The Slaughter Rule is Unconstitutional

[HarrySchell]

Link: Link: http://online.wsj.com/article/SB1000...LEFTTopOpinion

Please get to your Representative and urge them, even if they are already there, to vote against the use of the Slaughter Rule to pass the healthcare bill.

Whether the bill is a bad one or not, the precedent set effectively means Congress no longer needs a House vote on anything the Speaker likes enough to "deem" it passed in the House. While Pelosi wants this bill to pass bad enough to butcher the Constitution, what happens when the tides change?

The precedent will be there for any Speaker to use. Anytime, any subject, including an AWB or other gun control or civil rights law that the Speaker knows will not pass a voice vote. This cannot lead anywhere good. It nullifies the representation we have in House to determine law.

It is about healthcare now, but what about the future?

Time to start yelling!

[johnwilliamson062]

WSJ requires a subscription. We can not view the article.

[Jim March]

Well that, and his link is dead. He copied/pasted off of another forum, including the three dots in the middle.

He needs to go to the original forum, right-click on the link, do a "copy link location" or similar (each browser phrases it a bit differently) and then paste it here complete instead of broken.

[Mike Irwin]

Dead link and closer to strictly politics than I think we need right now, so I'm going to close this one right now.

If someone comes up with an active link, we'll reconsider this as it could have consequences to our civil liberties.

[HarrySchell]

For further consideration, and my apoloigies about the link. I think this has implications past the healthcare debate.

I would note that a similar tactic was fought successfully in court when used by Reps to raise the debt ceiling. Amicus briefs opposing this tactic were filed by Henry Waxman, Nancy Pelosi and Madame Slaughter. See: http://www.washingtonexaminer.com/op...-87773712.html or http://hotair.com/archives/2010/03/1...-rule-in-2005/. If the Hot Air link will not work, go to http://hotair.com, and scroll down to the article which references the first link. It is about the 5th item down as of a minute ago.

http://online.wsj.com/article/SB1000...877077328.html

By MICHAEL W. MCCONNELL
Democratic congressional leaders have floated a plan to enact health-care reform by a procedure dubbed "the Slaughter solution." It is named not for the political carnage that it might inflict on their members, but for Rep. Louise Slaughter (D., N.Y.), chair of the powerful House Rules Committee, who proposed it. Under her proposal, Democrats would pass a rule that deems the Senate's health-care bill to have passed the House, without the House actually voting on the bill. This would enable Congress to vote on legislation that fixes flaws in the Senate health-care bill without facing a Senate filibuster, and without requiring House members to vote in favor of a Senate bill that is now politically toxic.

The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.

Senate rules protect against majoritarian overreach by allowing a determined minority to filibuster most types of legislation. The majority needs 60 votes to override a filibuster. One exception, adopted in 1974, is legislation that makes adjustments to spending or revenues to reconcile current law to a budget resolution that has passed Congress. These are called reconciliation bills, and they require only a majority vote.

Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.

That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill's offensive features.

The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to "determine the Rules of its Proceedings." Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the "exact text" must be approved by one house; the other house must approve "precisely the same text."

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 "the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal." These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

Mr. McConnell is a professor and director of the Constitutional Law Center at Stanford Law School and senior fellow at the Hoover Institution. He formerly served as a judge on the United States Court of Appeals for the 10th Circuit.

Edit: Merged Threads now that the original is reopened. Note that Harry's article is different from the one I linked. Antipitas.

[Al Norris]

I'm going to reopen this thread for one very basic reason, outside of the political. This is civil rights related. Anytime the Government can mandate that you must pay for something or be fined/taxed, in order to just live, it becomes a matter of civil rights.

Perhaps not the link the OP first used, but read on.....

The so-called "Slaughter Rule" is unconstitutional. From Article I §7 Clause 2:

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

Deemed to have passed is not the same as (let alone equal to) shall have passed.

From Clinton v. City of New York, 524 U.S. 417 (1998):

The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law."

(All highlighting mine.) The Supreme Court has strictly outlined the proper Constitutional procedure each and every bill must go through, in order to become law.

What the rules committee is doing has never been done before. Not by Republicans; Not by Democrats, nor anyone else.

According to the latest WSJ article:

Yes, self-executing rules have been used in the past, but as the Congressional Research Service put it in a 2006 paper, "Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills." They've also been used for amendments such as to a 1998 bill that "would have permitted the CIA to offer employees an early-out retirement program"—but never before to elide a vote on the entire fundamental legislation.

All these people are doing is changing a rule, voting on it (the rule change) and allowing a single vote on an amendment to the Bill (which no one has even seen, let alone read) and then "deeming" the entire legislation to have been "passed." Blatantly ignoring the entire process the Constitution sets out.

Every single citizen should be very, very concerned about this type of activity by Nancy Pelosi and the House Rules Committee. This is an absolute blow to the democratic process and our form of representative government. It defeats the checks and balances of the Constitution. It defeats the accountability, to the people, that the Congress was meant to always have. In short, it meets the definition of a coup (kudos to Mike Irwin).

[alloy]

It does feel like coup d' etat of the legislature. Why not just let them all go and Pelosi can run the joint as she sees fit.

Glad Virginia has taken some steps against federal mandates, before I have to sell my Ford to buy a Chevy. Hopefully other states follow suit and this is bound up in the courts.

[Doc Intrepid]

I humbly beg forgiveness for the ignorance I am about to reveal.

How is it that Nancy Pelosi can execute an act that appears to be, on its face, unconstitutional then?

It would seem to be vulnerable to challenges along any of a number of lines.

Put differently, if she can do this, why can't she declare war without going through the constitutionally-mandated process, or any of a number of similar acts?

thanks,

Doc

[alloy]

How is it that Nancy Pelosi can execute an act that appears to be, on its face, unconstitutional then?

Obviously there is some backing within another branch or this would be shot down quickly now, or not signed later.

[gc70]

If the action taken to "pass" the bill in the House is unseemly enough, it may prompt a legal challenge in the courts; that might be the best potential outcome, assuming the courts still attempt to enforce the Constitution.

[alloy]

You may be right, but I would prefer they vote, especially since I know if they had the votes, they would have already voted. They don't have 'em and that's the alternative I prefer.

Peace out, I got nothing but contempt for this issue.

[Standing Wolf]

If the action taken to "pass" the bill in the House is unseemly enough, it may prompt a legal challenge in the courts; that might be the best potential outcome, assuming the courts still attempt to enforce the Constitution.

Sorry, but that looks like a heck of a sizeable assumption to me.

That said™, what's already been done in both the House of Representatives and Senate makes the word "unseemly" look downright good.

[gc70]

That said™, what's already been done in both the House of Representatives and Senate makes the word "unseemly" look downright good.

Emotionally, I would be inclined to use the word "treasonous," but I know the Constitution provides a different context for that term, so I will have to be satisfied with describing the proposed actions as "unseemly" and unconstitutional.

[Mike Irwin]

Unfortunately, this nifty little piece of legislative boondoggling has been employed many times in the past, and by both parties.

As far as I can determine, it has never been challenged in court.

Ergo, the old "It's Constitutional until Dianah Ross and the Supremes say it isn't" attitude.

http://www.rules.house.gov/Archives/98-710.pdf

[Bartholomew Roberts]

From the Volokh Conspiracy, Jack Balkin of Yale argues there is a way in which the "Slaughter Rule" could pass constitutional muster:

Despite Judge McConnell’s concerns, which are textually well founded, there is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill.

However, I don't really see the point of this rule to begin with. It will not provide any political cover for the people who vote for it. At best, it seems to be a measure by Speaker Pelosi to prevent getting shaken down for more graft on the second vote.

[ADB]

How is it that Nancy Pelosi can execute an act that appears to be, on its face, unconstitutional then?

Because it's not. The Congress gets to define it's own parliamentary rules on how legislation is to be handled, without those rules needing to be backed by the constitution. That's why, for instance, the Senate has the capability to prevent a majority vote via the filibuster, when no such rule exists in the constitution. That doesn't mean that the filibuster is unconstitutional, it just means each chamber has it's own rules and proceedures.

All these people are doing is changing a rule, voting on it (the rule change) and allowing a single vote on an amendment to the Bill (which no one has even seen, let alone read) and then "deeming" the entire legislation to have been "passed." Blatantly ignoring the entire process the Constitution sets out.

Not the case. "Deem and pass" basically means, in this case, that the House says "Okay, we approve X bill conditionally on the grounds that Y bill is also passed." In this case, Y bill is amending some of the provisions of the Senate bill that the House couldn't stomach. But X bill is still the same, and everything has still been or will have been read by anyone who cares to.

The only reason that they're doing it this way is because there's provisions in the Senate bill that the House doesn't want to pass without an absolute guarantee that the Senate will pass something to fix those provisions. "Deem and pass" allows them to conditionally approve the bill, subject to the Senate giving them what they want.

If you want to do something secretively, generally the best way to do that is not to announce your plans on CSPAN.

[alloy]

A simple note(which you can edit or add to) to go automatically to YOUR rep and also a note to the assorted democrat reps who may still be undecided.
Latest count puts them around 205 or 206 if they decide to actually take a vote.
Taken from William Bennett's website, it will generate one email to you but no spam beyond that.

http://www.capitolconnect.com/freeou...w/default.aspx

[BlueTrain]

You would probably all be for it if the speaker of the house were a Republican.

[publius42]

Originally Posted by Bartholemew Roberts

However, I don't really see the point of this rule to begin with. It will not provide any political cover for the people who vote for it.

The Hill

The forthcoming reconciliation bill will be based on a set of proposals put forth by Obama earlier this month to make changes to the Senate-passed bill to make it more palatable to House Democrats. It would eliminate special Medicaid funding for Nebraska, beef up tax credits for health insurance and scale back an excise tax on high-cost insurance plans.

“Everybody knows what’s in the bill,” Slaughter said.

But Stupak is alleging that Democratic leaders are offering lawmakers the opportunity to secure language (=$$$) in the reconciliation fix in exchange for their votes.

In an unusual development, a deputy campaign manager for Obama’s 2008 presidential bid said Tuesday that he is weighing a primary against Rep. Stephanie Herseth Sandlin (D-S.D.).

Looks like they're redistributing the Cornhusker Kickback, and offering to eliminate anyone who doesn't want a piece of that pie.

[vranasaurus]

Article I, Section 5, Clause 3:

Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.

The original legislation and the amendment are two separate questions. That being the case the yeas and nays on each should be recorded in the journal if 87 congressmen (Asumming all 435 are present) request it.

[Mike Irwin]

"You would probably all be for it if the speaker of the house were a Republican."

As a Reaganite Republican, no, I would NOT be for it.

Not in this case.

As far as I can tell, this is, by far, the largest, most expensive, and widest reaching bill for which this procedure has ever been proposed. It has the potentially to fundamentally alter the way in which Americans deal with their healthcare and their doctors (which is the entire point).

New studies coming out are saying that this won't result in a reduction of premiums for Americans; the prediction is that they will continue to rise for most Americans, and possibly significantly, before leveling off. And that's only IF the cost containment proposals in the bill work. http://news.yahoo.com/s/ap/20100317/...aul_fact_check

A bill with such a massive effect should never be allowed to pass through on a procedural move when there are so many questions and so much resistance to it.

[hogdogs]

You would probably all be for it if the speaker of the house were a Republican.

If it were regarding Socialist Health care, a precursor to additional SOCIALIST take over of our government, I would be even more freaked out!

I expect this from a party that has added the word "progressive" to their group, warning us of their SOCIALIST intents!
Brent

[Mike Irwin]

OK, folks, talking about the PROCEDURAL move and what that might mean to future rule of law and the conduct of government is fine.

Talking about it as a move towards socialist government is falling into partisan politics, which is NOT permitted and is a sure way of getting this thread closed in a heartbeat.

Understand?

[hogdogs]

Mike, yes I sure do understand! But I cannot see this particular issue anything but... Sorry to break that rule but I see it no other way.
Brent

[hogdogs]

One more point of note, if this passes, the government will be required to limit what the subjects can engage in as they must protect their interests. Moto-cross, skydiving and shooting can all be considered risky to the health of those directly and indirectly involved. It may not be considered a BoR issue... rather an FDA or "federal healthcare dept." issue to restrict these things.
Our rights are severely at risk in the long run.
Brent