Skip to comments.VANITY: Combination of Slaughter Solution & reconcilation is irrefutably unconstitutional
Posted on 03/17/2010 10:13:41 AM PDT by rightcoast
I have read plenty of op-eds and posts decrying the House/Pelosi "Slaughter solution" as an unconstitutional avoidance of a direct vote on the healthcare bill, and I've read plenty in recent weeks about how the Senate's proposed use of reconciliation runs afoul of that procedure's intended use.
What I haven't seen is a discussion of how the combination of these two tactics is undeniably and appalingly unconstitutional. I think my logic and analysis on this is irrefutable. Please tell me if and how I'm wrong.
Article I, Section 7 of the US Constituion lays out the process for a bill becoming a law. From that section:
"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become 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."
Senate rules on reconciliation are to provide this method for modification to existing law. A bill cannot become a law before it is presented to the President of the United States, and that in turn cannot happen until both Houses have passed the Bill with a Yea/Nay roll call vote. Even if you stretch and mangle the intent of the Constitution by saying that the Slaughter rule invokes a Yea/Nay vote by extension, there still exists one big problem...
The Slaughter method would have the House vote on a Senate reconciliation amendment package, which would in turn "trigger" or "deem" the original Senate health care bill passed. If reconciliation is a process for changing existing law, then this process is unconstitutional for the simple fact that reconciliation cannot take effect on anything but existing law, of which any proposed change to health care is most certainly NOT until it is presented to the President for his signature. The House cannot magically enact both (1) the reconciliation bill and (2) the original Senate bill simultaneously, because the 2nd is contingent on the 1st being signed into the law by the President first.
Why is the House Republican leadership not hammering this point home relentlessly?
if these bastards pull this crap I say we go occupy washington
Impeach those who fail to defend the Constitution
I expect a lengthy court battle that ends up in the Supreme Court. I also believe it is unconstitutional to tell Americans what produtts they have to purchase.
Where are the Supremes?
The process may be unconstitutional, but it's not unconstitutional for the reason you cite. You're leaving out two sentences from the paragraph you partially quote. The "But in all such Cases", refers directly and solely to cases where Congress is overruling a Presidential Veto.
I'm not sure who started this Art I, Sec 7 business, but it's insanely silly. For you to be accurate, every voice taken to pass legislation in either bicameral body, has been unconstitutional. If that's true, surely you can point to at least one case where such legislation passed by voice vote has been held to be unconstitutional, right. Can you even point to a single case that was brought, or that was granted cert based on your premise?
The Founder included in Art 5, the following paragraph...
"Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal."
Why would the Framers include this provision in Sec 5, only to demand that ALL votes be recorded in Section 7? Does that make any logical sense to you? It certainly doesn't to any Constitutional scholar that has ever actually studied the Constitution.
I will never speak or write the word Democrat again...
They are DEEMOCRATS.
Mark Levin and Landmark Legal have confirmed that they will assert a Constitutional legal challenge if this passes in this way.
Excellent! That’s the way to do.
With good reason. What happened when we all wanted the Line Item Veto and it passed and Clinton was able to scratch out anything he deemed unneeded in the bill? It then became a whole new and thereby an invalid bill and NOT the one signed by the members of Congress. All Clinton had to do was take out one letter from one line, and it became invalid. When Line Item Veto went up to the Supreme Court it was deemed UNCONSTITUTIONAL.
The Slaughter thing is really invalid being called valid for the sole purpose of cramming Obamacare down throats of the American people.
Personally, I'd like to think that it's because behind closed doors, they're saying, "Pleasepleaseplease PLEASE try it!"
Thanks for your post. I find your discussion thoughtful and challenging and matches my thoughts. Here’s a questions I sent to email@example.com: Dear Glenn,...
Even if the health care bill is passed, some say it would not withstand a constitutional challenge and the U.S. Supreme Court may throw out the law. There is the argument that that “Slaughter solution” is an unconstitutional avoidance of a direct vote on the healthcare bill, and the Senate’s proposed use of reconciliation is meant only for laws that are already in effect. Do you think these challenges are valid? Can you think of any other constitutional challenges?
Thank you for the reply... This was exactly the reason for my post, to challenge my logic, which I now see is flawed on the Yea/Nay point. I regret the error, but I’m glad to have a better picture of the constitutional grounds. What is your interpretation as to my other argument, that reconciliation is restricted to modification of existing law, and therefore it can’t be used on the healthcare bill unless and until the passed bill is presented to, and signed by, the President?
I'm not entirely foreclosing the idea that there are significant Constitutional problems with the so-called "deeming" rule, especially if that House rule is predicated upon the Senate doing something, and not the House. I think that clearly violates the Constitutional principle of bicameralism.
Be that as it may, let's for a moment stipulate that the deeming rule is plainly unconstitutional, for whatever reason. Recent precedent doesn't bode well for such a challenge to be heard by the Court. Public Citizen v US District Court for DC, a 2005 case that was brought in a challenge to Republican use of the same tactic, was dismissed on the basis that it violated (amongst other things) the Political Question Doctrine. You may have already read, that ironically, Slaughter, Waxman and Pelosi all submitted amicus briefs supporting Public Citizen, but were rebuked by the DC District court, and that decision was affirmed in DC Circuit.
The question of this rule's Constitutionality becomes, as a practical matter, moot, because the Judiciary is unlikely to entertain such a challenge.
Of course, that doesn't mean that other challenges, not based on the process of passage, but on the substance of the bill itself, won't be heard. Clearly they will, and many of those challenges I am sure are likely to prevail in Court.
Oh, and to answer your question directly, I have read the Congressional Budget Act of 1974 several times in the last three weeks. To me, I think the language is plain - it is to be used to amend existing law only , not a bill.
If the Supremes were to entertain such a challenge, this would have a much greater chance of meriting cert, than any challenge to the so-called "deeming rule", IMHO.
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