Is "Deem and Pass" Constitutional? aka "the Slaughter Rule?

Discussion in 'Politics' started by madanthonywayne, Mar 19, 2010.

  1. madanthonywayne Morning in America Registered Senior Member

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    As the Democrats in congress frantically try to ram thru ObamaCare via any means necessary despite a lack of public support and despite them now lacking the votes to get another bill thru the Senate, they now have settled on a last ditch strategy to pass it without really voting on it.

    You see, the bill that passed the Senate on Xmas eve now couldn't even get thru the Senate again because the Republicans have picked up the Senate seat formerly held by Ted Kennedy. So the only way to get a bill thru is for the house to pass the exact same bill that the Senate passed.

    But the Senate bill is full of bribes and (perhaps more importantly to certain representatives) changes the rules regarding abortion to allow federal funding; so it doesn't stand a chance of passing in the house.

    So the Dems have decided to vote to "deem" the Senate bill passed without actually voting to pass it. They are going to vote on the amendments they want to the Senate bill and "deem" the Senate bill passed as part of that vote.

    But this is not the process laid out in the constitution. Claiming that a vote to amend the Senate bill that 'deems' the Senate bill passed is the same as voting to pass the Senate bill ignores the fact that an actual vote on the Senate bill WOULD NOT PASS!

    Experts are divided on the constitutionality of this maneuver. Here's an article by constitutional scholar Michael McConnell. (I've included the entire article because you can only access the full article if you're a WSJ subscriber).


    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.
    One thing is for sure, even if this bill passes this weekend, the battle is far from over. Legal challenges are sure to follow and Republicans are already planning to pledge to do all they can to repeal it if they take power in November.

    Michael McConnell, WSJ
     
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  3. superstring01 Moderator

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    I think it's constitutional.

    As long as the house actually votes, it doesn't matter how they phrase what they are voting for.

    It's legalistic bullshit, but if I vote for the bill, or vote for another bill which states that the first bill is passed, either way, I'm still voting. The net effect is the same.

    ~String
     
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  5. Tiassa Let us not launch the boat ... Valued Senior Member

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    Merit and Honesty

    The San Francisco Chronicle urged Speaker Pelosi to avoid the deeming route:

    We concur with President Obama's call for a clear up-or-down vote on the health care package. Members of Congress should not be protected from a plain accounting of their role in a historic reshaping of the way health care is financed and delivered in this nation. House Speaker Nancy Pelosi should resist the temptation to gain votes by employing a parliamentary move in which the terminally flawed Senate version is "deemed" to have passed and then amended. Yes, it has been used before to shield lawmakers from tough votes - such as raising the debt ceiling and reauthorizing the Patriot Act - but, in this case, a backdoor play would only add to the public perception that health care has been corrupted by political expedience.

    Raising issues of constitutionality is a difficult approach, as deeming has been used in the past regarding significant legislation. And, indeed, when it was the Patriot Act, it seems conservatives were hardly bothered by the prospect, so we should put aside the hypocrisy of this sudden development of a constitutional conscience.

    The Chronicle is correct, however, that deeming the bill to have passed will wreck whatever credibility it has left. Now, if we would like to throw out the Patriot Act as unconstitutional for having been deemed reauthorized, and any other legislation similarly passed, I'll happily side with the constitutional argument. Precedent, however, casts such a simplistic argument about Article I in a dubious light. In the larger context, deeming is a highly inappropriate route under any circumstances I can presently imagine, and the issue should probably be addressed. But if we are to have that discussion, it would behoove us to do so responsibly, and not pretend that this is some sort of new invention in order to stoke the fires of public outrage. McConnell's pretense, regardless of its technical merits, is politically dishonest for ignoring the fact that it has been used in the past, and whoever might have pitched a fit about it then was simply ignored.
    ____________________

    Notes:

    "A deem shame". Editorial. The San Francisco Chronicle. March 18, 2010. SFGate.com. March 19, 2010. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/03/17/EDCF1CH77Q.DTL
     
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  7. joepistole Deacon Blues Valued Senior Member

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    Yeah I don't see a problem with it either. And it remains to be seen if the Democrats will actually use it. So before one goes yelling fire in a crowed movie house, maybe one should wait to see if a fire is present.
     
  8. Tiassa Let us not launch the boat ... Valued Senior Member

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    The obvious question

    Why ever would he make that change now?
     
  9. joepistole Deacon Blues Valued Senior Member

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    True

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  10. spidergoat pubic diorama Valued Senior Member

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    This is nothing new, the cons are trying to make this look like something radical, but they did it too.
     
  11. iceaura Valued Senior Member

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    If it is declared unconstitutional, a good share of the major legislation passed during W's tenure is going to disappear - including the Patriot Act, the authorization of the US debt accumulated under W's administration, and lots of other stuff.

    I don't buy that. The "credibility" of the bill depends on the handling of the Republican media attacks, and they do not rest on any actual features of its passing or its content.

    There's no sense in amending reality to try to get propaganda leverage - for one thing, that doesn't work. For another, it does real damage. Deal with the propaganda as propaganda, and reality as reality - in the long run, that will work better than this infuriating nonsense (which resembles an excuse for whoring, btw) of changing actual legislation and matters of real content to try to improve enemy rhetoric or counter will-o-the-wisps of enemy agitprop. It's like bricking up your windows to keep ghosts out, when the ghost-mongers are trying to brick you in.

    Call it the Hastert Maneuver, every time it's brought up. Get all the Dems on board calling it the Hastert Maneuver. Bribe columnists to put that in headlines and essay titles, newscasters to use that term when discussing it. Then do what works.
     
  12. joepistole Deacon Blues Valued Senior Member

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    Yeah the interesting thing is that this rule has been used since 1933. So if the supremes in their partisan wisdom were to deem this unconsitutional there would be a lot of law to reverse. Including george II tax cuts for the rich which by the way the CBO estimated would increase the defict by 1.4 trillion dollars versus reduce the deficit by 130 billion as does the healthcare reform bill (10 year period)

    I suppose the supremes could make a ruling like they did in the 2000 election, we make an exception to the rule this one time only. For everybody else and for all other issues the law remains unchanged but for this instance we will make an exception. But if the court plays that game again, I find it hard to believe that it could retain any kind of credibility. And I think maybe congress should look to impeach certian justices.

    "Section 1 of Article III states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness the 'high crimes and misdemeanors" encompasses. "

    http://wiki.answers.com/Q/Can_a_US_Supreme_Court_justice_be_impeached_and_removed_from_office

    P/S Congress woman Slaughter was about 3 years old in 1933 when the proceedure was first used in Congress. So I find it very interesting that Congress would decide to name this proceedure after her at that tender young age. The reality is that it is only the Republicans who are using this name (Slaughter) to describe this well established proceedure and only recently choose to use her name to describe the process. I think we all have to admit that the name "slaughther" carries with it certian negative emotions. And this is why Republicans are using it, to scare people...nothing new for Republicans - distort, deceive, and confuse are the order of the day, month, year, and decades for Republicans.

    Republicans used this device/proceedure 36 times in a recent 2 year period. Now it becomes unconsitutional when the Dems may use it

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    http://www.huffingtonpost.com/2010/03/16/health-care-opponents-dem_n_501353.html

    FIRE FIRE FIRE, the sky is falling, the sky is falling, lol.
     
    Last edited: Mar 19, 2010
  13. iceaura Valued Senior Member

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    Use of the Hastert Manuever is a symptom of a broken legislature, a dysfunctional government.

    But that's what we have. Get 'r done, or go home.
     
  14. Pasta Registered Senior Member

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    It is hypocritical of the republicans to cry about this.

    On the other hand, the republicans never used this sneaky procedure on such a transforming bill, namely pushing the U.S. more into Socialism; something most Americans are not for and the founders of the U.S. never intended.
     
  15. spidergoat pubic diorama Valued Senior Member

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    What's the socialism? There's no public option!
     
  16. madanthonywayne Morning in America Registered Senior Member

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    Great. Repeal them all. The Patriot act was supposed to have a sunset provision in it anyway. Obama claims there is no war on terror, so we don't need the Patriot act anymore.
     
  17. joepistole Deacon Blues Valued Senior Member

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    It sounds like you are getting a bit desparte. You are willing to repeal almost a century of law in order to defeat healthcare reform?
     
  18. clusteringflux Version 1. OH! Valued Senior Member

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    Ah, so now you're going to pretend you don't understand the issue presented inthe OP?


    How so?
     
  19. Tiassa Let us not launch the boat ... Valued Senior Member

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    It's a stupid way to go about it, but ....

    So how much fun do we get to have reviewing the Congressional Record? No, really.

    Meanwhile, Richard Greener adds some insight to the Deem and Pass fight:

    What part of Article I Section V of the U.S. Constitution don't the Republicans understand? That's the big question as the GOP desperately convulses at the prospect of the House of Representatives sending the healthcare reform bill to the President's desk using the "Deem and Pass" rule.

    Here is exactly what the Constitution says about that: "Each House may determine the rules of its proceedings..." How big do the letters have to be before the Republicans can read this? But then, of course they can read it, and they do understand it. How do we know that? Because the Republican House of Representatives used the very same "Deem and Pass" rule 35 times in 2005-2006. Yes, that's right, not once or twice -- 35 times.

    The fight then was taken all the way to the Supreme Court where -- you guessed it -- the Republican House leadership won the case! And they should have. Just read Article I, Section V again. How could anyone not understand its meaning? "Deem and Pass" is not some new concoction designed by left-wing radicals in the Obama White House or San Francisco Democrats. The "Deem and Pass" rule is 77 years old. It's survived 8 different presidents, more than half of them Republicans. Where, one might reasonably ask, was the Republican outrage over these last 8 decades?

    So, if this House prepares a list of "fixes" to the Senate healthcare bill and passes those changes under the "Deem and Pass" rule, it will be as if the Senate healthcare bill has passed along with the proposed changes. Using this procedure, the Congress may send a final bill to the President for signature into law. Democrats hope that would be immediately followed by the Senate enacting the House "fixes" using their Reconciliation rule -- also covered quite succinctly by the Constitution in Article I Section V. Remember, that provision refers to "Each House." Both the House of Representatives and the Senate, in determining their own procedural rules, would be acting in strict accordance with the originalist meaning of the Constitution.

    Sure, it cracks me up, too, to see someone refer to Nancy Pelosi as a strict constructionist, but apparently Article I, Section 5 is the constitutional key to establishing the propriety of the D&P. McConnell's I.7 argument, apparently, doesn't cut it. Which makes sense, in a sad, twisted way. If there is some extenuating circumstance that trumps I.5, I haven't yet found the explanation. In the end, the constitutionality of D&P will probably hinge on its execution. Given that the Supreme Court has blessed its general procedure, though, the outstanding issue upon which a new question will hinge probably has to be somewhat severe.

    I'm more worried about the credibility of the bill. If it passes on a straight majority vote, I expect that the bill's merits will, in the long run, vindicate the Democrats to some—limited—degree. It really depends on how well or poorly the initial enactment goes, and how much scrambling to fix the problems is necessary. However, if this bill goes through amid a public brawl over D&P, that spectre will haunt every failure and obscure every success the reform effort brings.

    To the other, conservative outrage over the idea of this outcome is completely bogus and utterly dishonest. Then again, nobody really cares. Dishonesty doesn't hurt a politician as much if, like the Republicans, one isn't expected to be honest, anyway.
    ____________________

    Nots:

    Greener, Richard. "Nancy Pelosi: 'Originalist' and 'Strict Constructionist'". The Huffington Post. March 18, 2010. HuffingtonPost.com. March 19, 2010. http://www.huffingtonpost.com/richard-greener/nancy-pelosi-originalist_b_504197.html
     
  20. madanthonywayne Morning in America Registered Senior Member

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    But the constitution also states in Article 1, Section 7:

    Every Bill which shall have passed the House of Representatives AND the Senate, shall, before it becomes a Law, be presented to the President of the United States

    And I believe that when a specific statement of the constitution is in conflict with a more general one, the specific rule prevails.

    Anyway, I really don't know much about this. I wasn't aware deem and pass was used for the patriot act or any other time. As you note, the specifics of the case will, no doubt, determine the outcome if the case goes to trial.

    It would be far better if they'd simply have an actual vote rather than this sort of BS that may well end in another supreme court fiasco.​
     
  21. superstring01 Moderator

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    With "deem and pass" the House is still, essentially, voting on the bill.

    What's the difference if you vote on the specific bill OR vote to say that the bill has passed? Essentially, nothing. You're just phrasing it differently.

    ~String
     
  22. madanthonywayne Morning in America Registered Senior Member

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    Sure, you can argue that. But then, if there's really no difference, then why not just vote on the actual bill? The reason is, of course, because there is a difference; at least in the minds of the representatives. Voting for the Senate bill is unpalatable, but voting for a bill that claims to fix it while "deeming" it passed doesn't seem as bad.

    Regardless, while I see the merit of your argument, I can also see the merit of the opposite argument. The constitution lays out a specific way for a bill to become law and, while the house if free to set rules, those rules must conform to the specifics set forth in the constitution.
     
  23. spidergoat pubic diorama Valued Senior Member

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    What Speaker Nancy Pelosi (D-Calif.) is exploring..., use of a procedure that was created by Republicans and used by them hundreds of times. It’s even called the “Dreier Doctrine,” after its champion, former Rules Chairman David Dreier (R-Calif.), who not only employed “deem and pass” on many occasions, but even defended it in court.

    link
     

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