Beldar and Simon from Stubborn Facts on that Weird Bill the Republicans Passed
Simon at Stubborn Facts and Beldar have each weighed in on that bill that initially seemed to cut the Senate and president out of the lawmaking process. I initially ranted and raved that it was unconstitutional — and then changed my mind after being persuaded otherwise by one of my commenters.
Here’s Simon:
At any rate, here’s the bottom line. I am happy to agree with Patterico on the more important point: If the Senate passes 1255 and the President signs it, 1255 will be valid law, including (setting aside the wrinkle of the triggering provision) the provisions of HR1 incorporated by reference.
I will deem that success, since Simon (like me) initially had no doubts that the legislation was unconstitutional.
Beldar is more equivocal:
I agree entirely with Patterico, moreover, that nothing said by either side on the House floor can affect the constitutionality of H.R. 1255 either way. It can give clues what may have been intended, and that can be an interesting and legitimate question. What was said on the House floor, and what may be inferred from that, however, doesn’t affect constitutionality; instead, constitutionality depends on the literal language of a statute once it’s been duly enacted.
I still believe the key sentence we’ve been arguing about was horribly — and needlessly — misleading and unclear.
Jonathan Adler already updated his post, as I noted previously. No word or update from Ed Morrissey, who arguably started the blogospheric ball rolling.
I have enjoyed the debate.
Well, as I commented at Stubborn Facts, I think the whole conditional clause is a massive problem. I’m sure there’s some jurisprudence out there on conditional legislation, but the way the conditional is phrased makes the ENACTMENT of this as law hinge on the occurrence or not of the condition. How do we know whether this is law or not. We can’t simply look at the bill signed by the President and Congress. Sure, you can incorporate by reference, but those references are always definite, and exist in a particular place… and the STATUS of the language being a law or not does not depend on those external sources.
PatHMV (299e25) — 4/5/2011 @ 6:44 pmOnce again, great job making your case, Milhouse. I’m glad to see so many people willing to change their analysis in the face of reason.
Dustin (c16eca) — 4/5/2011 @ 6:50 pmThanks again for the link. I agree, it’s been fun exploring this weirdness.
Note, however, that we’re 2 hours and change away from 12:01 a.m. D.C.-time on April 6, and the Senate hasn’t sent the message that would defuse H.R. 1255.
Beldar (cd529f) — 4/5/2011 @ 7:22 pmNor has, of course, the Senate passed HR 1255 itself, revealing the essential ridiculousness of the exercise, regardless of Constitutional issues.
PatHMV (299e25) — 4/5/2011 @ 7:45 pmI notice that several of the Texas Congressmen who voted for HR 1255 and posted a reference to that vote at their websites have removed references to the vote. Meanwhile, three that voted against HR 1255 (Paul, Poe and Gohmert) are silent on it, too.
On the other hand, the Executive Summary issued by the sponsor of HR 1255 specifically states:
If this was a political tactic, it doesn’t seem to have accomplished the goal.
DRJ (fdd243) — 4/5/2011 @ 7:57 pmI agree that Ed has to weigh in on this. No matter how you come out on it, the new information provided by Patterico and Milhouse has to be weighed by those of us who jumped in to criticize Congress.
Simon (a84579) — 4/5/2011 @ 8:07 pmPat, the conditional clause is no different than the ones found in dozens if not hundreds of laws. “The following five paragraphs will come into effect if the wholesale price of sunflower seeds rises above $40 a pound”, or “unless, by the end of 2011, unemployment has fallen below 8%”, or something like that. In this case, had the Senate passed HR1255, it would have become law immediately, but the provisions included from HR1 would only have taken effect if the Senate then failed to pass a budget proposal of its own by the 6th. That way, the Senate needn’t fear that passing HR1255 would mean surrendering its negotiating position; it could go on working on a proposal of its own, and if it came up with one by the 6th then it would have done itself no harm by passing HR1255.
Since the Senate didn’t pass HR1255, and didn’t pass any budget proposal of its own by the 6th, the question is moot.
Milhouse (ea66e3) — 4/5/2011 @ 11:24 pmBut Milhouse, that’s not what it said. It did say that IF the House failed to receive the message, the provisions “are hereby enacted into law.” Not “take effect,” or something similar, but “are hereby enacted into law.” Meaning that if the condition fails (i.e., the House receives a message), then the provisions of the bill are NOT “enacted into law,” by its own terms.
PatHMV (299e25) — 4/6/2011 @ 6:02 amSo? How is that even a distinction, let alone a difference? What does “take effect” mean, other than “are enacted into law”? “Take effect” only makes sense for provisions that are printed in the bill itself; we’ve already said that they’re enacted, now we’re saying they’ll be ineffective until some triggering event or non-event. In the case of provisions that aren’t actually in the bill, and therefore haven’t yet been said to be enacted, “are enacted” is exactly the appropriate phrase; “take effect” wouldn’t make any sense, because if they’re not enacted they have no effect.
Milhouse (ea66e3) — 4/6/2011 @ 8:59 amWell, the exact words used often make a difference, and I see a significant distinction there.
Moreover, the condition here is the non-occurence of something. The routine sort of conditions that you describe are normally defined with a fair amount of precision. The unemployment figure as reported in the most recent Report of the Department of Labor on Unemployment Statistics (or whatever the name is), for example. The Prime Interest Rate as published in the most recent edition of the New York Times. Things like that. Or perhaps a formal certification, such as the CIA may be used to combat terrorist insurgencies in a country if the President makes a written finding that the country is a terrorist-hosting state.
All of those can be determined positively and objectively. But how does one determine, and who is responsible for determining, whether something FAILED to happen?
To use a more absurd example, suppose the condition was: “If no person greater than 6 feet tall picks his nose while standing in Times Square between 1am and 4am on April 6, this bill shall be enacted into law.” How would we determine whether such a bill ever became law? Note that this is very different from a condition requiring a formal certification by an identifiable official about a fact. It would be much better if the condition were phrased: “If the President certifies in writing that no person greater than 6 feet tall picked his nose while standing in Times Square between 1am and 4am on April 6, this bill shall become law.” At least there, the existence of such a certification can be used to positively determine the the bill became law.
But for the condition imposed by HR1255, what’s a person to do, who wants to see if it’s law or not? They’d have to read all “messages” received by the House from the Senate between the date HR1255 was introduced (or passed, perhaps) and April 6, to see whether there was or was not any qualifying message.
And keep in mind that there’s no Constitutional requirement as to the particular format of appropriations bills. Suppose the Senate passed a bill which provided an appropriation for the remainder of 2011 for only, say, the Department of Defense. Would this constitute an “appropriation for the departments and agencies of the government for the remainder of Fiscal Year 2011”? That’s not entirely a hypothetical; I understand that the House is currently considering a CR which would be temporary for most departments, but which would fully fund DoD for the remainder of the year. Well, you might say, DoD is only one agency, and HR1255 says “departments and agencies,” in the plural. So suppose the CR approved by the Senate funds DoJ and DoD through the end of 2011. Does that qualify? What if it funds every agency except one? would that qualify as enacting 1255 into law?
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JD (318f81) — 4/26/2011 @ 8:09 pm