Dem Strategy Unconstitutional Says Federal Judge

The Health Vote and the Constitution—II
The House can't approve the Senate bill in the same legislation by which it approves changes to the Senate bill.

(click above for the full article)

By MICHAEL W. MCCONNELL
In just a few days the House of Representatives is expected to act on two different pieces of legislation: the Senate version of the health-care bill (the one that contains the special deals, "Cadillac" insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. The House will likely adopt a "self-executing" rule that "deems" passage of the amendatory bill as enactment of the Senate bill, without an actual vote on the latter.

This enables the House to enact the Senate bill while appearing only to approve changes to it. The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).

This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School's Jack Balkin asserting that a "rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House's powers under Article I, Section 5, Clause 2."

But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

View Full Image

Associated Press

Rep. Louise Slaughter, D-N.Y
.Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

CLICK HERE FOR THE REST OF THIS ARTICLE

Mr. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center