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.
“cowardly demwits want “
Didn’t you mean DEEMWITS?
The second is not contingent on presenting HR 3590 unamended, to the president. That's why I call "deemed passed" a legislative "fiction." It's an internal working that causes HR 3590 to go to the clerk, but at the same time, the clerk gets a notice that says HR 3590 is not to be enrolled as passed by the Senate, see H.Con.Res. "reconciliation."
Reconciliation can be a process for changing law that has passed both chambers, but has not yet been enrolled. If both chambers agree to fix, amend, change, whatever something both chambers agreed to previously (and they happen to catch it before it leaves Congress; and both chambers vote and pass a resolution that specifies exactly the changes), they remain in agreement - the Clerk will change the enrolled bill.
"Deemed passed" is not the same as "HR 3590 is in condition to be sent to the president, without changes," because the House immediately follows "HR 3590 is passed" with "but before you enroll it, change HR 3590."
It doesn't make any intuitive sense to do it this way, any more than it makes sense to correct an error instead of doing it right the first time (or to go back to the grocery store because you wanted milk, too). But Congress is a "black box" to the outside world, and the constitution is satisfied if both chambers genuinely agree on the same language.
Do you perceive a constitutional infirmity if both the House and Senate agree to the exact same language on Health Care, as changed by H.Con.Res. "reconciliation," and the clerk enrolls exactly that language before ONE health care bill that represents the will of the majority of both the House and Senate is sent to the president? If not, the issue is one of internal Congressional workings.
I suspect that is found in some sort of "rule," not in the constitution, and I posted a link to the reconciliation statute, which specifies that reconciliation is a concurrent resolution (meaning it is a "law" that does not have force outside of Congress, and does not obtain approval from the president), that operates on enrolled bills.
In other words, the reconciliation statute itself contradicts the contention that the matter to be changes must first be presented to and signed by the president. The reconciliation statute says the opposite, the change ordered by reconciliation must come before enrollment.
Implied in that, and required, is that whatever passes both the House and the Senate, be identical before it SHALL be presented. If the House does not in fact agree to HR 3590 as passed by the Senate, then it would be unconstitutional for the House to enroll HR 3590 as passed by the Senate.
Passage of HR 3590 is conditional on passage of the reconciliation resolution, and passage of the reconciliation resolution changes HR 3590. IOW, what gets out of the house, in spite of the words "HR 3590 is deemed passed," is NOT HR 3590 as passed by the Senate. One looks at the outcome of the House action (which is a change to HR 3590) in order to determine the will of the House. One can't stop at "deemed passed," play that through to the end, and then go back to the rule and pick up the next clause in the rule.
I think I'm running out of different ways to say the same thing!
Pelosi, Slaughter went to court with Public Citizen against GOP in 2005 case that exposes Slaughter Solution flaw
The Public Citizen case has nothing to do with “self executing” aspects in an H.Res “rule,” or with a legislative fiction of “deemed passed then purposely changed in Congress.” The situation in Public Citizen was that in fact, the House and Senate did NOT agree on the same language when the respective chambers voted assent to the bill. Congress ended up sending the Senate version to the White House. The Court held that the enrolled sending represented “the law,” and refused to strike the law as being constitutionally infirm.
With that, the entire analysis and speculation is fatally flawed - defunct, false, worthless, etc.
I'd post that notice/revision/caveat at the top of the post if possible.
And while the H.Con.Res. process is fairly seen as a bastardization of internal rules, with no constitutional ramifications; THIS process muddies accountability as to the will of the House.
Cboldt, can you explain how the process will work as described in the CBO letter? I couldn’t get the link to work and you seem quite good at explaining.
The CBO latter doesn't describe the process, beyond saying that the reconciliation material is in a "bill" rather than a "concurrent resolution." That change means that the "two bills collapse into one" statement is false.
News reports are that H.Res. "the rule" will deem the Senate bill to be passed, on the condition that the reconciliation bill passes the House. Then a second vote will be had (in the House) to pass the reconciliation bill.
I think this poses a real issue of constitutionality. The House's "will" is expressed in the "rule," and that is that it conditions passage of the Senate bill on passage of reconciliation, as passed by the House. In essence, it never says that it would pass the Senate bill standing alone (that is, without amendment). When HR 3590, health care as passed by the Senate, is enrolled and signed by Pelosi, the Congressional Record does not support the contention that that (unamended HR 3590) bill represents the will of the House. Rather, the Congressional Record (H.Res. "the rule") states that HR 3590 MUST be changed (reconciliation changes HR 3590), before it is "deemed passed," agreeable to the House.
There are other ways to analyze the process, but basically there is no House vote to unconditionally pass HR 3590 as agreed by the Senate. Even though there are two bills and two votes, there is a potential lack of agreement between the chambers. The only way to obtain agreement between chambers is if reconciliation passes the Senate UNAMENDED, and is signed into public law. Even then, I think there is an argument that HR 3590 is unconstitutional.
I have a highly negative opinion of Congress, but this stunt drives it even lower.
The process of passing it into law is unconstitutional because the record does not support the conclusion that the language of HR 3590 (unamended by the House) was passed by the House.
Also, I think the substance of the bill is itself unconstitutional as being beyond the enumerated powers of Congress.
I don't believe the Courts would do anything about either defect, they are as much "the problem" as to upholding the Constitution, as the rest of the federal government is.
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