Patterico's Pontifications

3/16/2010

Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare

Filed under: General — Patterico @ 6:44 am



No, she didn’t say that, but that is the practical effect. The Washington Post reports:

After laying the groundwork for a decisive vote this week on the Senate’s health-care bill, House Speaker Nancy Pelosi suggested Monday that she might attempt to pass the measure without having members vote on it.

Instead, Pelosi (D-Calif.) would rely on a procedural sleight of hand: The House would vote on a more popular package of fixes to the Senate bill; under the House rule for that vote, passage would signify that lawmakers “deem” the health-care bill to be passed.

The tactic — known as a “self-executing rule” or a “deem and pass” — has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.

“It’s more insider and process-oriented than most people want to know,” the speaker said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”

In other words, I like it because it allows me to circumvent the Constitution.

DRJ linked this but I think it deserves elaboration. Michael McConnell says this is not constitutional:

It may be clever, but it is not constitutional. 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.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. 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.”

Constitution, Schmonstitution.

142 Responses to “Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare”

  1. “The tactic — known as a “self-executing rule” or a “deem and pass” — has been commonly used”

    Oh.

    imdw (b73f9b)

  2. P: If this is unconstitutional, why hasn’t the court ruled it unconstitutional before now? The story says it “has been commonly used.”

    Myron (a79d53)

  3. imdw: Clearly we’re on the same page, and not just today. :)

    But I really would like to know the answer to the question.

    Myron (a79d53)

  4. The Supreme Court has not ruled it unconstitutional yet because they know it would break Myron’s heart, considering how much he needs someone else to pay for his health insurance.

    Official Internet Data Office (3def0e)

  5. Data: That’s not an answer.

    Myron (a79d53)

  6. Because Moron and Imd-pathological Liar, a case has not been brought before the Supreme Court.

    Maybe in your shared delusions, the two of you think the Supreme Court can just rule on anything it wants to, and that may be your ultimate goal in packing the court with uber-lefties.

    PCD (1d8b6d)

  7. Click the link, Moron! They HAVE ruled this type of practice unconstitutional. Or — God forbid! — read the Constitution itself.

    Icy Texan (0af32b)

  8. Icy: I’m not talking about “this type of practice.” I’m talking about THIS practice that has been “commonly used.”

    Myron (a79d53)

  9. Has it ever been challenged, Myron?

    JD (b1f7fc)

  10. “The Supreme Court has not ruled it unconstitutional yet”

    Public citizen — joined by Pelosi as an amicus — challenged the GOP for failing to pass exactly the same bill in each House. Public citizen (and Pelosi) lost. So now she is following the law. See:

    http://openjurist.org/486/f3d/1342/public-citizen-v-united-states-district-court-for-the-district-of-columbia

    It has this language, from an 1890’s opinion:

    “the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. at 672-73, 12 S.Ct. 495. Under Marshall Field, a bill signed by the leaders of the House and Senate—an attested “enrolled bill”—establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73, 12 S.Ct. 495. “

    imdw (8f8ead)

  11. PCD: Let me break it down for you: If this presents the constitutional crisis that it is being portrayed as, someone would have brought a case that would have gone all the way up, or at least some of the way up (the appellate level for instance).

    That it has been “commonly used” flies in the face of that.

    Myron (a79d53)

  12. imdw: How about that. Thanks for doing the research.

    Myron (a79d53)

  13. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”

    Gaia Forbid the Democrats be forced to vote for their own bill………..

    /eyeroll.

    Techie (217a89)

  14. It is the Laurel and Hardy Show for sophists.

    JD (b1f7fc)

  15. Seriously, Myopic. How thick are you? The individual case has to be brought before the SCOTUS in order for the bill to be invalidated. Pelosi is happy to knowingly violate the COTUS, and is basically daring someone to make a case to the SCOTUS against it.

    Icy Texan (0af32b)

  16. P: If this is unconstitutional, why hasn’t the court ruled it unconstitutional before now?

    Perhaps because it’s never been challenged? However, if the process was used in Clinton vs. City of New York, and the court already ruled that unconstitutional, then Congress is brazenly defying both the Constitution and the courts.

    Some chump (050674)

  17. Techie: Personally, I’m not thrilled myself about the tactic itself, nor do I see the point of it. My understanding is that they would still have to vote on this “deem” thing, which effectively would expose how each member would vote on the original bill. (And it’s so easy to vilify, too: “Demon Pass!” :) )

    I assume it’s part of a Democratic back-up strategy if the arm-twisting fails.

    My problem is with this tendency for people to reach for hyperbole in attacking the Democratic program. If you think it’s a sneaky tactic, say it’s a sneaky tactic. There’s no need to reach for the words “unconstitutional” when the case law is otherwise. P. is a lawyer. He could have called one of his buddies in constitutional law to clarify, rather than rely on a newspaper op-ed.

    Myron (a79d53)

  18. Some Chump and Icy: As noted in the comments above yours, it HAS been challenged (by Pelosi et al, as it happens)and it was affirmed as constitutional.

    Icy, I don’t think I’m the thick one here.

    Myron (a79d53)

  19. Comment by Myron — 3/16/2010 @ 7:26 am

    The case never reached the SCOTUS. The district court did not rule that it’s constitutional or unconstitional. They just declined to get involved. They may have deemed the situation where it was used as not being controversial enough to get involved.

    Gerald A (138c50)

  20. This definitely has echoes of the reconciliation “debate.” Republicans used it right along, but when the Dems talk about doing it, it suddenly becomes the worst thing in the universe.

    Someone on a thread yesterday noted that Democratic tactics to pass legislation today will be used by Republicans tomorrow if/when they regain power. But that goes both ways.

    Myron (a79d53)

  21. Gerald: It was an appellate court decision (D.C. circuit) and it did rule on the constitutional question.

    Myron (a79d53)

  22. I don’t think; I KNOW.

    In the case imdw cites, both houses DID VOTE; and not only that, they voted on THE EXACT SAME BILL. With the health care legislation, Pelosi — as the quote of her plainly reveals — is trying to get away with not having the Senate vote at all.

    Read first, think second, then hunt & peck.

    Icy Texan (0af32b)

  23. “Commonly used”? When? Don’t just take the Honorable Speaker’s lying word for it, like the news media do.

    To me “common” would be once a month or so. Do they usually do this kind of thing with reconciliation bills? You know: A bill amending a bill that will be deemed to have been passed (and deemed to have been already signed by the President!) if the amendment passes not only in the House but in the Senate.

    How many times in the past decade has this been done? A hundred? A thousand? That would be common.

    Name two.

    Kevin Murphy (3c3db0)

  24. Icy: The appeals court case concerned the issue of “deem and pass” and whether it was constitutional. The plaintiffs who were challenging the maneuver on constitutional grounds LOST.

    I cannot be responsible for trying to make you understand something that is clear to me. This is one of many reasons I would not make a good elementary school teacher.

    And on that, I’m out. My question has been answered and I don’t see this discussion going anywhere except into further insults, since the ruling is very clear (to me).

    Myron (a79d53)

  25. I’m with Techie, what an eyeroller.

    We know the public doesn’t want us to vote ‘yes’ for this, so we won’t (giggle, giggle). We’ll just vote on something else and (giggle, giggle) and then this will pass too – Pelosi

    The Audacity of Hope.

    Corwin (ea9428)

  26. #10: that case was about a TYPO in one House’s version of a bill not invalidating it. the quote was about the Speaker and the Senate President “attesting” as to what was supposed to be there.

    Not on point at all, unless you view a 2300-page amendment as fixing typos.

    What has this got to do with treating a bill as already passed (and SIGNED) without the House ever voting on it?

    Kevin Murphy (3c3db0)

  27. But go ahead. Do this little thing. Pass it ugly and crookedly. There’s an election coming up.

    Kevin Murphy (3c3db0)

  28. The appeals court case concerned the issue of “deem and pass” and whether it was constitutional.

    Actually what they ruled on was based on a minor difference between two bills which were in fact the same bill. You’d have to be an airhead to think that’s the situation here.

    http://openjurist.org/486/f3d/1342/public-citizen-v-united-states-district-court-for-the-district-of-columbia

    Gerald A (138c50)

  29. Read slower this time. Maybe it will help.

    In that case the House & Senate both VOTED for a bill that contained EXACTLY the same language. Pelosi wants to use a tactic whereby the House DOES NOT VOTE AT ALL on the Senate bill with exactly the same language. It’s NOT the same thing, no matter how much you might wish it otherwise.

    Icy Texan (0af32b)

  30. “they voted on THE EXACT SAME BILL.”

    Actually the text of what was voted was different.

    “Pelosi — as the quote of her plainly reveals — is trying to get away with not having the Senate vote at all. ”

    Not the Senate. She’s in the House. And they will vote on the Rule. You’ll see it on cspan. The house will deem the bill passed after a vote. And then when you challenge it, Justice Harlan’s words from 1890’s will be used against the challenge.

    imdw (b40b74)

  31. The Public Citizen case only asserted that the enrolled (printed) bill presented to the President for signing is the official copy of what was passed, even though the Congressional record shows that there was a minor difference. It did not discuss “deem and pass” — in fact the word “deem” occurs only one place in the decision and in another context.

    But the defenders of this crap procedure are defending a lying piece of dung, so it does not surprise me that they will lie to do so.

    Kevin Murphy (3c3db0)

  32. [Public Citizen] challenged the GOP for failing to pass exactly the same bill in each House.

    But something was passed in each House, even if they didn’t quite match–not the Slaughter method of passing a bill in one House and then pretending it was passed in the other.

    As for the smarmy meme that something is constitutional because otherwise it would have been judged unconstitutional by now, that was the same argument used by Southerners who approved of the ruling in Plessy v. Ferguson (1896) until it was overturned in Brown v. Board of Education of Topeka, Kansas (1954).

    Official Internet Data Office (3def0e)

  33. imdw,
    I already corrected my error about it being (not) voted on by the House. And yes, you are right about it being not exactly the same; one number (ironically, a mistake that probably made that particular bill more attractive to those on the Left) was MISTAKENLY changed — not deliberately, mistakenly. I wonder if the ammendments Pelosi wants the House to vote on now contain only 1 number that is different from the Senate bill. Hmmm . . .

    Icy Texan (0af32b)

  34. I comes as quite the shock to see that dimwit and Myron are grossly distorting the substance and the findings of the case being discussed.

    JD (8f6cc0)

  35. Here’s the bottom line. The Democrats propose to federalize the entire health care industry, and to do it they can’t actually vote on the bill. They have to hide their votes.

    That tells you a lot about how much they want to hide what they’re going to be responsible for.

    But if that’s not enough, all of their arguments about their “reform” have been fraudulent. They lie about the costs of their proposals even as they try to hide who voted for it.

    SPQR (26be8b)

  36. So, is it still sausage-making if you’re really just making a nice sandwich and assuming you’ve already got the sausage?

    rtrski (b47753)

  37. “Repeal Is Possible”

    The winning R slogan for the next couple of elections, beginning immediately.

    ras (88eebb)

  38. “It’s more insider and process-oriented than most people want to know,” the speaker said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”

    Let me interpret that for the politically challenged:

    I’m not a lawyer, and even after over two decades in Congress, I can’t explain “the process” without tripping all over tongue. I almost paid for it last week when I said we have to pass the bill to find out what’s in it, but the MSM covered my bony derriere. I’d be a fool to tempt fate so late in the game, so I will do what I usually do: Smile as much as my botulism-injected mug will allow, try not to blink so quickly that my eyelashes lift me off the ground, and sing the hack politician equivalent of ‘Wishing Will Make it So.’

    But, in reality, we know the truth: What really makes things so is the fact that we control the money, so we can keep delaying and searching ways to raise the ante until we finally meet the holdouts’ prices. But — if they refuse to bought, we’ll try to destroy them.

    There. Fixed it.

    L.N. Smithee (0931d2)

  39. Jack Balkin has an interesting take which seems to be basically: (a) the constitutional objection is sound; (b) there’s a formalistic way around it which can satisfy the constitution; (c) Congress is required to take responsibility for its actions even if it doesn’t want to.

    aphrael (9e8ccd)

  40. How many times in the past decade has this been done? A hundred? A thousand? That would be common.

    Name two.

    I can name six

    The definition of unconstitutional to conservatives: something they don’t like, which has been constitutional by a Federal Court, but not by the five Republicans on the SCOTUS.

    It’s cool you guys get to define words differently than most people, but I bet those goal posts get heavy

    timb (449046)

  41. It’s amazing that all the government cheese already being doled out isn’t enough to ensure democrat majorities with absolute security. That’s what this is about: buying more votes.

    Yeah, it’s a takeover of a complicated and personal aspect of our economy. And it’s another bloat adding onto an entitlement system that is breaking down from bloat.

    But the democrats who actually live off graft don’t have to pay the penalty for that. They just need to maximize their terms and backroom deals, and let the GOP clean up the disaster. I remember the democrats showing George W Bush pushing old ladies in wheelchairs down a flight of stairs (cartoon) when he wanted to fix social security. According to the dems, it didn’t need saving. As the GOP fixes this mess (if the dems manage to pass this), we’ll see more demonizations of the GOP.

    It won’t matter to the cheese voter that these programs have consequences and are unworkable. What will matter is that the democrats gave them stuff and the GOP is taking their stuff.

    They can keep lying and lying about whether this maneuver is legal, or that cost analysis is valid. Until the actual day when all of this truly does cause an economic meltdown. Even then, a lot of imdws will be ignoring the actual matter to make bizarre points. When this destroys our system, I expect democrats to pretend this ‘proves capitalism fails’.

    Dustin (b54cdc)

  42. P. is a lawyer. He could have called one of his buddies in constitutional law to clarify, rather than rely on a newspaper op-ed.

    As is often the case, a reasonable legal argument can be made on both sides. I’m certain I could survey the (relatively small number of) constitutional law scholars I’ve interacted with and get opposing answers to this question.

    Which is to say: I don’t think the matter is as simple as you’re making it out to be. :)

    aphrael (9e8ccd)

  43. timb, your link doesn’t make the case you claim it does.

    Typical moonbat.

    Dustin (b54cdc)

  44. timb, I think there’s a substantial difference between using this mechanism to automatically incorporate a provision into the text of a bill and thereby get around procedural rules for amendments, and using this mechanism to pass a bill. So of the six listed in that pdf, I don’t think any of them are the same use of the procedure as the one being contemplated here.

    [That said, I fundamentally don’t see the difference between adopting a rule which says “bill [x] is passed” and passing bill [x]. Maybe the rules allow a rule to be adopted without a vote, and so this allows the bill to be passed without a vote … but the constitution doesn’t specify the internal rules of the House, and I would argue any bill passed according to the rules of the Hosue has passed that House as far as the Constitution is concerned.]

    aphrael (9e8ccd)

  45. imdw: Clearly we’re on the same page, and not just today.

    When Muran speaks, does imadouchebag’s mouth move at the same time?

    Dmac (ca1d8c)

  46. How many times has deem and pass been used to pass significant substantive legislation, as opposed to nickel and dime amendments?

    JD (383127)

  47. Aphrael is probably right. I don’t think this kind of bullshit would actually be knocked down in court. That’s not to say it’s constitutional. It’s not very complicated to see ‘how a bill becomes a law’ and that this isn’t that.

    I also don’t think people should dare call themselves anything with the word ‘democracy’ in it if they think this kind of naked attempt to avoid accountability for voting is at all compatible with our republic. But this is just the latest in a series of lies.

    No one really thinks this bill will increase service, improve healthcare, lower the deficit, or is what our people want. That’s what will matter in November.

    [note: released from moderation. –Stashiu]

    Dustin (b54cdc)

  48. What would happen to all of the debt ceiling increases that passed in this manner were this to be declared unconstitutional?

    JD (383127)

  49. “How many times has deem and pass been used to pass significant substantive legislation, as opposed to nickel and dime amendments?”

    Would this make any constitutional difference?

    imdw (b40b74)

  50. Where did I say anything about that, imdw? I asked a straight-forward, and quite clear question. And to save you the effort, I do not give a flying f*ck if Republicans did it. If and when they did it, it was wrong then. But, apparently, it was done on things that were minor, in comparison to this.

    JD (383127)

  51. I love how Myron cites an Ezra Klein article in WaPo to prove the tactic is constitutional. There has been no bigger lamestream cheerleader for ObamaCare’s passage than Klein, and he’s open and honest about why he likes it: It moves the nation further left than ever.

    L.N. Smithee (0931d2)

  52. IMDW, at 49: Would this make any constitutional difference?

    No.

    But it would make a political-rhetorical difference.

    There are actually at least two different substantive discussions around this issue which I think we’re conflating:

    (a) is this procedural mechanism constitutional?

    (b) is this procedural mechanism (i) politically wise or otherwise (ii) good for the republic?

    Whether or not it’s a novel procedure is informative to the second discussion: the political wisdom and/or potential for harm to the republic may hinge on novelty.

    aphrael (9e8ccd)

  53. I see timb has joined moron and imd-dumbtucas’s dementia and hysteria.

    PCD (1d8b6d)

  54. For what it’s worth – while I think it’s constitutional, I also think it’s a bad idea.

    I think it’s constitutional because fundamentally, either: (a) a bill is passed by the House when the House rules say it is, or (b) a bill is passed by the House when the Supreme Court says it is. There’s no middle ground … and the separation of legislative and judicial powers means that the House has the power to say when the House has passed a bill.

    I think it’s unwise because it’s (a) opaque enough that it’s easy to attack, and more importantly (b) because it creates a precedent which could be used to enable the House to delegate the power to pass a bill to a strict subset of the House. That is to say, structurally, if a bill can be passed by a rule under the rule adoption procedure, then there’s no reason that a rule couldn’t also grant a committee the power to pass a bill.

    That’s a bad idea; it effectively disenfranchises the public. It should be fought loudly and openly … but it should be attacked as a clear example of the House leadership denying the people’s representatives of the right to vote on a bill because the leadership is afraid of how the vote will turn out, not on the grounds that it’s unconstitutional.

    aphrael (9e8ccd)

  55. By raising as many constitutional objections as possible, the R’s put the pressure on the D’s to vote openly on the bill so as to eliminate any doubts as to its constitutionality.

    ras (88eebb)

  56. Glad that Pelosi expressly admitted that the “deeming” vote is NOT a vote on the Senate bill’s text. That admission may come in handy in court soon.

    Mitch (890cbf)

  57. “Where did I say anything about that, imdw?”

    You didn’t. That’s why I asked. I think that Pelosi is wrong, and there will clearly be political accountability and vote here that can be traced to “a vote for or against health care reform” by proponents and “a vote for or against Obamacare” by opponents. So that I’m not interested in.

    What I’m interested in is the constitutionality. So I was trying to figure out which conversation you wanted to have.

    imdw (8222e7)

  58. I think that we, the rebellion, should promise to repeal this insanity using exactly the same tactics used to pass it.

    Vivian Louise (643333)

  59. Here’s a hint, imdw. I am not interested in having a “conversation” with you, unless you plan on acting differently than your nature.

    apharael – Or, people could question both, though I tend to agree with your assessment.

    JD (383127)

  60. One wonders where Ron Paul is in this conversation with all his blather about “following the Constitution” when declaring war, the overriding import of which I’ve never heard him explain.

    L.N. Smithee (0931d2)

  61. I see timb has joined moron and imd-dumbtucas’s dementia and hysteria.

    timb has proven repeatedly that he’s in a state of dementia and hysteria all his own.

    Dmac (ca1d8c)

  62. timb, your link doesn’t make the case you claim it does.

    Typical moonbat.

    Comment by Dustin

    If you mean “the link you provided was to a CRS report on how self-executing have been used in the past and have been used in the present and “Self-executing rules are still employed on matters involving House-Senate relations. They have also been used in recent years to enact significant substantive and sometimes controversial propositions. Examples from the Congressional Record will illustrate:…” and then provides six examples, then you are correct.

    If on the other hand, you don’t think it says what it says, then I’s say that says more about than it does me or the Congressional Research Service.

    timb (449046)

  63. LN – Some bugf*cknutz Nor Laupians would just complete the circus.

    JD (383127)

  64. You cannot debate either of these individuals honestly – I’m still waiting for Muran to admit that his claims about Kos’s pollster being objective were proven to be fraudulent, while imadouchebag still won’t admit to insinuating that the members of the GOP are closet pedophiles. All they ever do is feign ignorance about their own prior comments, and then immediately attempt to change the subject.

    Dmac (ca1d8c)

  65. Ok, so it’s constitutional and has been used before (to fix some typos, IIRC) so using it to pass a 1 trillion health industry takeover is perfectly legit and above-board.

    Got it.

    Still not gonna make anybody any friends.

    mojo (8096f2)

  66. .

    ==========================================
    Nancy Pelosi has indicated that she intends to consider using some rather clearly unConstitutional chicanery to get ObamaCare passed, which will avoid actually putting it up for a vote at all.

    Even if you support ObamaCare, you should realize that this kind of action, of bypassing the clear purpose of Congress, is a very bad step, and is a sign of our elected representatives blatantly thumbing their noses at the electorate.

    If this passes, it will be a wholly despicable act on the part of the Democratic leaders.

    I think it has to be made clear that the Democrats will not merely lose, but lose BIG if they attempt to do this. Not just in the next election, which they appear to be taking in stride, but for an extended period of time.

    I’ve set up a petition to that end, please read it and consider signing it, and encourage others to sign it.

    Petition to hold Democrats responsible

    ============================================

    .

    N Bretagna (79d71d)

  67. Dustin – All timb did was provide examples, as evidenced by the CRS. You can have legitimate disagreement over whether or not the examples are in any way comparable to what is being proposed this time, but his link does pretty much exactly what he said it did.

    JD (383127)

  68. That caused me physical pain to type that.

    JD (383127)

  69. What I’m waiting for is some smartass Democrat Shyster to extrapolate that all Democrat House members are deemed reelected by voting for this Obamanation.

    PCD (1d8b6d)

  70. JD, you may denounce yourself for causing yourself such pain.

    PCD (1d8b6d)

  71. Isn’t this type of action what we originally revolted against?

    I’m pretty certain that it is.

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    NavyspyII (df615d)

  72. NavyspyII – It is certainly why the 2nd Amendment was included.

    JD (383127)

  73. Isn’t this type of action what we originally revolted against?

    From the Declaration of Independence:

    “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation. . .”

    Official Internet Data Office (3def0e)

  74. Why not just use “reconciliation” for all bills now and avoid the problem with votes?

    I mean, really, the House just has to pass a resolution that it “deems” the Senate to have acted.

    The Senate can then just have a 50%+1 vote and we’re all set.

    Seriously, why not just have this all the time? Why all the posturing on how bad this is?

    Sure it’s a revolutionary upsetting of tradition, but tradition is neither right nor wrong.

    The idea of a Senate representing the states as opposed to the House representing the people is archaic as well. Just have majoritarian rules in both houses, or, better yet, do away with the Senate and let the people rule directly through their expressed will in the Speaker to animals humans and 218 of her loyal cohorts.

    I truly don’t understand the problem with this direct democratic representation. It would be much more efficient and less stress-inducing. We wouldn’t have these years- and decades-long struggles to pass popular legislation like this Health Care Reform act.

    Next up: Congress simply redefines the Constitution to mean “what I want it to mean.”

    What’s to stop them? Why doesn’t Congress just expand the Supreme Court to 250 members? That would certainly reduce the ability for them to get anything done; it would give the Congress critters years to wreak their mischief.

    Some of you are taking the death of our Republic way too seriously.

    steve miller (0fb51f)

  75. Seriously, why not just have this all the time?

    We will. Once the precedent is set, it will be easy to use, and then when the other side takes power they’ll ratchet it up, and then when the first side gets back into power, they’ll ratchet it up even further. We’ve seen that pattern with the filibuster and with nomination holds over the last score years; there’s nor eason this would be any different.

    aphrael (e0cdc9)

  76. Thanks for such an ugly gloomy prediction, aphrael.

    JD (383127)

  77. It could be unconstitutional under Rule-7.62, para 5.56!
    YMMV.

    AD - RtR/OS! (02b3ae)

  78. “Isn’t this type of action what we originally revolted against?”

    Yeah all that health care reform has done is pass several committee votes in the House, then pass the by a vote of the House, pass by several committee votes in the Senate, then pass by 60 votes in the senate, and now the House will vote in on it one more time.

    Exactly the sort of tyranny our founding fathers wanted to prevent.

    imdw (de7003)

  79. “The Senate can then just have a 50%+1 vote and we’re all set. Seriously, why not just have this all the time? Why all the posturing on how bad this is? ”

    If the founding fathers wanted a majority vote to be enough in each house they would have put that in the constitution.

    imdw (de7003)

  80. JD: i’m gloomy about politics; ISTM that the leadership of both parties has decided that they’d rather fight each other than serve the public.

    aphrael (e0cdc9)

  81. IMDW: the fact that the vice president is empowered to break ties is a pretty good suggestion that the framers contemplated ties being possible.

    that said, the Constitution does not specify the rules of the houses; it merely requires that a bill pass both houses.

    How do we know what it means for a bill to pass a given House?

    aphrael (e0cdc9)

  82. timb (#41)–

    You show 6 examples of self-executing rules that made simple amendments to House bills, rather than go through the formal amendment process. “Special Orders” as they are called are used to speed up the process.

    This is rather different, and you and Pelosi now it. This “special order” is to avoid formally voting on a Senate-passed bill that they need to pass unchanged, but haven’t the votes to do so.

    Hell, we were already in cloud-cukoo-land when they decided to use Reconciliation to make non-budget changes. Now they find that even their cheating end-around won’t work and they need to cheat on the cheat.

    And that, they call “common.”

    And you want to prove them right!

    Kevin Murphy (3c3db0)

  83. It’s cool you guys get to define words differently than most people, but I bet those goal posts get heavy

    anyone else need a new irony meter after reading this gem?

    redc1c4 (fb8750)

  84. “IMDW: the fact that the vice president is empowered to break ties is a pretty good suggestion that the framers contemplated ties being possible.”

    And they also said when supermajorities were required. And wrote federalist papers about them.

    So maybe it wasn’t such a funny joke.

    imdw (8f8ead)

  85. Here’s a question posed over at Volokh:

    Can the House vote to adopt a rule which “deems” that a particular bill has been passed, even if that particular bill has not been passed? If so, are there any limits to the adoption of House rules which eliminate voting on bills? For example, could the House at the start of a session adopt a rule which states that there will be no voting by individual members, and that the House during the next two years will “deem” to have been passed whatever the Speaker of the House deems to have been passed? Is the question justiciable?

    If not, what’s different?

    Kevin Murphy (3c3db0)

  86. And they also said when supermajorities were required.

    Sure. But they also did not prohibit either house from adopting rules requiring supermajorities in other cases. Nor, for the most part, did they specify the rules of the legislative houses in any detail.

    So the Senate is free to require supermajorities. It’s also free to do things by unanimous consent with no vote and therefore no political accountability.

    aphrael (e0cdc9)

  87. Kevin – a vote on a rule which deems a particular, referenced bill to have been passed is no different than a vote on the bill itself.

    The two differences I see for the delegation-to-the-speaker rule are that

    (a) the rule doesn’t reference a particular bill and therefore it’s hard to construe a vote for the rule as a vote for the particular bill;

    (b) the rule delegates legislative power to a portion of the house rather than the full house.

    My sense is that it’s probably justicable for the same reasons the legislative veto was justicable.

    aphrael (e0cdc9)

  88. The definition of unconstitutional to conservatives: something they don’t like, which has been constitutional by a Federal Court, but not by the five Republicans on the SCOTUS.

    It’s cool you guys get to define words differently than most people, but I bet those goal posts get heavy

    -timb

    JD, that’s what I was disputing. timb’s argument isn’t supported by the fact that this procedure has been employed for things greatly unlike this legislation. The right simply isn’t moving the goalposts on this. This is simply wrong and a failure of government to require the consent of the people to make huge changes. A failure to remain accountable for their decisions.

    As you say, if the right did this, it would be just as terrible and intellectually honest republicans would not stand for it. Just because timb can show this procedure has been used for something unlike this does not prove his argument.

    Dustin (b54cdc)

  89. aphrael, now that they (apparently) no longer want to tie the “deeming” to the outcome of the Senate vote on reconciliation, I think what the House is doing is probably Constitutional. Or at least non-justiciable as a political matter.

    As long as the effect is that the Senate bill can go to the President and be signed (or vetoed) and the Senate can then vote the Reconciliation package down, it passes muster.

    I also think that it is an ugly suicide. Lose-lose is quite a bit up from here.

    I also take umbrage to Pelosi claiming that this is something that is “common.” Unless “common” now means “unique.” If it were common to do this much chicanery, they’d all have been up against the wall long since.

    Kevin Murphy (3c3db0)

  90. “If not, what’s different?”

    I think the difference is in the delegation. In the current case, a member knows what they’re voting on. But the hypothetical, a member doesn’t know what will pass.

    So you could take all of a years worth of legislation and just have one vote on it that deems each one of them passed. But that would have to come at the end, when we knew what they were.

    imdw (05d41e)

  91. Note how unremarkable past “Nuclear Options” seem in comparison.

    Kevin Murphy (3c3db0)

  92. Whether or not the supreme court rules something constitutional or unconstitutional has practical effect, but is not the end of the story.

    There are plenty of bad supreme court decisions – Roe v. Wade coming immediately to mind. Simply b/c the supreme court (which, after all, is made up of human beings with ideological biases) declares something constitutional, does not make it logically so. As a practical matter, it is constitutional so long as the executive, congress and people do not challenge the court, but it is not in and of itself the end of discussion.

    in this case, it is likely true that the Courts will not get involved, calling this a political question, so as a practical matter there will be no way to stop the use of this procedure in Court.

    That, however, does not make what the Slaughter rule “constitutional”. A straight reading of the constitution would seem to require a vote on the bill itself before such bill can be considered enacted. that, however, is logic, which often has no standing in political discourse.

    Regardless, it does not matter. If there are democrat reps dumb enough to believe that their constituants are too stupid to realize that voting to “deem” something passes is the same as voting to pass something, they are going to be surprised in November.

    And, to the lefties out there – doesn’t it trouble you that the congress is too afraid to even directly vote on the bill? If the bill is so great, why is that?

    And, a further question, after this precedent is set, and the GOP controlls both houses, you are going to have no problem with using these bitter, partisan methods to pass things?

    Monkeytoe (e66874)

  93. Still waiting for the usual suspects in the MSM to deem the bill “deeply unpopular”…

    (see what I did there?)

    mojo (8096f2)

  94. Myron sez:

    “P. is a lawyer. He could have called one of his buddies in constitutional law to clarify, rather than rely on a newspaper op-ed.”

    Uh, I quoted an op-ed from Michael McConnell, a Stanford constitutional law professor and former judge for the 10th Circuit Court of Appeals.

    You’d find it more authoritative for me to call one of my “buddies in constitutional law”?

    Patterico (c46daa)

  95. P – that one goes positively manic about “healthcare reform”.

    JD (5ff464)

  96. Patterico, what? You expect Myron to actually read something before spouting off? Sheesh, you gotz high standards …

    SPQR (26be8b)

  97. So let’s all wait to hear Myron apologize for being, um, a bit fresh. Not going to happen, to quote a recent President.

    Nice riposte, Patterico.

    Eric Blair (c8876d)

  98. “And, to the lefties out there – doesn’t it trouble you that the congress is too afraid to even directly vote on the bill? If the bill is so great, why is that?”

    I think they’re doing this for the conditional benefit – this way they guarantee that the changes and the bill pass in one go. Plus they’re logrolling in the student aid reform too.

    imdw (e870b9)

  99. lol, imdw is pretending they are doing this just to be efficient.

    They are looking like tyrants, but as a benefit, they can make sure it all passes in “one go” (huh?) and get student aid “reform” without having to debate it much.

    Yep, that’s really what imdw thinks, honest to God.

    Dustin (b54cdc)

  100. I can’t imagine typing this either, but

    thanks, JD

    As for Dustin,

    bills are bills. Just because you hate this one and have no strong feeling on dropping a CIA provision on early retirement (one of the historical examples) doesn’t mean they don’t have to go through the same process to become a law.

    What IT does show is how little the House trusts the Senate to pass a reconciliation bill, i.e., not at all. Nancy can’t get this bill through the House on just the promise that the Senate will fix the Cornhusker Kickback in reconciliation, she has to actually pass both at the same time.

    Washington’s a weird place. What’s the quote: “The X party are our opposition. The Senate is our enemy.”

    Still calling it “unconstitutional” when it’s not was wrong and over the top. The “moving of goalposts” comment should be rightfully directed at the guy who wrote that it was unconstitutional, and not directed at the people here at large. It was an unnecessary rhetorical and hyperbolic point and detracted from the larger point.

    timb (449046)

  101. Yep, that’s really what imdw thinks, honest to God.

    imdw isn’t even honest with themselves, so i doubt God gets more consideration…..

    besidese, you’re being rather loose with the term “think” and what it posts. 😀

    redc1c4 (fb8750)

  102. I am not in physical pain, since I don’t loathe JD nearly as much as he does me.

    timb (449046)

  103. “lol, imdw is pretending they are doing this just to be efficient.”

    It’s not efficiency. Read what I wrote again.

    imdw (017d51)

  104. It’s not efficiency. Read what I wrote again.

    no thank you: once is philosophy, twice is perversion.

    redc1c4 (fb8750)

  105. Well, guess what? There is no reconciliation bill yet ( the one currently posted is a place holder, copy of a bill that’s four months old now ).

    Why no bill? Because their “fixes” fail the CBO scoring. Reconciliation rules require that the reconciliation bill reduce the deficit over the bill(s) being reconciles. The House bill fails so far.

    There are several things that Democrats are up against when it comes to the CBO score. The most important is that, based on reconciliation instructions, the “fix” bill must be shown to reduce the deficit by at least $1 billion. The challenge is, that’s after assuming that the Senate bill is law. In other words, the reconciliation bill can’t claim any of the deficit reduction from the Senate bill, but rather it must reduce the deficit relative to the Senate bill. Yet the changes that are being talked about will cost a lot of money. This includes eliminating the “Cornhusker kickback” and offering enhanced Medicaid subsidies to all states, increasing subsidies for the purchase of insurance, eliminating the so-called “donut hole” on Medicare prescription drug benefits, and whatever else they put in the bill. At the same time, delaying until 2018 the enactment of the “Cadillac tax” would be scored as a reduction in revenue, and thus add further to the deficit. They’d have to make up the gap through tax increases as well as try to siphon “savings” away from the student loan bill. (More on that here.) But evidently it seems like they’re running into trouble on this front.

    Keystone Kops Pelosi.

    SPQR (26be8b)

  106. I am not in physical pain, since I don’t loathe JD nearly as much as he does me.

    as well it should be. you, or at least your espoused beliefs, are loathsome. JD? not so much….

    redc1c4 (fb8750)

  107. “Reconciliation rules require that the reconciliation bill reduce the deficit over the bill(s) being reconciles.”

    Has this changed since the tax cuts passed with reconciliation?

    imdw (2b5cca)

  108. […] here: Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare […]

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  111. You’d find it more authoritative for me to call one of my “buddies in constitutional law”?

    P: Actaully, I might have found it most authoritative if you had looked up the relevant case, a la imdw, since you’re a lawyer and all.

    And then, based on that, decried that the procedure is unconstitutional and then acknowledge that your opinion is at variance with precedent.

    That would have been ideal, from my perspective, but then you might have risked losing a Talking Point.

    Myron (6a93dd)

  112. And that’s “actually.”

    Myron (6a93dd)

  113. doesn’t it trouble you that the congress is too afraid

    Monkeytoe, the left has been complaining for years that the Democrats in Congress don’t have a single spine to share among them.

    aphrael (e0cdc9)

  114. Has this changed since the tax cuts passed with reconciliation?
    Comment by imdw — 3/16/2010 @ 1:29 pm

    You’re the Congressional historian/expert –
    why don’t you tell us?

    AD - RtR/OS! (02b3ae)

  115. And as predicted, Patterico, Myron ducks and moves the goalpost: Comment by Myron — 3/16/2010 @ 1:47 pm.

    Face it, Myron, you got caught not bothering to read at all.

    SPQR (26be8b)

  116. Oh, he reads, I saw his lips moving…
    It’s the comprehension thingie that is the roadblock.

    AD - RtR/OS! (02b3ae)

  117. Myron – did you bother to read it, or did you just take imdw’s assessment as unassailable twoof? Because many people above pointed out that the case does not say what imdw claims.

    Apparently former judge’s opinion’s are to be discarded because you don’t agree with them?

    JD (8c105e)

  118. There is no reconciliation bill yet . . because their “fixes” fail the CBO scoring. Reconciliation rules require that the reconciliation bill reduce the deficit over the bill(s) being reconcile[d]. The House bill fails so far.

    If so, there will be no reconciliation and no Slaughter shell game. The House may either pass the Senate bill, as is, or go home.

    Official Internet Data Office (3def0e)

  119. […] Against Obamacare Today Patterico’s Pontifications: Telling the Truth About Health Care and Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare and The Constitutionality of the Slaughter Solution and Health Care 101 The Lonely Conservative: No […]

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  122. […] Against Obamacare Today Patterico’s Pontifications: Telling the Truth About Health Care and Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare and The Constitutionality of the Slaughter Solution and Health Care 101 The Lonely Conservative: No […]

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  123. Because many people above pointed out that the case does not say what imdw claims.

    And many other people, JD — namely folks outside of this Web site, are citing the D.C. case as directly relevant to the issue of “deem and pass.” Even the Republicans are citing the case to try to bludgeon Pelosi.

    Myron (6a93dd)

  124. All: Anyway, if it’s truly unconstitutional, why all the fulminating? You should be happy if the Dems use this approach, b/c the court will just throw it out, right? You should be ENCOURAGING it.

    Myron (6a93dd)

  125. Myron – I can’t tell you how happy it makes me to have progressives tell me how conservatives should think and act. It shows how limited you are in your education and brainpower and never ceases to amuse.

    Don’t ever change, cupcake!

    daleyrocks (718861)

  126. “I can’t tell you how happy it makes me to have progressives tell me how conservatives should think and act.”

    It’s like the concern trolling over the passage of this bill. It doesn’t take long before it becomes a bore.

    imdw (017d51)

  127. imdw:

    And, yet, you’re still here.

    Ag80 (f67beb)

  128. Ag80, trust me: this TLE is not bored.

    Eric Blair (c8876d)

  129. Myron, that the Democrats would consider a process that casts such doubt on the validity of the enactment shows utter incompetence. Only a moron like Pelosi would use a procedure that invites a constitutional challenge to the legislation for no good reason.

    That you wander around defending it shows only that you share her incompetence.

    SPQR (26be8b)

  130. Now, why didn’t they use this unconstitutional procedure for good and popular ideas?

    I don’t know why the democrats don’t just come out and admit “this isn’t what the people want, so we are not going to deal with health care this year”. They would instantly gain a lot of support from the people, just for saying “we don’t do things without the consent of the governed”.

    Instead, we have an unconstitutional procedure, whether timb can cite something being done the wrong way before (or not).

    Dustin (b54cdc)

  131. It is getting more clear that the Democrats think they are running a banana republic. The clues include their weird legislative tricks and their fiscal policies.

    SPQR (26be8b)

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  137. […] Practicing To Do Evil Patterico’s Pontifications: Losing the House Over Health Care and Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare and ObamaCare: Lazy WaPo bloggers relay bogus Dem talking point and The Constitutionality of the […]

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  138. […] the Courts Allow an Unconstitutional Action to Stand? and Losing the House Over Health Care and Pelosi: I Like This Unconstitutional Sleight of Hand for Passing ObamaCare and ObamaCare: Lazy WaPo bloggers relay bogus Dem talking point and The Constitutionality of the […]

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