CW2 Ping
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.’”
I don’t get this. Do they really think that they can go out and say they didn’t vote for the bill when they clearly did?
How does this help them in real life rather than a way to get GOP angry over procedure rather than having them attack the merits of the bill?
This not voting but voting strategy is a straw man tactic and we are all falling for it.
LLS
the very basics of democracy is being violated if they go down this path. Unbelievable that its even being discussed to be honest
You don’t have to be a law professor to undedstand that if the House or Senate has never actually voted on a bill (yeas and nays) it is impossible for them to present a list of names of those who voted in favor (and against) the bill. The language states they must have had the vote and have such a list.
CW2 Ping
Except that pesky Constitution...but I realize you and the dems have discarded that moldy old document and have declared a dictatorship in DC.
Drier sounds like he’s encouraging the Rats to do this.
The act is so terribly unconstitutional as to constitute rebellion against the United States of America.
The time for talk may be past.
If the Senate fails to follow up with a vote for the “reconciliation bill” then the House is caught with its pants down so to speak.
Slaughter then Drier... sounds like a process for making beef jerky.
LLS
LLS
I've been thinking about the same thing. I think the cover it gives them is that they can claim to be voting on the ammendments package at the same time as they are voting on the Senate Bill. Under the reconcilliation process, they are first passing the Senate Bill as is, with all its noxious kickbacks, and trusting that they Senate will pass their ammendment package. If they passed first the Senate Bill and then the reconcilliation bill under separate votes, that would be clear. By passing the Senate Bill and the reconcilliation package under a single rule, they are obscuring the two separate votes. Thus, while a representative can't very well go back to his district and say "I didn't vote for ObamaCare," they are hoping that it gives their members enough cover to go back to their district and claim "I never voted for the Cornhusker Kickback," even though they did.
Whether all this is constitutional is a good question, but this crowd doesn't care.
I understand damn well what it is and the repubics did not tell me anything... They are pathetic parrots of those that actually understand the left. Rush and Levin informed me completely... neither is part of the broken repubic machine. I am NO third party idiot... but I still despise the repubics and what they have done and NOT done!
LLS
LLS
It’s routine for communists to try to come up with some crooked way to get what they want. Too doo loo, RATS.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.