Posted on 03/16/2010 3:34:49 AM PDT by Man50D
Rep. David Dreier (R-Calif.), the ranking Republican on the House Rules Committee, said Democrats can pass health care reform without actually voting on it, if they can pass a rule that deems the bill passed when the House approves a budget reconciliation bill.
Constitutional scholars, however, said that what the Democrats may try to do is unconstitutional and could spark a constitutional crisis far worse than Watergate or the South’s attempt at secession in the 19th century.
Dreier, speaking to reporters Monday in his Capitol Hill office, said there is nothing the majority party (Democrats) cannot do so long as the Rules Committee, where Democrats hold a 9-4 majority, authorizes it. This would include passing health reform without actually voting on it.
“There’s nothing that can prevent it,” Dreier said. “It’s something, David (a reporter) that they can clearly do, if they have the votes.”
Dreier was referring to a plan called the Slaughter Solution – named for Rules Committee chairwoman Rep. Louise Slaughter (D-N.Y.) – that would have the Rules Committee draft a special rule of the House whereby the Senate-passed health care bill is deemed to have passed when the House passes a package of budget-related amendments to the bill.
The Rules Committee sets the rules of debate for legislation before it is brought to the House floor. Under normal circumstances the committee lays out how much time each side is allowed for floor debates and which amendments they can offer on the floor. Amendments that the majority does not want debated or offered on the floor are often added to legislation in the Rules Committee.
Such self-executing rules, as they are known, have been used by both parties to avoid extended debate on politically embarrassing matters, such as raising the national debt ceiling.
If Democrats use the Slaughter Solution, it would send the Senate-passed bill to the president to sign, and the amendments package would go to the Senate, where it presumably would be taken up under the budget reconciliation process.
Dreier, a past chairman of the committee, said that if the plan succeeds, the bill would become law, no matter how dubious the method of passage. Dreier said he had “explored” questions of the plan’s legality and found that the bill would still become law.
“I’ve explored that earlier today and I think that if it becomes law, it becomes law,” he said. “I think that that’s the case.”
When asked whether the plan was constitutional, Dreier deferred, saying that he wasn’t a constitutional lawyer. He did repeat, however, that if Democrats are able to pass their rule, then health care reform would become law.
“If this passes and is signed into law, I think it becomes law,” Dreier said. “I’m not a constitutional lawyer and that’s the response from some of the experts with whom I’ve spoken – I didn’t speak to but have gotten some input from. I’m not in a position to raise the (constitutionality) question right now.”
The question of constitutionality stems from the plain language of Article I, Section VII of the Constitution, which states that all bills must pass Congress via a vote of “yeas and nays.”
“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. … 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.”
Radio host and former Justice Department Chief of Staff Mark Levin criticized the Slaughter Solution as a “blatant violation” of the Constitution on his radio program on Thursday, March 11.
“I can’t think of a more blatant violation of the United States Constitution than this,” said Levin, who also runs the conservative Landmark Legal Foundation. “If this is done, this will create the greatest constitutional crisis since the Civil War. It would be 100 times worse than Watergate. It would be law by fiat, which would mean government by fiat.”
Constitutional law expert Arthur Fergenson, the lawyer who argued the famous Buckley v. Valeo case enshrining campaign spending as a form of constitutionally protected speech, weighed in on Levin’s Thursday program, calling the plan “ludicrous,” saying that such a move would be “dangerous” because it would amount to Congress ignoring clear constraints on its authority.
“It’s preposterous, it’s ludicrous, but it’s also dangerous,” Fergenson said. “It is common sense that a bill is the same item. It can’t be multiple bills. It can’t be mash-ups of bills. It has to be identical, that’s why the House and Senate after they pass versions of the bill – and we just had this with what was euphemistically called the jobs bill – if there are any changes they have to be re-voted by both chambers until they are identical.”
Fergenson explained that both chambers of Congress must each vote on identical bills before the president can sign them into law. Any bill signed by the president that had not first been voted on by both the House and Senate would be a “nullity,” he said.
“Both chambers have to vote on the bill,” Fergenson said. “If this cockamamie proposal were to be followed by the House -- and there would be a bill presented (to Obama) engrossed by the House and Senate and sent to the president for his signature that was a bill that had not been voted on identically by the two houses of Congress -- that bill would be a nullity. It is not law, that is chaos.”
Former federal judge and the director of Stanford University’s Constitutional Law Center Michael W. McConnell agreed with Fergenson’s assessment. Writing in The Wall Street Journal on March 15, McConnell called the Slaughter Solution “clever but … not constitutional.” McConnell noted that the House could not pass a package of amendments to a health reform bill it had not passed first.
“It may be clever, but it is not constitutional,” said McConnell in The Journal. “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.”
“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote,” wrote McConnell. “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.’”
Very True, and whilst ever we hold these words as truth in our hearts, the country will always belong to us and not them. This is not over by a long shot. Even if the bill passes. It will have only just begun.
“The non-repeal clause in a piece of legislation does not trump the Constitutional prerogatives of a Congress to write new legislation.”
I agree... and if you can say it... why not drier or any other elected republican Ostrich? That is a weak but prime example of what I am suggesting.
LLS
A California elected Republican... must be about like the communists we have around here... we only have a few... mostly College professors that never made it in real life.
LLS
“Look at the post right above your response... that is what I think that they could be doing. Public opinion will never be brought to a deafening roar by talking about procedures and tactics... we need an in your face counter attack on the evilcrats and their destruction of our way of life. All we get is pablum with a side order of mush”
ABSOLUTELY!!!! The Ace in this game is the Consitituion. We must use it and they cannot escape it.
““If this passes and is signed into law, I think it becomes law,” Dreier said. “I’m not a constitutional lawyer and that’s the response from some of the experts with whom I’ve spoken – I didn’t speak to but have gotten some input from. I’m not in a position to raise the (constitutionality) question right now.” “
Drier is a fool. If he doesn’t know Constitutional Law, why is he shooting off his mouth to a bunch of thugs?
“Drier sounds like he’s encouraging the Rats to do this.”
Of course he is. There is no other reason to bring his opinion public.
We the people cannot depend on the current Supreme Court to declare the bill unconstitutional. At best the current court would rule 5-4 to declare the bill unconstitutional. However, Kennedy cannot be depended on and might be persuaded to vote the other way.
It will take months, if not a year or more, for the case to work its way through the legal system to reach the Supreme Court. Two of the justices who might support the proposition the bill is unconstitutional are over 70 years of age — Scalia (74) and Kennedy (73). No doubt if either departed the Court, Obama and the Democrat Congress would try to fill the vacancy with a left wing judge. It is likely they would be successful, tilting the balance of the Court permanently to those who openly advocate a “living” Constitution.
Today we have the tyranny of the imperial presidency supported by a rubber stamp Congress and a sometimes acquiescent judicial branch. Not unlike the tyranny of King George III and Parliament at the time of the Revolution. Our institutions have been corrupted. It is now time for the people to decide if they wish to live in slavery or shake off the chains of an oppressive collective government.
Hamas suicide belts are available.
“Yes except that Reid put thE phrase that this bill cannot be rescinded by any future Congress.”
Wanna bet, Reid??
Yes. Of course it’s unconstitutional. So was the VAWA. So has been much bipartisan, unconstitutional, anti-business, anti-family legislation over the years. Republican politicians have laughed in my face in their support of the efforts of NOW members in the judicial system. They’ve supported anti-competition regulations in nearly every locale for local special interests. If they want superior numbers in Congress, they’d better stop shoving special-interest-backed, politically correct candidates at us and get conservative.
Otherwise, spend, spend. They’ll get the default option, then we’ll get small, unintrusive government.
“The non-repeal clause in a piece of legislation does not trump the Constitutional prerogatives of a Congress to write new legislation.”
I understand that but I imagine it will take a ruling by the SCOTUS to affirm that the provision is unconstitutional. Otherwise why have it in there.
I agree that Reid doesn’t get that the people are the ultimate government. But the “people” have been trumped by the pols before and will be so again.
Don’t like it or agree with it but there it is.
Please read all my posts, and all the replies debating my replies, starting here:
http://www.freerepublic.com/focus/chat/2470758/posts?page=16#16
Please read thoughtfully with a copy of the Constitution open to Art I Sec 7 next to you.
Because of the construction of Paragraph 2 from beginning to end, taken as a whole, I find it clear that the Yeas and Nays are only required to be reported on the 2/3 votes to over-ride presidential vetoes.
Please note that I’m not saying bills do not need to be voted on, but rather that each house has the power to determine the rules for the process of legislating, as long as the rules do not violate the restrictions and mandates in the Constitution.
So, IMO, the Slaughter House Rule will not be overturned by the USSC.
that is my reading as well. I’m a little stunned that so many have latched on to the this clause. Its not very helpful.
That the same piece of legislation must be presented to president is with out question. Not an amended bill. Not an appended bill. Same bill to be signed. The yeas and nays are not required. That being said, its disgusting to have a rule that by passes even so much as a voice vote. (which is quite common.)
Thank you. You are the first FReeper to agree with me.
No, you are not alone.
I’m with you too.
The Cornhusker Kickback
The Lousiana Purchase
The Slaughter House Rules
that George Lakoff guy must really be swilling the Maalox these days
The fix is in.
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