Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.
Posted on 03/17/2010 7:18:01 AM PDT by Cboldt
The reporting and commentary on the Slaughter Strategy "deem scheme" stunt is based on at least one false premise. As usual, basic and fundamental error is reinforced by the media "echo chamber," with the end result being that the media and uniformed commentators (even the professionals) really don't have a clue. So much for educating the public. If you want to be correctly informed, if you care, then you must do your own homework. The professionals in the media are just talking heads.
The professionals haven't even bothered to research or notice the fundamental character of a Concurrent Resolution. Not that this is common knowledge, but it is parliamentary procedure 101. Concurrent Resolutions (and reconciliation is a concurrent resolution) are not sent to the executive, ever.
The "deem scheme" stunt is an internal working of Congress that amounts to amending Senate-passed HR 3590, then sending it back to the Senate for agreement. Except the House doesn't want to amend HR 3590, because that results in the Senate being able to use unlimited debate. So, the House and Senate have cooked up a procedure that results in a limited time for debate in the Senate.
My prediction on the "deem scheme" plan is outlined below. I say prediction because we don't have the language of the H.Res. "rule" or H.Con.Res. "reconciliation;" but this is a well-informed prediction, based on statutory language that defines "budget reconciliation" as a concurrent resolution, and past precedent that conditionally "deems" something passed.
I'm not providing this as a defense of what Speaker Pelosi and Majority Leader Reid are planning to do. I think it's a parliamentary hack, cheat, etc. But it isn't unconstitutional in principle; as long as a majority of both chambers agree to the same language in the bill, the bill will have passed Congress.
House Concurrent Resolution - Congressional Bills: Glossary
A concurrent resolution is a legislative proposal that requires the approval of both houses but does not require the signature of the President and does not have the force of law. Concurrent resolutions generally are used to make or amend rules that apply to both houses.
House Concurrent Resolution - West's Encyclopedia of American Law
A resolution adopted by both houses of a bicameral legislature that does not have the force of law and does not require the signature of the chief executive.
Concurrent Resolution - CSPAN
A CONCURRENT RESOLUTION is used to take action or express opinion on behalf of both the House and Senate.
It does not make law. Uses include fixing adjournment dates & setting the annual congressional budget.
For purposes of [subsection (c)], a reconciliation resolution is a concurrent resolution directing the Clerk of the House of Representatives or the Secretary of the Senate, as the case may be, to make specified changes in bills and resolutions which have not been enrolled.
Yes, but "the rule" doesn't provide that passage of HR 3590 as passed by the Senate is "a question" subject to a vote.
-- Doesn't the Constitution say here that Yeas and Nays and names of members on the bill must be recorded if one-fifth of those present in the House want it that way? --
"On any question," and the political leadership decides what the question will be.
Think of it this way - if the House picked up HR 3590, and amended it, would you have any (constitutional) issue? If not, this process does exactly that, but short circuits the unlimited debate in the Senate, that attaches to the normal "amend and send back" process.
The House doesn't want to be the chamber that killed the bill. This gets the hot potatoe out of Nanci's panties in a way that has her do "everthing imaginable" to get the bill passed. It'll die in the Senate, and be Reid's fault.
Yes, but you have to "read on," It's not yeas and nays for everything, its "and the Yeas and Nays of the Members of either House on any question ..."
In order to find out what constitutes "questions," one looks to the various articles put before the body. By articles, I mean HR's , H.Res.'s, H.Con.Res, Amendments, and so forth. Within that pile of possible questions, the House Resolution is one question. The Resolution provides the terms of debate for the combination of Senate-passed HR3590 and "an intramural reconciliation agreement." That House Resolution doesn't provide for passage of HR 3590, standing alone, to be a question.
What about the Byrd rule ...about reconcilation only being used for budget bills?
This is really thorough, excellent and thought provoking work. Thank you, Cbolt.
However, I am not sure the constitutionality of this procedure is so clear cut. Although the “deem and pass” procedure has been used before, the SCOTUS has said in past cases that the repetition of an unconstitutional process does not make it constitutional. According to Politico, Alan Morrison, the professor at George Washington University Law School who authored the brief challenging the line item veto (which the Supreme Court declared unconstitutional in 1998) said, “You run the risk that it (the healthcare bill) could be declared unconstitutional.” Politico says that John Paul Stevens defined the procedure in the line item case as having three steps: approval of a bill by one house, approval of the “exact text” by the other house and a presidential signature. The constitution explicitly requires that each of these three steps be taken before a bill “may become a law” he wrote. I suppose it will all boil down to whether the rule (deeming) with the House Concurrent Resolution constitutes approval of the bill.
That's not a question of conformity with the Constitution. I think passing significant policy is outside the boundaries of the budget process altogether, nevermind the resort to reconciliation.
"Deemed passed" is a legislative fiction. I believe its function in the health care bill context is to substitute Concurrent Resolution (enroll only if changed by concurrent resolution) for the usual amendment process.
A made-up, specific example: The House deems HR 3590 to have passed, provided A concurrent resolution is passed (this is what the rule will say, in my prediction). Now suppose that the concurrent resolution (which goes to the Senate) opens with "remove all after the enacting clause, and substitute (blah blah blah)" The House will vote on the concurrent resolution. If it rejects it, it rejects both HR 3590, and the "substitute amendment." If it passes, then the entirety of HR 3590 is now House language, to be approved by the Senate.
Constitutional?
Now a completely made up, other example: The House deems HR 3590 to have passed, but the concurrent resolution is renaming a post office. NOW we have a problem, because HR 3590 and the concurrent resolution are totally independent; and one of the two appears to be skipping a vote by the House.
But as long as the concurrent resolution is related to HR 3590, that is, it "amends" or "changes" it, the net result at the end of the process is the same as if the House actually took up HR 3590 and amended it. The net result, and the point of reference used (so far) by the Courts is embodied in the enrolled bill, and doesn't pierce the question of the process Congress used to reach majority agreement in both chambers.
I believe the Senate Parliamentarian ruled that they could only use Reconciliation to modify existing law and not to amend an existing bill. Thus your explanation would not work because for the bill to become law (and thus allow reconciliation to proceed) it would have to be signed by the President. So, the whole idea of it being modified by the Clerk before being signed by the president is out the window at this point.
If they could use this vote to simply amend the bill (through the reconciliation process) then I think I would agree with you that it would not be unconstitutional. However, if they try to send the Senate Bill directly to the president based on this vote then it clearly is unconstitutional.
My attitude toward the media is, "if they get it right, it's an accident."
Mitch McConnell has said his office never said the president has to sign it, in order for a concurrent resolution to be effective. "We were very careful in what we said," (my paraphrase - going from memory of the report).
I have never seen the words of the parliamentarian, the reports say he gave his opinion orally. I have seen reports that go both ways on the meaning of "must be law" (president signs vs. agreed to by both chambers of Congress, but not yet sent to the president). The commonly adopted (and as I contend, false) belief is that the president must sign HR 3590, as passed by the Senate, before congress can change HR 3590.
There is a conundrum with "must be signed by the president before Congress can change it." Before the president can sign it, the House has to approve HR 3590 - and in the process I've outlined, the approval of HR 3590 by the House depends on (is conditional) on passing H.Con.Res. "reconciliation," which I believe will recites changes or amendments to HR 3590.
That's false.
Well then, you need to take up that debate with my conservative Constitutional professor.
As long as Congress speaks, there is nothing in the nature of "line item veto" to Obama.
You need to read a little more closely. When Congress gave Clinton the Line Item Veto, the Supreme Court deemed it to be unConstitutional because it was NOT a valid bill once it was jimmied with. What Obama and his fledglings in Congress are attempting to do is provide Obama with an invalid bill and call it valid and cram it down our throats. The Supreme Court will, hopefully, rule as they did in the Line Item Veto situation if given the chance.
I'd be happy to.
-- When Congress gave Clinton the Line Item Veto, the Supreme Court deemed it to be unConstitutional because it was NOT a valid bill once it was jimmied with. --
Well, technically, the line-item veto law was not jimmied with by Congress after it was passed. What was jimmied with by the president was the budget. The case in hand, the process of passage of health care by Congress, doesn't implicate the president changing anything, after the president receives it. Congress has and retains control over the contents of the health care bill.
You still do not get it. When Congress sends a VALIDLY voted on bill to the president, in order to have that bill become a law, the president must sign it AS IS. If the validly voted on bill is in any way CHANGED, it is no longer valid and cannot be signed because it cannot constitutionally become a law.
What Obama and his robots in Congress are attempting to do is convince us all that the Slaughter thing is valid, when it is not, and when the president signs it - somehow it magically becomes a valid law.
Well, technically, the line-item veto law was not jimmied with by Congress after it was passed.
Congress did not jimmy with it, the president did when he changed just one letter in one line. The president invalidated the valid law sent to him by Congress by editing it.
Where have I said otherwise?
We disagree on whether or not "deeming" HR 3590 to have passed (in combination with voting on and passing a concurrent resolution that orders amendment to HR 3590) results in unchanged HR 3590 being enrolled by both the House and Senate, and sent to the president. I say the process does not result in the unchanged HR 3590 being sent. You say it does.
As far as a validly passed law (enrolled, signed by the president) being out of Congress's reach for change, well, that's obviously incorrect. Laws on the books are amended and repealed, by Congress, on a fairly regular basis.
If you don't mind, could you tell me again, what provision in the health care law the president would be changing?
Well, it sounds like if your theory is correct then reconciliation would have to go through the Senate untill the Senate and the House reach the same language before any health Reform could become law. And I think we both agree that if they try to deem the Senate Bill passed and then have the President sign it into law without Reconciliation going through the Senate then that would be Unconstitutional. So, either way this thing is a long ways from over.
Here's a link to the line-item veto case: Clinton v. City of New York, 524 U.S. 417 (1998)
In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. "[R]epeal of statutes, no less than enactment, must conform with Art. I." INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.
President Clinton "cancel[ed] one provision in the Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105-34, 111 Stat. 788, 895-896, 990-993"
The issue of the president repealing law (based on authority Congress tried to give the president) has no relationship to Congress making and changing its own laws.
Once something is sent to the president, the might be an issue in the health care bill over whether the bill is supported by agreement between the two chambers of Congress. The test for that is expressed in Field v Clark, 143 U.S. 672 (1892); and used in Public Citizen v US District Court for DC. The court did not look beyond the enrolled text.
Yes, that is the conclusion of the opening post. Either Senate-passed HR 3590, as changed by concurrent resolution "reconciliation" is passed (meaning Senate agrees with House changes, bill is changed before being enrolled and presented), and the president gets ONE health care bill, or the House and Senate agree on something else entirely, or there is passage of a health care bill.
-- And I think we both agree that if they try to deem the Senate Bill passed and then have the President sign it into law without Reconciliation going through the Senate then that would be Unconstitutional. --
I agree. And it would be unconstitutional because the House does not agree with HR 3590 as passed by the Senate. The "deemed passed" language only operates inside Congress, to work changes that would be accomplished if HR 3590 was amended/changed in one of the usual ways. Agreement between the chambers will be apparent on review of the record, should it happen.
First of all, Obamacare is not a law but a bill. There is a difference between the two.
I am referring to the validity of a bill presented to the president for him to sign which is intended to become law. Our Founders laid down clear steps for all branches to follow. In the Obamacare bill, which is not yet a law, it must be voted on and passed by both houses of Congress, then it is able to be signed into law by the president. Those steps must be followed in order to remain valid. I used the example of Clinton's line item veto to point out the need to be very scrupulous about the validity of a bill on its way to becoming a law.
Obama and his congressional lackeys are attempting to circumvent the passing of a bill into law by claiming that it is indeed valid, which it cannot be, no matter how they "slaughterize" it.
The Supreme Court will be forced to decide this invalid case, just as they did when they were presented the case concerning the line item veto.
As far as a validly passed law (enrolled, signed by the president) being out of Congress's reach for change, well, that's obviously incorrect.
You are talking about provisions in the bill which allow for the head of a department to make necessary changes. That is a problem that allows for largesse, but it does not make a law invalid.
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