From the diaries by Erick
Lefty pundits nationwide are currently dismissing GOP objections against the Democratic “deem and pass” health care strategy, on the ground that the GOP has itself used “deem and pass” for many years. Robert Schlesinger, opinion editor at U.S. News and World Report, writes:
The GOP used self-executing rules [i.e. "deem and pass"] 35 times in 2005-2006 alone (the last time the Republicans ran the House). Back then Democrats sued to end the practice and the GOP defended it in court. Ornstein asks: “Is there no shame any more?” Well … no.
It’s true that the GOP has used “deem and pass” before. Big deal. I’ve used a gun before, but that doesn’t mean I fired it like the maniac from Fort Hood. When the GOP used “deem and pass,” that was done legitimately. In contrast, the imminent “Slaughter Solution” would use “deem and pass” in a completely unconstitutional manner.
Democrats cite the GOP’s use of the so-called “Gephardt Rule” as precedent for the Slaughter Solution. In a nutshell, here’s how the Gephardt Rule works. There is only one legislative measure according to the Gephardt Rule: a joint resolution. Yes, folks, a joint resolution can be passed by both houses and be signed by the president, and then it has the force of law. According to the Gephardt Rule, the joint resolution is generated as follows: the House takes a single vote that passes both a (non-legislative) continuing resolution in addition to the (legislative) joint resolution, although the joint resolution is merely “deemed” to have passed instead of passed explicitly. The joint resolution then goes to the Senate. If the Senate approves, the President signs the joint resolution, and it thus becomes law. Everything is perfectly constitutional, though a bit dodgy.
Contrast the Slaughter Solution which involves approval of not one but two legislative measures in a single vote. In that single vote, the House approves a Reconciliation Bill explicitly, while implicitly deeming that the Health Care Bill has passed too. Maybe that’s not so bad, but what happens next is much worse. The president would then sign the Health Care Bill, without signing the Reconciliation Bill that the House had just explicitly voted for.
According to the Gephardt Rule, all of the legislative stuff that the House votes for is approved verbatim by the Senate and signed by the President. But according to the Slaughter Solution, only some of the legislative stuff that the House votes for becomes law, while the rest dangles in legislative limbo. That is a flagrant violation of Article I, Section 7 of the Constitution, not to mention the Court’s interpretation of Article I, Section 7 in the case of Clinton v. New York.
In summary, “deem and pass” may not be such a stinky strategy, especially for minor bills. But Obamacare is no minor bill. More importantly, It’s the unconstitutional way that Dems want to use “deem and pass” that is stinking up the place.
And the bottom line is this: as far as I know, never in U.S. history have two bills been approved simultaneously by a single House vote, with one of those bills then going to the Senate and the other going to the President for signature. Certainly, never in U.S. history have two bills been approved simultaneously by a single House vote, where the bill going to the President was intended to be amended by the bill going to the Senate. Such schemes are unconstitutional, and allow the House to speak with a forked tongue. The President cannot constitutionally approve only part of the legislation that the House votes for; he must approve all or nothing.
Steve Maley
KnightsofMalta
Dan Spencer
Moe Lane
Dan McLaughlin
Let's not make their mistake
Beaglescout (Diary) Thursday, March 18th at 8:01AM EST (link)The Gephardt Rule was a pig. No amount of lipstick can fix that. Republicans can do better than to engage in such legislative sleight of hand. As tea partiers and other strict constitutionalists flood into the Republican Party and into office, we/they must remember to adhere to the rules whether they work to our advantage or disadvantage.
“A nation which can prefer disgrace to danger is prepared for a master, and deserves one.”
55555
Scope (Diary) Thursday, March 18th at 12:27PM EST (link)Two wrongs don’t make a right, and all that.
If they try "deem-and-pass" and it's struck down,
Flagstaff (Diary) Thursday, March 18th at 11:35PM EST (link)would that mean some of the previous bills passed that way could be overturned on the same grounds?
“The press is so powerful in its image-making role that it can make a criminal look like he’s the victim and make the victim look like he’s the criminal. If you aren’t careful, the newspapers will have you hating the people who are being oppressed and loving the people who are doing the oppressing.”– Malcolm X, Audubon Ballroom, December 13, 1964
Mark Levin: "No. it's prospective," Not retrospective nt
redneck_hippie (Diary) Thursday, March 18th at 11:41PM EST (link)Although there are plenty of naysayers about this,
Flagstaff (Diary) Friday, March 19th at 9:29PM EST (link)I think Levin will have a good chance of prevailing. The language is pretty clear. It must have been written this way for a reason, and the Constitutional scholars on the Court will know exactly what that reason was.
“The press is so powerful in its image-making role that it can make a criminal look like he’s the victim and make the victim look like he’s the criminal. If you aren’t careful, the newspapers will have you hating the people who are being oppressed and loving the people who are doing the oppressing.”– Malcolm X, Audubon Ballroom, December 13, 1964
When the enemy is in range, so are you!
Achance (Diary) Thursday, March 18th at 10:56AM EST (link)Republicans have a lot of trouble with this notion. They have so little experience in actually governing and so little ability to get the shapeless mass of a government to actually do anything, that they constantly want to use dirty tricks they’ve seen the enemy use and to dream up new toys to play with to try to get what they want, e.g., the nuclear or “constitutional” option on appointments. Trouble is, they never think about what happens if the other guy comes to power and starts playing tit for tat. Lots of people thought it was a really good idea to do away with the filibuster when we had the Senate. How do you like that idea now?
In Vino Veritas
Uh, No, That's Not What We Wanted To Do
IJB Thursday, March 18th at 11:29AM EST (link)The GOP wanted to eliminate the Filibuster ON EXECUTIVE AND JUDICIAL APPOINTMENTS ONLY. Frankly, I think Filibusters are these are unconstitutional on its face, and should be eliminated in perpetuity immediately.
Anyone on our side who is trying to claim that the GOP “wanted to do away with the Filibuster” is total mis-characterizing it, and is basically carrying the water for the other side.
Please, everyone, stop this.
IJB, I know what we were trying to do.
Achance (Diary) Thursday, March 18th at 11:45AM EST (link)The Constitution doesn’t say anything other than the Senate can make its rules for debate. Maybe I’ll start following you aroud the board and making smartass corrections to any vagueness in anything you write. Think you can stand the scrutiny?
In Vino Veritas
Yes, Art, I *DO* Think I Can Stand Up To The Scrutiny
IJB Thursday, March 18th at 12:05PM EST (link)You can too, *except* when you put your foot in your mouth. At your age, shouldn’t you try to not compound the problem?
Sheesh…
Of course, the Constitution Does Not Say
Raven (Diary) Friday, March 19th at 12:49AM EST (link)That the Senate need “Approve” any appointments. Only that they can offer their opinion.
Granted, now is not exactly the time to be pointing that out to the legislators…
“If you do not have a sword, sell your cloak and buy one.”
Luke 22:36
What is advise and consent then?
Beaglescout (Diary) Friday, March 19th at 10:10AM EST (link)Consent requires approval of some sort. Certainly it is possible to disapprove and yet consent. That is the nature of compromise. But when one party continuously imposes things the other party disapproves of, and yet the second party is unable to do anything other than consent, then there is oppression.
“A nation which can prefer disgrace to danger is prepared for a master, and deserves one.”
thx, Andrew . . .
denniswayne Thursday, March 18th at 11:21AM EST (link)Unfortunately, the argument has been over-simplified down to whether the use of “deem and pass” is constitutional or not. It is . . . but not in any willy-nilly fashion, or it could become license to bypass the Constitutional protection of passage in both houses.
The crux of the issue is in its application in this case. There is a interesting debate re this over at volokh. In the comments pay particular attention to those of jrose and mls. The short of it is that we have to see the specific procedural language of the rule before fully assessing it, and secondarily, it may very well be a blurry area with no clearly controlling precedent.
An additional disturbing detail is that in matters of the internal workings of another branch, the court has tended to avoid becoming involved unless such workings intrude on the powers of another branch. There is no way of knowing what would happen here until the rule is passed and acted upon, and then a plaintiff is given standing to contest the action in federal court. Furthermore, it’s entirely possible that, given the possible obscurity, there may be a series of conflicting opinions up to the SCOTUS.
Democrats need to understand this could very well end up being a Phyrric victory – this could go on and on, sucking all the oxygen out of Washington while the public’s more pressing business goes neglected. Not a good place to be come November.
Deem and Pass clearly breaks Art 1 Sect 7
Beaglescout (Diary) Friday, March 19th at 10:45AM EST (link)The relevant language reads: “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.”
So if a congresscriminal votes for thing 1 that “Deems” thing 2 to pass the criminal has not voted for thing 2. This breaks the constitution on its face.
In the Gephardt version, thing 1 was not legislation while thing 2 was. In the Slaughter version, thing 1 and thing 2 are mutually contradictory pieces of legislation.
Neither one is legal. The Slaughter version is stupider, because it passes internally inconsistent legislation that needs to be fixed before can be implemented. Who will fix it? Nobody knows! Is this the kind of incompetence we deserve from our legislators, to create internally inconsistent legislation that cannot be implemented as is? In a business, all these clowns and crooks would be fired and prosecuted for any crimes they committed. Let’s promise to do that to them when the people get their true representatives back in office.
“A nation which can prefer disgrace to danger is prepared for a master, and deserves one.”
Neither Party Should Use This Method
jaybo (Diary) Thursday, March 18th at 11:33AM EST (link)I am glad that we are finally looking at these matters as Americans. I think that any republicans that used this type of “procedure” should be questioned as well.
This is not a republican verses democrat subject. It is a right verses wrong subject. Now at least future republican congresses will not be able to hide behind these shenanagans in the future.
I agree with your sentiment, however . . .
denniswayne Thursday, March 18th at 12:14PM EST (link)The Constitution explicitly provides for each house to enact its own procedural rules. The “deem and pass” rule was essentially designed for efficiency, and it has typically been applied very narrowly in budgetary matters where there is one bill which both houses have previously endorsed. The problem here is not the use of such a rule per se, but rather the *abuse* of such a rule.
IIRC, in the past Republicans have been accused of such an abuse, and in fact, Pelosi et al argued in court against the use of “deem and pass” in that instance not because the rule is an abuse in and of itself, but that the rule was being abused. And if memory serves, the Democrats had a legitimate point.
It is a subtle but important distinction. There are a large body of rules in both houses, certainly a number of which are subject to abuse. The solution is not elimination of the rule(s), but prevention of the abuse thereof.
Aside from the legalities, the critical political reality remains that the public will see this for what it is, an abuse.
What Is The Best Way To "Cure" an Addiction?
jaybo (Diary) Thursday, March 18th at 12:22PM EST (link)Why does the House of Representatives need to have a Deem and Pass rule? I have not heard yet any justification that would make sense.
Further, it is a narcotic for any congressperson that does not have the scruples to use this rule properly. It flies in the face of the founders ideas of checks and balances. The constitution expected the different branches of government to be accountable for their actions. This goes against that idea.
I would like to hear one reason why this rule is necessary.
in reply . . .
denniswayne Thursday, March 18th at 1:21PM EST (link)I’m sure I won’t do justice summarizing my readings from much more knowledgeable sources re this rule, so with that caveat . . .
It typically is limited to budgetary considerations. The House passes a bill, the Senate passes a bill, there is a change to a budgetary line item in the bill but the change is not substantive to the law itself, and so the House “deems and passes” the change. The premise is that the effect is sufficiently minor so as to not require repeating the House vote process, i.e., the outcome is foreknown. It is very unusual for this to be controversial. All clearly within the flexibility the Constitution provides for each house to create its procedures.
But as Andrew explained, what the Democrats are attempting to do with this rule now is to use it in a way it has never been used for before and for which it was never intended to be used. I.e., as a device to reconcile 2 opposing bills without voting on both. It is this different use that may conflict with the Constitutional language in Article I.
You might look at it this way: In the Senate, the reconciliation process is limited by the Byrd rule to specific financial effects. It acts as a constraint on bypassing normal Senate process in order to change a bill. This is what constrains the abortion language in the health care bill from being resolved through reconciliation, per the expected ruling on the question by the Parliamentarian. However, the Vice-President could overrule the Parliamentarian and essentially construe the Byrd rule to be applied differently. The rule is not the problem, and in fact it is very useful. But were the VP to do this, it would be a blatant abuse.
Also, bear in mind that “any congressman” has no power to employ such an abuse. Such a rule must originate in and pass the Rules Committee and then can only be used by the Speaker in agreement with the Senate Majority Leader. Regrettably, what we have now is Congressional leadership who apparently believes that in this instance the end justifies the (corrupting) means.
I Still Do Not See The Justification....
jaybo (Diary) Thursday, March 18th at 2:03PM EST (link)Denniswayne,
You said that, “It typically is limited to budgetary considerations. The House passes a bill, the Senate passes a bill, there is a change to a budgetary line item in the bill but the change is not substantive to the law itself, and so the House “deems and passes” the change. The premise is that the effect is sufficiently minor so as to not require repeating the House vote process, i.e., the outcome is foreknown.”
Okay, so why is it so hard to just go ahead and cast another vote? It really seems to me to be a short-cut that is motivated by laziness on the part of the representatives. Why not simply strke the rule and go back to casting a vote?
I still have not heard an explanation as to why this rule is necessary.
Final Comments
jaybo (Diary) Thursday, March 18th at 2:35PM EST (link)I think that this latest abuse is proof that the House of Representatives is not capable of being able to handle this type of rule responsibly. In any private company, when management finds out that the employees are abusing a company policy, wise managers will recind the policy.
The last time I checked, representatives are supposed to be working for us…..therefore………
you betcha . . .
denniswayne Thursday, March 18th at 3:05PM EST (link)though to be more precise, this abuse is specifically at the hands of the Speaker, the Rules Chairperson, the Senate Majority Leader, and the President. No one else has the authority, let alone would dare attempt, such a move.
a bit more . . .
denniswayne Thursday, March 18th at 3:03PM EST (link)My understanding is that this rule is just to improve efficiency in the operation of the House. As I explained before, it is designed to expedite minor adjustments in an already passed bill which have no substantial bearing on said legislation. If there is no important departure from what has already been authorized by both houses, then there is not an issue. And, in and of itself, it is entirely Constitutional.
Your understanding is somewhat flawed
JSobieski (Diary) Thursday, March 18th at 3:15PM EST (link)You are absolutely correct that the House is free to add all sorts of things to a bill.
A bill could be limited to “A.”
Nothing stops the House from adding B, C, and D to a bill that previously included just A.
However, if the House a single vote approves A and B (i.e. the Senate Bill plus the “fixes”) it is aboslutely Unconstitional for the President to sign A into law without signing B into law.
A President cannot pick and choose portions of a bill that will be signed.
The law making process works in terms of a unit of work referred to as a bill. If the House combines components into a single vote, then the President must either sign or not sign that combination of components that was voted in.
Since the Senate will not have voted on the House fixes, it is in fact unconstitutional for the President to sign the Senate bill into law if the House vote on the Senate bill is combined with the passage of a modification to the Senate bill.
The same piece of paper, no additions and no substractions, must be approved by both houses before the President can sign it.
The President cannot constitutionally sign HCR unless the House passes the Senate bill separately, or unless the Senate passes the exact same Senate fixes.
Put another way:
The Senate voted for A
The House votes for A + B
President signs A into law
This is unconstitutional for reasons similar to why a line item veto is unconstitutional
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
If it doesn't follow the Constitutional Process
dajeeps (Diary) Thursday, March 18th at 7:11PM EST (link)For the passage of laws then it shouldn’t be done – EVER. I don’t care about efficiency. I care about whether the protections against tyranny contained in the highest law of the land are being broken down to where we end up with socialized medicine, eugenics, and the whole ugly commie ball of wax as a result. There is no good reason for not following the Constitution especially where it gives explicit instructions while many others are left vague to provide some elasticity. It obviously was not meant to be elastic to where the Yeas and Nays are not needed.
We are here at this point precicely because the powers that be felt it was ok to step out of the box for the sake of expiedency and made a habit out of it to where the Constitution is meaningless to no one but us.
Anyone who does not have the fortitude to uphold their oath does not deserve to be in a position of power, Republican or Democrap.
…”I would quarrel with both parties and with every individual of each, before I would subjugate my understanding, or prostitute my tongue or pen to either.”
–John Adams
Slaughter is not per se unconstitutional
JSobieski (Diary) Thursday, March 18th at 3:20PM EST (link)but having the President sign into law a bill that includes only a subset of a vote is unconstitutional
Senate passes A
House passes A (whether by deeming or otherwise) + B
The bill passed by the House includes A +B, but B has not been passed by the Senate.
If your logic was correct, the House and Senate could declare rules where each sentence in a proposed law is a separate bill, and there would never be a conference committee and line item vetos would be constitutional.
There are constitutional limits to the rules that the House and Senate can adopt for themselves as it relates to what is required for a Presidential signature to enable the creation of a law.
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
we do not disagree . . .
denniswayne Thursday, March 18th at 4:36PM EST (link)I did not say that the House was free to add all sorts of things to a bill *and* be able to pass such with “deem and pass”. My point was that “deem and pass” is designed for budgetary inconsequential-to-the-substance changes to a bill already passed by both houses. This rule cannot be used as a substitute for conference or reconciliation, it cannot be used to circumvent both houses passing a bill. The Slaughter Rule is clearly a significant deviation from “deem and pass” as designed and intended, for the reasons you describe.
The context of my comments was re the legitimacy of “deem and pass” as a House rule in general used as intended *as opposed to* the Slaughter version which I agree is an un-Constitutional contortion.
My bad. The problem is that the discussion of Slaughter
JSobieski (Diary) Thursday, March 18th at 5:42PM EST (link)confuses the core “deem to pass” concept and the implications of that concept with respect to Obama signing HCR by signing Senate Bill that the House did not pass independently.
Any miscommunication between the two of us is emblematic of the miscommunication on this issue in the general public.
The “deeming” part is just kind of stupid, but the Presidential signature thing (which is much harder to explain) is the real issue.
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
no problem at all . . .
denniswayne Thursday, March 18th at 6:31PM EST (link)I agree entirely. And the media’s lack of substantive analysis is really exacerbating the issue.
Thanks for the response.
Forcing MAObama To Pass A REPUBLICAN Health Care Bill in 2011
Ausonius (Diary) Thursday, March 18th at 12:15PM EST (link)There is one sure method to guarantee both that MAObama’s Hell-th Care fiasco will be overturned, and that you will still get basic reforms for the problems which exist.
Assuming that this monster lives to become “legal”…
WHEN the Republicans get a majority next year, they need to pass much more sensible legislation adressing what people want addressed: “pre-existing conditions” etc.
The language of the bill will abrogate MAObama’s Hell-th Care bill, null and void.
BIG BRObama will then be forced to choose between vetoing a bill that the public wants (assuming the Republicans do NOT choke and blow this opportunity) and dooming himself and his party, as Buzz Lightyear would say, “to infinity and beyond!”
What a choice for poor MAObama and his DEEM-ocrats/DOOM-ocrats (the puns are just too easy these days) !
Ausonius: 310-395 A.D. Teacher, Poet, Consul, General, Farmer.
Personal Tutor to the future St. Paulinus of Nola and to young Gratian, heir to the throne during the turbulent final years of the Western Roman Empire. When his former student Gratian was assassinated, Ausonius threw up his hands and retired to his farm in Gaul. Rome was captured by barbarians 14 years after his death.
Cato@rock.com
Hiding behind the "Deem and Pass" subtrifuge
eastbaylarry (Diary) Thursday, March 18th at 1:40PM EST (link)will not serve it’s obvious purpose, i.e. NOT voting for an unpopular bill.
In todays’ world with the internet focused keenly on this subject, any democrat that tried to make the claim will be laughed at.
2+2=4 dammit!
and . . .
denniswayne Thursday, March 18th at 3:12PM EST (link)I would just add that this chicanery will do Dem’s the most damage with the independent and swing voters – the group that has hammered them in VA, NJ, and MA. This group according to polls is more sensitive to corruption and pays closer attention to process.
I surmise the Leadership is making a calculated gamble. If the bill fails to pass, they believe they will lose much of their base. If they do pass it, they believe they can do damage repair to turnaround some of the independents that this will anger. They painted themselves into this corner, and this is the least of the two evils. Besides, they really believe this is the right thing to do.
Of course, the electorate will recalibrate them come November.
House Has Taken A Vote On the Slaughter Rule
AndrewHyman (Diary) Thursday, March 18th at 2:47PM EST (link)The House just defeated a Republican measure to block the Slaughter Rule by a vote 222 to 203.
That pretty much makes it a done deal.
Menlo (Diary) Thursday, March 18th at 3:03PM EST (link)How could any one of those 222 not be a supporter of the final bill?
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” -Felix Frankfurter
Menlo, you are absolutely wrong
JSobieski (Diary) Thursday, March 18th at 3:07PM EST (link)read my comment above.
To your credit, you are too straightforward to think like a politician,
My rules of the road for primary season.
Rule #1: Vote for YOUR first choice in the primaries
Rule #2: Vote for the R in the general.
Rule #3: Don’t let anyone convince you to violate Rule #1 or Rule #2
Rule #4: When in a center-right argument, reaffirm Rules #1-#3–it will help us all to get along better.
Rule #5: If you are using the language of the left, you probably aren’t furthering conservativism
Rule #6: The priority is issues first, candidates second, and supporters third. Nobody is bigger than the issues. Conversely, if you spend your time focusing on supporters, you are wasting everyone’s time.
STOP THE MADNESS!
A reduction in the rate of spending increases is NOT a cut!
In-state tuition for illegals is NOT amnesty!
Requiring someone to pay their medical bills is NOT an individual mandate!
Reducing tax rates is NOT a tax increase!
Well, I see the resident eeyore has arrived on the scene -nt-
eburke (Diary) Thursday, March 18th at 3:05PM EST (link)“All that need be done for evil to triumph is for good men to do nothing.”
Unified Patriots
oh, and to kowalski, menlo...
eburke (Diary) Thursday, March 18th at 3:08PM EST (link)as long as it’s all over, I’d suggest that you just grab a Macanudo and a margarita, kick back in your easy chair, and enjoy life. The rest of us will continue to fight, thank you very much.
Glad you weren’t in charge of rallying the troops at the Battle of Bastogne.
“All that need be done for evil to triumph is for good men to do nothing.”
Unified Patriots