tag:blogger.com,1999:blog-13589532.post8511011661798815849..comments2023-10-09T04:11:47.358-07:00Comments on Not A Potted Plant: Healthcare ProcedureBurt Likkohttp://www.blogger.com/profile/16060980744675990412noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-13589532.post-19200811599357231822010-03-22T22:19:13.259-07:002010-03-22T22:19:13.259-07:00Part II of post- was too long to do in one post:
...Part II of post- was too long to do in one post:<br /><br />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). <br /><br />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.<br /><br />This is a very long and "into the weeds" post, but hopefully helpful.The Fourth Branchhttps://www.blogger.com/profile/04384970966803143567noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-26259552794723813992010-03-22T22:18:45.122-07:002010-03-22T22:18:45.122-07:00I'm not sure you captured exactly what was pro...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).<br /><br />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.<br /><br />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). <br /><br />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).<br /><br />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. <br /><br />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.<br /><br />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.<br /><br />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). <br /><br />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 Branchhttps://www.blogger.com/profile/04384970966803143567noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-38761735977307576922010-03-22T06:33:28.207-07:002010-03-22T06:33:28.207-07:00Post deleted as spam.Post deleted as spam.Burt Likkohttps://www.blogger.com/profile/16060980744675990412noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-4035015381692421812010-03-21T23:18:45.469-07:002010-03-21T23:18:45.469-07:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-13589532.post-24038188463989655042010-03-21T14:06:43.619-07:002010-03-21T14:06:43.619-07:001) Thanks for the shout-out.
2) This has become...1) Thanks for the shout-out.<br /><br />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.<br /><br />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.Danhttps://www.blogger.com/profile/11213051268392108382noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-35236125401523335012010-03-21T10:52:39.138-07:002010-03-21T10:52:39.138-07:00Hmmm. My understanding of the situation was that i...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?<br /><br />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.Anonymousnoreply@blogger.com