March 16, 2010

A Liberal Betrayal of America

Apparently unable to muster the votes to actually pass the Senate healthcare reform bill (and Speaker Pelosi and President Obama have reason to be not so confident), so that it can then be amended by way of reconciliation and thus made more palatable to progressives, the House of Representatives is going to entertain something called the "Slaughter Rule," so named after the chair of the House Rules Committee, Louise Slaughter of New York.

If you're not a deep government junkie, you may think that the House Rules Committee is the ultimately most boringest place for a legislator to be.  You might think that a member of the House of Representatives would want to be on a sexy committee like Defense or Intelligence or Foreign Relations.  And to be sure, those committees hear testimony on, and entertain legislation on, sexy stuff like spies and weapons systems and things like that.  But the Rules Committee is undoubtedly the most powerful of all the committees in the House of Representatives, making its chair almost as powerful within that body as the Speaker herself.

And she's proving it.  Her idea for getting health care reform out of the Senate and in to reconciliation is to implement a new sort of rule for the House to consider a pending bill under -- to "deem" the Senate bill passed, and then immediately amend it and send it back to the Senate for its reconciliation. 

See, the Senate passed a healthcare reform bill already, but it contains some red flags like no funding for abortions, so the somewhat more liberal House membership doesn't like it.  It's also too modest in its scope of healthcare reform for President Obama's taste.  Now, normally, we'd be seeing the House pass its own version of the bill, then the House and the Senate sending committees to work together to reconcile the competing versions of the bills and produce a unified version of the law for both houses to pass and send to the President.  At least, that's how I learned it:

Now, Congresswoman Slaughter insists that her idea is Constitutional.  But it seems to me that she is simply wrong. Let's go to the Constitution and see:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
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.
So, that means that the House and the Senate must both pass the same bill into law, and then it goes to the President, who then either signs it, allows it to become law without his signature, or vetoes it.  Until and unless those things happen, it is not law.

Slaughter's rule would allow the House to "deem" the Senate bill as having been passed, and then immediately amend it again -- meaning that the bill the House passes won't be the same bill the Senate passed.  Which means the Senate's bill will have been rejected by the House, and the Senate will then have to consider the House bill.  Democrats are loath to do that because with the Republicans having gained a hunkilicious seat in the Senate, they could then filibuster and prevent any health care proposal from passing.  Unless, of course, a Republican or two were to be persuaded to break ranks with an appropriate inducement of pork or a concession watering down the impact of the House's bill, which would then need to be re-reconciled with the House where, as I noted above, things are dicey enough for the health care reformers as it is.

Or, if you want to say that the House is really passing the Senate bill and the Slaughter rule simply jump-starts the process of amending it, great.  But the Senate bill then still isn't law because the now-passed Senate bill would not be conveyed to the President for signature, veto, or enactment by inactivity -- it would immediately be sent to a reconciliation committee and the law that was passed by both Houses would not make it to the President as required by Article I, Section 7.

As Stanford Law Professor (and former Federal Judge) Michael McConnell points out, the Slaughter rule "may be clever, but it is not Constitutional."  No, the Democrats will need to do the hard work of actually politicking across party aisles now, and moderating the impact of their reform, such that they can actually attract a Republican vote or two in the Senate and enough votes to ensure passage in the House, which means that progressives aren't going to get the bill they want.  Politics is the art of the possible.  A bill passed by the Slaughter rule will be doomed to invalidation by the courts.


Dan said...

Perhaps I am understanding the so-called Slaughter Solution. It is my understanding that, by passing the reconciliation bill, the original bill from the Senate will have been "deemed" to have passed. The reconciliation bill, as passed by the House, would then be sent to the Senate, where it could pass with a simple majority. Thus, in my understanding, both the House and the Senate would end up voting on the text of the final bill that would end up becoming law. This strikes me as being in accordance with the Constitution.

I am not anything like an expert in parliamentary procedure or constitutional law, so please correct me if I've gotten this wrong.

Dan said...

Oops. "Misunderstanding," that is.

Burt Likko said...

The initial problem may seem a little formalistic -- "deeming" a bill to have been passed is not the same thing as actually passing it. The words on the pages of the bill the House passes are going to be different than the words on the pages of the bill that the Senate already passed, in the hopes that the Senate will then pass the same words on the new House bill.

By using the reconciliation process (which on its own terms is limited in scope only to the budget, not to other kinds of legislation like the health care reform bill), the vote on passing the House bill in the Senate falls under special procedural rules that prohibit filibusters. This is why the Republicans are so upset about it.

My point is different. I bring up the President's involvement because it seems to me that if the House is "deemed" to have passed a bill, then it has actually passed that bill. So that means that there would be nothing to reconcile, the next step is to see what the President does with the bill Congress actually passed. The Slaughter rule would have Congress actually pass a bill (the Senate version), and then immediately yank it out of the Constitutional process of Presidential consideration, and then immediately amend it through a reconciliation process -- a process which under the Senate's rules is limited in scope to budget and taxation bills only.

The alterantive view, which most people are taking, is that the Slaughter Rule allows the House to simultaneously pass and then amend the Senate bill, which means that the House is really passing a non-identical bill, resulting in there being no law to present to the President because both of the bills would fail under the rules.

This likely violates the Constitution, either way -- either Congress passes non-identical bills but calls the result a "law," or it is usurping the President's veto power.

But on further consideration, I'm coming around to the idea that the courts aren't going to get involved in this issue. My guess is that the courts are going to call this a "political question" and not make any ruling one way or the other, which means that effectively, the Democrats can have their way if they want to, and the Republicans get to try to use it as an issue at the ballot box in November.

Dan said...

I'm getting a little lost in the ongoing horserace coverage of this bill. Is the vote that seems immiment for the Senate version of the bill, or the reconciliation bill a la Slaughter?