March 21, 2010

Healthcare Procedure

The Washington Post is reporting that House leaders have decided to not use the "deem and pass" rule suggested by House Rules Chair Louise Slaughter. Also, I've come across indications that Republicans have used the Slaughter Rule, or a similar procedure, when they controlled the House, but even conceding that point arguendo, this does nothing to rescue the fundamental problem I have with the proposed procedure. What they're apparently planning to do instead is this:
Rep. Chris Van Hollen (D-Md.) said Saturday that the House would take three votes Sunday: first, on a resolution that will set the terms of debate; second, on a package of amendments to the Senate bill that have been demanded by House members; and third, on the Senate bill itself.

Van Hollen, who has been working on the issue with House Speaker Nancy Pelosi (D-Calif.), said House leaders concluded that that order — approving the amendments before approving the Senate bill — makes clear that the House intends to modify the Senate bill and not approve the Senate bill itself.
Now, Commenter Dan from Bleakonomy raised a valid question a few days ago about the procedure -- if the end result of these procedural and parliamentary gyrations  is that both houses of Congress approve, by a majority vote, the same bill, who cares how they got there?  At minimum, isn't it up to Congress itself and no other judge to determine whether Congress has done this in the right way.  This argument got me thinking about the "political question" doctrine, by which the federal judiciary will abstain from deciding questions that properly are allocated to other branches of government.  It got me thinking that whether "deem and pass" by itself is good procedure or even Constitutional is probably not a worthwhile question since the President will likely sign the bill regardless of its procedural pedigree and the courts aren't going to get into the question of analyzing Congress' internal procedures.

Of course, we're pretty much guaranteed a detailed Constitutional analysis of all these procedural questions if the bill passes.  But after some thought and consideration of Dan's comment, my thought is that what the courts will actually look at will probably be relatively minimal.

It's only the Constitutional issue -- the one the House and Senate can't get around because it's in the explicit text of the Constitution -- that anyone other than Congress itself can analyze here.  That rule is this:  Either both Houses of Congress have passed the same bill, or they have not.  If they have not, then they have not yet passed any bill.  If they have, then that is the bill that goes to the President.  The transmittal of the bill to the President is a ministerial act, one requiring no discretion or political activity by Congress.

If the House amends the Senate bill and then passes it, it has passed a different bill than the Senate, and Congress as a whole has not (yet) passed the bill to make it eligible for transmittal to the President.  The next step in the process in that case would be for the amended bill to go back to the Senate, which would then either say "yea" or "nay" to the House amendments.

If the House does what Congressman Van Hollen suggests, then what will happen is the first alternative in this scenario -- the House will have passed a different bill, and the Senate has to vote on it.

The only other alternative to rescue this is that these House amendments can be considered a separate bill to amend a law that has been reported to the President.  There is no Constitutional requirement that the House consider a bill in any of a number of committees and pass it out of the Committee of the Whole or any of the other usual procedural niceties -- it can vote directly on a bill at any time the Speaker agendizes it.  It seems odd to vote to amend a law that has not yet been passed, but I think it's probably within the power of the House to say "If Bill X becomes law, we would immediately amend it with Bill Y," and I suppose that they can do that even before Bill X is even transmitted to or signed by the President -- although it's questionable as I understand the rules, we're back to a political question there.

So if Van Hollen's plan goes through, then Bill X -- the Senate bill -- will be passed out of Congress and transmitted to the President.  But then Bill Y -- the House amendments -- need to be approved by the Senate.  If the Senate approves Bill Y, then Bill Y will go to the President also.  If the Senate can act quickly enough, then both Bills X and Y could in theory wind up on the President's desk at the same time and be signed together.  But either way, the Senate can't be cut out of the equation because both houses have to pass identical language before a bill becomes a law.

This would mean the House would be passing the Senate bill, something which is apparently unpalatable to some of the House's more progressive members because of restrictions on abortion rights and other kinds of symbolic issues that had to be conceded to obtain Senate passage.

One way or another, the House amendments need the Senate's approval before they, too can become law.  The Constitution requires that.  Sadly for progressives and happily for conservatives, that means the House amendments will have to make it through the Senate's fearsome filibuster process before they can get an up-or-down vote en bloc.

To all my Readers on both the left and the right, please note that I offer this opinion without offering any normative opinion whatsoever about the policy merits of either the Senate bill or the House amendments.

This, of course, will not satisfy those who want to pigeonhole me as "pro-healthcare reform" or "anti-healthcare reform."  So as to the merits of the bill, as best I can figure, quality and availability of health care will not really be impacted all that much for the typical American health care consumer, although some people who otherwise would not have got any health care at all will have minimal access.  They want to know whether I am happy about all this procedural stuff -- despite my insistence that good procedure is as important as good substance, that it's not important only that government do something good but also that it do it in a legitimate way.

So the question is not whether this is going to make a huge difference in Americans' lives -- seems to me it will not -- it is a question of whether it is a better or more cost-efficient way of doing what we're doing already.  So my policy concern (big surprise to all you Loyal Readers) is the impact it would have on the budget.  Although the CBO has said that over the next ten years, it would reduce deficits a very moderate amount, which sounds good, there are also serious analyses from people who are qualified to opine on such matters that conform to common sense better and indicate that no, the bill would increase the deficit.

I have great difficulty imaging how a bill that adds nearly a trillion dollars to the federal budget will, in reality, wind up reducing the deficit.  So you may classify me as "anti-healthcare reform" for that reason.

As of the time I'm writing this morning, it's not even clear whether the leadership has the 216 votes necessary to pass any of this, but it seems to me that they wouldn't be going for it, especially on a Sunday, if they weren't pretty sure they could pull it off.  It'll be close, either way.  The real question, though, is whether the next step will be sending something to the President or whether it gets kicked back to the Senate.

UPDATED:  It appears that indeed, the intention is to send the amended bill, called the "reconciliation," to the Senate. That's going all-in for the House, and bypassing the filibuster under the reconciliation rules.  Since I've concluded that both the House and the Senate can break their own rules when they wish and only have to answer to themselves and the voters for doing it, that much seems okay.  So if the "reconciliation" fails in the Senate, that will mean that no law will be presented to the President.  If that's how it plays out, the Constitution would be satisfied.


trumwill said...

Hmmm. My understanding of the situation was that it was definitely going to go back to the Senate, but since they tagged it "reconciliation" they don't have to worry about the filibuster. I thought that was kind of the point of this thing?

This seems to me as an abuse of the reconciliation process (to reconcile a law not yet approved), but that's a parliamentary rather than a Constitutional question.

Dan said...

1) Thanks for the shout-out.

2) This has become so terribly byzantine that I'm having an awful lot of trouble following the precise path the final legislation will have taken. It does look to me that, when all is said and done, both the House and the Senate will have voted on the same bill, which is the one that will be sent to the President. How it came to those votes seems largely a matter of procedural kabuki, which does not bother me in particular.

I am cautiously optimistic about the bill itself, though I cannot claim to understand health care policy well enough to do so with any real authority.

香蕉哥哥 said...
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Transplanted Lawyer said...

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The Fourth Branch said...

I'm not sure you captured exactly what was proposed or how it has since changed. Democrats didn't ultimately use "deem and pass." Instead, they just passed the bill as they would any normal bill. Allow me to offer my understanding of deem and pass (moot now, but still interesting nonetheless, at least to me).

The Senate, as you note, passed a bill with 60 votes, sufficient to invoke cloture and end the Republican filibuster and secure passage of a comprehensive reform bill. That bill had to then be enacted in exactly the same form by the House. The trouble being, of course, the House didn't want the exact same bill- they wanted to change it. Unfortunately for them, while the House could amend the bill, the Senate couldn't have overcome a filibuster to pass an amended bill.

So, the House and Senate decided the Senate bill would be passed, and budget-related changes would then be made to the Senate bill via "reconciliation," which is a Senate procedure that is not subject to a filibuster (so its passage only requires 51 votes, or 50 with the VP).

For political reasons, the House still didn't want to vote only on the Senate bill. They thought Republicans would run ads saying the House members voted FOR the "Cornhusker kickback," for example. They instead preferred a process which would permit them to pass the Senate bill "indirectly," at the exact same time they passed an amendment to that bill which would then have to be approved by the Senate (the underlying Senate bill would be law, however).

The "indirect" passage was to be effectuated by inserting "self executing" language in the House reconciliation bill on which the House would vote and adopt. The self-executing language (inserted by the Rules Committee in the House) would have said, effectively, that the act of approving the House reconciliation bill shall be deemed a vote to pass the underlying Senate bill as well, and effective immediately upon securing a majority vote for the reconciliation bill, the Senate bill, without amendment or alteration, shall be enacted into law.

The question then becomes whether the House can establish a rule in the Rules Committee that provides that self-executing language is sufficient to pass a bill into law. This is a constitutional question.

The Constitution expressly gives both houses of Congress the right to make their own rules. The judiciary has no right to overturn Congress' own internal rules unless there is a clear conflict with the Constitution and the rule (very hard for that to happen). In an old Supreme Court case (Field), the Court ruled that the Congressional Record, and certifications by the leadership in the houses of Congress, were conclusive evidence of how Congress had acted on a bill. It is really hard to see how the courts would have found "deem and pass" unconstitutional given those parameters.

The rule itself established that the exact same text of the Senate bill was being enacted without any modification by the House, so that requirement is satisfied, and the requirement that all votes be recorded with "yeas and nays" would have been satisfied as well (the yeas and nays would have been the same as those who voted for and against the bill containing the self-executing language).

Perhaps an argument could be constructed that members of Congress didn't know that they were voting for the underlying Senate bill, but that is almost impossible to maintain with a straight face. The amendment couldn't amend nothing- it had to amend the Senate bill and that could only happen if the Senate bill was adopted. Furthermore, with all the attention to "deem and pass" it is unrealistic that any member of Congress wouldn't have realized what his/her specific vote would accomplish.

The Fourth Branch said...

Part II of post- was too long to do in one post:

Democrats decided the political gains of deem and pass were outweighed by its political costs, so they abandoned it and simply passed the Senate bill and then passed the reconciliation bill. The Senate now will take up the reconciliation bill (which will only need 51 votes to pass the Senate). It could be that the Senate bill is slightly modified from the version passed by the House (each provision must comply with reconciliation rules, and it is possible the Senate parliamentarian sustains a Republican objection that a certain provision doesn't comply and must be stricken or refashioned to comply). If it is modified, it will then go back to the House again for approval by majority vote (which shouldn't be a problem at this point- nobody who has already voted for the Senate bill will vote no if and when the modified reconciliation bill comes back).

In response to Trumwill, the Senate isn't taking up the reconciliation bill until after the Senate bill is signed into law on Tuesday (which is why the Senate will start debate on the reconciliation bill on Tuesday too). When reconciliation is passed, it will be amending a bill which is already law. Arguably, it isn't necessary that the Senate bill be law before the Senate takes up a vote on the reconciliation bill, but the Senate parliamentarian thinks the Senate bill must first become law (the House parliamentarian disagrees), which is why the House proceeded and the Senate is waiting. That aspect is rule driven, so the interpretation by both parliamentarians would be binding on the house they represent.

This is a very long and "into the weeds" post, but hopefully helpful.