Posted on 03/16/2010 11:36:03 AM PDT by truthandlife
Rep. David Dreier (R-Calif.), the ranking Republican on the House Rules Committee, indicated yesterday that he was resigned to letting congressional Democrats make the Senate health-care bill the law of the land without ever holding a vote on it in the House of Representatives by passing a rule governing debate on another bill, the budget reconciliation, that "deems" the health care bill as passed.
Article 1, Section 7 of the Constitution, however, expressly states that for any bill to beome law "the Votes of both Houses shall be determined by the 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." After that, under the Constitution, the president must either sign the bill or hold it for ten days (not counting Sundays), after which it will become law unless Congress adjourns in the interim.
Constitutional scholars have said that what the Democrats may try to do by making the Senate health care bill law without ever voting on it in the House is unconstitutional and could spark a constitutional crisis far worse than Watergate.
Dreier, who is the top House Republican responsible for making sure that Congress follows legitimate rules of procedure, told reporters yesterday that he is not a constitutional expert and that he had not spoken personally to any constitutional experts about the issue. He did say he had indirectly gotten "input" from such experts.
“If this passes and is signed into law, I think it becomes law,” Dreier said. “I’m not a constitutional lawyer and that’s the response from some of the experts with whom I’ve spoken – I didn’t speak to but have gotten some input from. I’m not in a position to raise the (constitutionality) question right now.”
Dreier said there is nothing the majority party (Democrats) cannot do so long as the Rules Committee, where Democrats hold a 9-4 majority, authorizes it. This would include passing health reform without actually voting on it.
“There’s nothing that can prevent it,” Dreier said. “It’s something, David [a reporter], that they can clearly do, if they have the votes.”
The plan Dreier was asked about is called the Slaughter Solution, named for Rules Committee chairwoman Rep. Louise Slaughter (D-N.Y.).
The Rules Committee sets the rules of debate for legislation before it is brought to the House floor. Under normal circumstances the committee lays out how much time each side is allowed for floor debates and which amendments they can offer on the floor. Amendments that the majority does not want debated or offered on the floor are often added to legislation in the Rules Committee.
Such self-executing rules, as they are known, have been used by both parties to avoid extended debate on politically embarrassing matters, such as raising the national debt ceiling.
If Democrats use the Slaughter Solution, it would send the Senate-passed bill to the president to sign, and the amendments package would go to the Senate, where it presumably would be taken up under the budget reconciliation process.
Dreier said he had “explored” questions of the plan’s legality and found that the bill would still become law.
“I’ve explored that earlier today and I think that if it becomes law, it becomes law,” he said. “I think that that’s the case.”
The question of constitutionality of the so-called Slaughter Solution stems from the plain language of Article I, Section VII of the Constitution, which states that all bills must pass Congress via a vote in both chambers that is recorded in their journals:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. 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. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
Radio host, Landmark Legal Foundation President, and former Justice Department Chief of Staff Mark Levin said that the Slaughter Solution was a “blatant violation” of the Constitution on his radio program on Thursday, March 11.
“I can’t think of a more blatant violation of the United States Constitution than this,” said Levin. “If this is done, this will create the greatest constitutional crisis since the Civil War. It would be 100 times worse than Watergate. It would be law by fiat, which would mean government by fiat.”
President Barack Obama, flanked by health care professionals, speaks about health care reform in the East Room of the White House on March 3, 2010. (AP File Photo/Alex Brandon) Constitutional law expert Arthur Fergenson, who litigated the Buckley v. Valeo case enshrining campaign spending as a form of constitutionally protected speech, weighed in on Levin’s Thursday program, calling the plan “ludicrous,” saying that such a move would be “dangerous” because it would amount to Congress ignoring the clear constitutional provision for how a law is approved.
Fergenson explained that both chambers of Congress must each vote on identical bills before the president can sign them into law. Any bill signed by the president that had not first been voted on by both the House and Senate would be a “nullity,” he said.
“It’s preposterous, it’s ludicrous, but it’s also dangerous,” Fergenson said. “It is common sense that a bill is the same item. It can’t be multiple bills. It can’t be mash-ups of bills. It has to be identical, that’s why the House and Senate after they pass versions of the bill--and we just had this with what was euphemistically called the jobs bill--if there are any changes they have to be re-voted by both chambers until they are identical.”
“Both chambers have to vote on the bill,” Fergenson said. “If this cockamamie proposal were to be followed by the House--and there would be a bill presented (to Obama) engrossed by the House and Senate and sent to the president for his signature that was a bill that had not been voted on identically by the two houses of Congress--that bill would be a nullity. It is not law, that is chaos.”
Former federal judge and the director of Stanford University’s Constitutional Law Center Michael W. McConnell agreed with Fergenson’s assessment. Writing in The Wall Street Journal on March 15, McConnell called the Slaughter Solution “clever but … not constitutional.” McConnell noted that the House could not pass a package of amendments to a health reform bill it had not passed first.
“It may be clever, but it is not constitutional,” said McConnell in the Journal. “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.”
“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote,” wrote McConnell. “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.’”
The GOP rules chief should RESIGN IMMEDIATLY.
Well he damn well BETTER talk to some of them! Otherwise HE should resign and let someone with some initiative and balls take over.
The Slaughter Solution Will Probably Pass Constitutional Muster
—DrewM.
Gabe laid out the procedures involved in the Slaughter Solution and former Judge Michael McConnell’s argument for it’s unconstitutionality. While I, and I think most sane people, agree with McConnell, sanity is a relative term when it comes to the law.
Shannen Coffin makes the case for why it’s going to be very hard, if not impossible, to get a court to overturn the bill based on a challenge to the Slaughter Solution.
The short version is, courts don’t do legislative sausage making. If the Speaker of the House, the President Pro-tempore of the Senate and the President say it was passed and signed properly, the courts generally take their word for it.
The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn’t affected by that later decision.
Look at what the Constitution actually says about the passage of bills
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;
Article I, Section 7 goes on about vetoes and overrides but that’s the heart of the matter. Notice it doesn’t say what ‘passed’ means. We all assume it means a vote where the majority of members vote yes but that’s not actually stated. What it takes to pass a bill is left up the rules of each house and courts aren’t likely to get involved in that.
There are a lot of things we take for granted, as being understood and inviolable rules but the reality is democracy requires a respect for institutions, customs and shared understandings. There’s no force of nature that ensures democratic norms are followed. The checks and balances of our system help but ultimately it comes down to the willingness of individuals to be bound by them. Get enough people in power agreeing to push past those boundaries and bad things can happen.
The Democrats know this Slaughter Solution won’t shield members from the wrath of the electorate, it’s likely to increase the anger. This isn’t some legislative trick played in the middle of the night on a bill no one has ever heard of. Voters are going to want to know how their representatives voted on ‘health care reform’, not the ‘rule under which the Senate sidecar reconciliation bill’ passed. This is not a vote anyone can hide from, it’s a bottom line deal...did you vote to screw things up or not? That’s what will matter.
By this maneuver the Democrats are showing that they hold the customs of consensual democracy in contempt. While the institutions of government may not be enough to constrain these bastards, there is still one final court of appeal and that’s the voters.
Hardcore liberals in the Democratic leadership just don’t care about the consequences or what people want or don’t want. This is their Holy Grail and they know once they shove it down our throats it’s not going to be undone.
There’s something fundamentally very ugly and dangerous when elected representatives don’t respect the voters or at the least fear them.
Related: House Republicans are going to try and force Democrats to hold an up or down vote on the Senate bill or at least go on record as saying they won’t.
Nancy gets a Yes vote to stay Yes.
Added... A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we’ve got her on hypocrisy. Bad news, she lost the court challenge.
Posted by DrewM. at 11:56 AM New Comments Thingy
For the same reason that it is illegal to drive a car on the sidewalk. It can be done, someone may try to change the rules to allow it, but it does not change the law.
I could care less about what McCarthy has to say.
And there have been articles from Constitutional lawyers as well as press conferences and interviews that say it is clearly unconstitutional.
You want to defend this ignoramus? How do you defend a Member of Congress from saying they don’t know the Constitution? There are members backed by experts ready to take it to court. Why is Dreier not talking to them? And if he is, why is he acting like a weak inept pushover before the press?
Why, because David Dreier is an idiot? I've got news for you, David Dreier is not the Republican party.
Rep. David Dreier (R-Calif.), the ranking Republican on the House Rules Committee, indicated yesterday that he was resigned to letting congressional Democrats make the Senate health-care bill the law of the land
Right, Dave. Don't FIGHT, or anything.
Yeah. Right. He'll end up giving amnesty to 30 million democrat Mexicans.
If this POSIC resigns, we get plugs.
Bingo your #86 !
If Drier passed the bar by virtue of attending law school we can presume he has a working knowledge of the Constitution.
Drier sits on a very important committee. A basic understanding the clear language of the Constitution ought to be a prerequisite to serving on that committee. And, the language pertinent to the Slaughter device is not difficult to read or understand.
It would be pathetic if he thinks not being an Constitutional expert gives him an out.
A responsible official in such a fix who thought himself unqualified would immediately reach out for assistance and otherwise prepare himself for performance of his duties.
Keep the goal in mind.
I'm wondering if obama knows he can't get it passed and is using this dumb bass move to "pass" it and then have it ruled unconstitutional. He can turn around and say the USSC has made another ruling against the people. Then he would proceed trying to pack the court with more Marxists.
They better be praying there isn't a blood bath in the streets.
Dreir would be more effective if he could come out and say:
"What the Democrats are proposing is unconstitutional. That's not just my opinion -- I sat down with a number of constitutional expects and they told me that this is a travesty. Our constitution is being trampled right before our eyes by the Democrats. I'm chairman of the Rules Committee, but I am powerless to stop this, because Democrats outnumber Republicans 9-4 on my committee. This is going to happen. And it may very well destroy the system of government we've had for over 200 years."
But his statement is a little wimpier than that.
So what?
It’s the people behind Sor0bama that run things anyway.
Figures.
You gotta wonder how many sex tapes Rahm Emmanuel has of this bozo.
Dreier.. the top House Republican responsible for making sure that Congress follows legitimate rules of procedure, told reporters yesterday that he is not a constitutional expert and that he had not spoken personally to any constitutional experts about the issue.
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Bang-Up Job, Dreier.
1. He was Arnold Schwarzenegger's California campaign co-chairman.
2. There are many rumors that he is secretly gay.
Is he afraid that his support of Schwarzenegger tags him as more liberal than conservative? Is he afraid that he might be "outed" if he opposes the Democrats?
-PJ
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