator Reid’s claim, the federal government also scrutinizes mergers for anticompetitive consequences and it has brought several challenges, including a 2008 case in Las Vegas (in Senator Reid’s home state of Nevada) that resulted in structural relief (divestiture).

What should we expect if the exemption is repealed?  With states already regulating insurer conduct and mergers, and the feds able to challenge mergers, adding federal antitrust exposure for “the business of insurance” doesn’t seem likely to result in much change – and what change there will be may not be for the better.  Thus, the Congressional Research Service recently noted the possibility that removal of the exemption could actually reduce competition, if enough small and mid-size insurers decide they can’t enter (or remain in) the market without the ability to share information, so they either exit or consolidate.

To be sure, it isn’t clear how many health insurers are in the “sweet spot” of “too small to have enough information to do risk rating themselves, but big enough to want to enter or stay in the market as long as they can share information.”  This will also be a bigger problem if Congress also decides to repeal the exemption for malpractice and property and casualty insurers, which are much more reliant on information sharing than health insurers are; for the moment, Congress is focusing on health insurers.

What about the promises of lower prices and increased competition?  The Congressional Budget Office concluded that repeal “would have no significant effects on either the federal budget or the premiums that private insurers charged for health insurance.”  Professor Scott Harrington of the University of Pennsylvania says, “This is just barking up the wrong tree…It might sound good, but I can think of very few things …that would be less consequential for consumers of health insurance.”  Professor Austin Frakt of Boston University notes, “Repeal of the exemption is popular, but like a lot of things done in anger, it isn’t particularly wise and won’t be very effective.”  Dr. Paul Ginsburg, of the Center for Studying Health System Change asserts that “I don’t think this will have much effect. This is strictly political posturing.”

Repeal seems likely to result in increased private litigation, at least some of which will be the equivalent of “strike suits.”  It will cost money to defend those cases – although how much remains to be seen.  If the exemption is repealed, insurers will also have to deal with an additional (federal) regulator.  This will result in increased expenditures, including lobbying and campaign contributions to Congressmen serving on committees with oversight over the federal regulator.  At least some of these expenditures will be “new” expenditures that were not previously being spent at the state level.

To be clear, the exemption doesn’t make much sense, as a matter of antitrust law.  Both the ABA and the Antitrust Modernization Commission have recommended repeal. I teach insurance law, and spent three years at the FTC, so I’m on both sides simultaneously – and I come down on the side of repeal.  But there just isn’t much evidence that doing so will increase competition in the market for health insurance, or reduce health insurance premiums.

Why then is there such enthusiasm for repealing the exemption?  The bill serves three distinct political (as opposed to policy) purposes.

First, the legislation is payback for an October 2009 report by the health-insurance lobby finding that the Democrats’ legislation would result in higher premiums.  A bill to repeal the exemption has been a hardy Washington perennial, but it only got serious traction after the report was released.  Consider a contemporaneous press release by Sen. Charles Schumer (D-NY) that announced, “Two days after health insurance lobby tried to sucker-punch health care reform effort…Schumer [says] revoke health insurance industry’s antitrust exemption.”

Second, the bill satisfies the desire of Democrats to “do something” on health reform — and to be seen as doing something.  Voters are rationally ignorant of the details of the McCarran-Ferguson Act, and its impact.  Why not pick on an unpopular group (insurance companies)?  Pharmaceutical companies were cast as the black hats during the Clinton health reform initiative.  Now it’s insurers turn.

Finally, the effort serves purely partisan objectives.  The Nation framed the proposal as a “litmus test” on whether Congress serves ordinary voters or powerful insurance companies. Congressional Democrats were clearly hoping that the Republicans would line up in favor of insurers, allowing them to be labeled as “a wholly owned subsidiary of the insurance industry,” in the words chosen by Representative Anthony Weiner on the floor of the House earlier this week.

To summarize, the Health Insurance Industry Fair Competition Act serves a variety of symbolic and political purposes.  But, it isn’t health reform, and it won’t have a material impact on the performance of the health insurance market, or on the serious problems that beset American health care.

Update: For those who are interested, this is an expanded version of a op-ed that appeared here.

Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu’s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:

Footnote 72 includes the following:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

The Politico reports:

Senate Majority Leader Harry Reid used to consider recess appointments “an end run around the Senate and the Constitution” — so much so that he kept the chamber open during breaks to prevent President George W. Bush from making any more of them.

But with a Democrat in the White House, and Republicans blocking executive branch nominees, Reid and his allies are starting to sing a different tune.

Reid said last week that he’s “tried hard” to avoid the need for President Barack Obama to make recess appointments, but he added: “What alternative do we have? . . .

While Obama has so far shied away from using recess appointments, the Constitution gives presidents the power to install appointees to vacant positions when the Senate is on a recess.

Such appointments last only until the beginning of a new session of the Senate, meaning any Obama recess appointment would hold their posts until next year — when Republicans are likely to have more seats in the chamber.

Bush made 179 recess appointments, and President Bill Clinton made 139, according to the nonpartisan Congressional Research ServiceSen.

Reid’s change of heart appears motivated, in part, by Senator Richard Shelby’s blanket hold on some 70 pending nominees.  Yet as Politico also reports, Sen. Reid imposed a blanket hold of his own in 2004 to get a federal appointment one of his advisors.

The Constitution authorizes recess appointments, even if modern use of the power is more expansive than the Constitution may have contemplated.  As I see it, recess appointments are an appropriate response to the Senate’s persistent refusal to confirm nominees with strong majority support, particularly if that support is bipartisan.  As a practical matter, recess appointments risk political backlash, particularly if they are overused.  In this regard it is notable that President Bush made only four recess appointments after Democrats retook the Senate in 2006, after having made 175 during his first six years.

UPDATE: The NYT reports Senator Shelby has lifted his holds on all but three nominees whose positions are related to the Defense projects he’s seeking to advance.

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

I am sure that I am not alone in noticing that the White House webpage hasn’t had a new constitutional signing statement posted since last summer.

This article by the NY Times’ Charlie Savage Friday sheds new light on why that is. According to the article, the Administration has a new policy on signing statements that it has adopted in the wake of last summer’s kerfuffle with Congress. In short, it will still take the position that certain provisions of newly enacted laws would unconstitutionally infringe on Executive Branch prerogatives (or would otherwise be unconstitutional). It just won’t say so in signing statements.

I can’t imagine that those in Congress who objected to this practice will consider this an improvement. Although the Bush Administration was openly mocked in some quarters for saying its practice promoted transparency, it may be regarded as better than the alternative. A few excerpts from the article:

Legal scholars said the administration’s new approach, which avoids repeating claims of executive power that the White House has previously voiced, could avoid setting off fights with lawmakers. But the approach will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush’s record.

* * * * *

But Mr. Obama has not issued a signing statement since last summer, when one claim set off a bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.

Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.

It sounds like the Administration will still let Congress know its objections (at least on occasion) in official (but nonpublic, or at least not widely distributed) statements known as Statements of Administration Policy. It may also set them forth in OLC opinions, which given the current Administration’s position on publication of such opinions, should be published fairly promptly. But given the volume of laws Congress makes, and the volume of problematic provisions in such laws (there are, for example, provisions that are problematic under INS v Chadha,  462 U.S. 919 (1983), in a surprising number of laws), I don’t think it’s feasible to have a full-blown OLC opinion for every law that contains provisions that are problematic under traditional Executive Branch positions. Thus, I think that the new policy may be less transparent than the old one.

I don’t think that the policy will make a huge practical difference, however. In my experience, most constitutional signing statements are made simply to “lay down a marker” and let Congress know the government’s position: In practice, it’s been my experience that such provisions are overwhelmingly implemented as written. When they are not, there is already a provision in place, 28 USC 530D, that requires reporting to Congress decisions not to enforce provisions in a statute.

Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate.  Specifically, he quoted the following passage:

In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

This quote was part of a longer speech in which Senator Baucus sought to show that many “prominent legal scholars” believe that “Congress has the constitutional authority to impose a requirement on individuals to maintain health coverage.”

While Senator Baucus quoted me correctly, I think he left out some important context and, as a consequence, may have created a mistaken impression of my views.

My August 22 post was a comment on an op-ed by David Rivkin and Lee Casey.  In response to their claim that an individual mandate was unconstitutional under current law, I argued:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme.

What I did not mention in that post, but have written repeatedly elsewhere, is that I believe that some of these “recent commerce clause cases,” most notably Gonzales v. Raich, were wrongly decided, and adopted an excessively expansive view of federal power under the Commerce and Necessary & Proper Clauses (see, e.g., here and here). Under these cases, I believe that it is difficult to argue that an individual mandate exceeds congressional authority. Under a more constrained reading of the Commerce Clause, however, I don’t think the argument is so difficult.

In my view, the biggest problem with the argument for the constitutionality of an individual mandate is that it is an argument without limit.  Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X.  If this is true for health care, there is no reason why it is not also true for Christmas trees, savings bonds, or GM cars.  In short, Congress could mandate universal participation in any economic activity and mandate the purchase of any product or service it chooses, so long as it does so as part of a broader regulatory scheme.

While some of the language in the majority opinion and Justice Scalia’s concurrence in Raich implies Congress has such power, this approach would create a commerce power without limit, an outcome which both Lopez and Morrison said was incompatible with the concept of enumerated powers. so to embrace this view, as I argued in this article, is to eviscerate their holdings.  As I believe Lopez and Morrison are more consistent with the text of the Commerce Clause and the principles of enumerated powers, I would prefer that the Supreme Court uphold these decisions and overturn or severely limit Gonzales v. Raich, Wickard v. Filburn, and a few others.

So, while Senator Baucus correctly quoted my belief that an individual mandate is likely constitutional under existing precedent, he omitted my belief that existing precedent is unduly expansive.  So while I would expect a lower court judge to uphold the mandate as against a constitutional challenge, I do not think the Supreme Court is required to do so.  Indeed, I believe the Court could distinguish Raich, and hold the mandate out of bounds.  (For an argument why courts should, and might, do so, see here.)

I should also note that I do not believe that members of Congress should base their decisions on whether to support proposed legislation based upon their prediction of how federal courts are likely to rule.  Every member of Congress takes an oath to uphold the Constitution.  I am old fashioned enough to believe this oath obligates each and every member of Congress to consider the constitutionality of proposed legislation for themselves, and refuse to vote in favor of legislation they conclude is out-of-bounds, even if they think the legislation would be a good idea. So Senator Baucus should spend less time quoting the assessment of folks like me about what current precedent means for proposed legislation, and more time explaining why he finds this and other legislative proposals to be consistent with the text, structure, and history of the Constitution he took an oath to uphold.

The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. “Cornhusker kickback” is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).

Over at NRO’s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill’s reforms, there may not have been enough votes for cloture on the bill.

while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen and sworn” (60 senators when all seats are occupied), cloture on any proposed change to the Senate’s standing rules takes “two-thirds of the Senators present and voting,” or 67 senators if all 100 are on the floor.  (Both of these requirements are in Senate Rule XXII.)  Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present.  But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate’s standing rules.  Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill—because it contains at least one change to the Senate’s standing rules.

This creates an interesting wrinkle.  Under Senate Rule XXII, “a measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting” to end debate.  Yet there were only 60 votes for cloture on the Reid bill.  So unless there is some basis for giving special treatment to rules changes that are buried into other legislation, it would seem that either a) cloture was not achieved, or b) the entrenchment provisions do not actually alter the Senate rules.