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.’”
Yeah, and he was lucky enough to not die of old age before they ruled on it. Hope this doesn't happen with obamacare.
I guess you think he would be worse then odumbo. ok
The main subject matter of Clinton vs. New York does not restrict the ruling on the requirement for an "exact text" to be passed by both Houses for a Bill - that was a ruling on requirements for any Bill, not just the presidential line-item veto.
As for the legal justification of the "simultaneous enacting" of reconciliation changes, such an effort fails in both directions.
First, if it (simultaneity) is invoked through the power of reconciliation, it fails because it both exceeds the explicit budgetary topic limitation of reconciliation by also attempting to pass the legislation of the bill itself, and violates it's requirement that the bill it reconciles has - already - not only been passed by both Houses of Congress, but also signed into law by the president.
Second, if it (simultaneity) is invoked through the power of Article I, Section 7 of the Constitution, it fails because that Section states "the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively." Note that the votes must be entered for and against the Bill itself - not some reference to the Bill. So that means this "reconciliation vote" cannot meet that 1/7 requirement, because it is specifically NOT a vote on the Bill itself - Pelosi is even bragging about this point.
So as I can't see how simultaneity can be successfully defended, and the Court has already shown it will rule at least on the requirement that 1/7 be strictly followed, I see SCOTUS striking down this "law" (if it Obama ever gets to sign it) as never passed by both Houses, and thus void.
So if I am to understand this correctly, in a convoluted way, they are giving the bill an up or down, Yea or Nay vote. It is like saying this:
I vote for bill A, which means by proxy I vote for bill B.
However, it's not the exact language of the constitution, which says in the Article 1, Section 5, "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal."
Which means the GOP should be able to force them to vote on it with a handful of members.
And the Clinton v. City of New York (1998) Line Item Veto case does set precedent that the Court may rule on procedure, since it did make the comment "the bill containing the ‘exact text’ must be approved by one house; the other house must approve ‘precisely the same text.’".
I think it's enough of a stretch to tie it up in courts and force an injunction against implementation.
Clinton versus City of New York was decided on the legislation. Not procedure.
The line item veto is not a House or Senate rule as the president is not a member of either body.
Wrong. Something like this has been done before, and the USSC wouldn’t touch it. Its wrong, but its a political wrong, not a Constitutional wrong.
Hence the need to attack the Supreme Court. We’re through the looking glass and I almost cannot believe this is America.
If I wasn’t from Chicago I really couldn’t believe it.
Yet, procedure was cited. Not only cited, but stated as fact of law by the Constitution's color, and since they are the ones who enforce the Constitutionality of law, it appears this may bleed over enough to merit their attention.
Did you completely read what he said, or did you just headline shop?
Didn't say that or imply that as everyone can see by reading my post. I just disagree that McCain is looking better. He looks better than obama (except for a lot of the time during the debates where he wouldn't fight back) but he's still McCain, with his 'hands across the aisle' approach and his apparent enthusiasm for amnesty. I'm even concerned that he would end up giving us a socialistic health care system in conjunction with his democrat 'friends.'
If he's nominated, of course I vote for him, but I pray we come up with someone a lot better.
If McCain is nominated again, I am leaving the country.
If someone can find the exact text of the Supreme Court ruling, I’d love to see it. The left is going to say that it was passed.
FYI...
CLINTON v. CITY OF NEW YORK (97-1374) 985 F. Supp. 168, affirmed.
WASHINGTON EXAMINER
Would Supreme Court rule unconstitutional law passed with Slaughter Solution? By: MARK TAPSCOTT
Editorial Page Editor
03/15/10 4:21 PM EDT
Democrats in Congress might want to re-read the 1998 Supreme Court decision Clinton v. City of New York, 524 U.S. 417 before moving forward with the Slaughter Solution to pass President Obama’s health care reform bill. That decision is chiefly remembered today for holding a federal version of the line-item veto as unconstitutional.
The reason, according to Amy Ridenour at the National Center Blog, is that the Justice John Paul Stevens articulated in the majority opinion the precise rationale for a similar ruling against legislation passed using the Slaughter Solution.
Ridenour notes that Stevens wrote:
“...our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became ‘Public Law 105—33’ after three procedural steps were taken:
“(1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law.’ Art. I, Section 7.
“If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. [Emphasis added] If the Line Item Veto Act were valid, it would authorize the President to create a different law - one whose text was not voted on by either House of Congress or presented to the President for signature.
“Something that might be known as ‘Public Law 105—33 as modified by the President’ may or may not be desirable, but it is surely not a document that may ‘become a law’ pursuant to the procedures designed by the Framers of Article I, Section 7, of the Constitution.”
That reasoning would seem applicable to legislation approved under the Slaughter Solution, since the House would be voting on a proposed rule for considering a bill and not the bill itself.
Something to think about, Madame Speaker. You can read all of Amy’s post here.
Any bets on how long before a liberal lawyer writes in to explain why the Justice Stevens’ logic would not apply to the Slaughter Solution?
The disgrace that was McCains campaign I am trying to forget. That being said, there is no worse then odumbo.
He is even ashamed to fly our Flag in Haiti
Nail on the head. Those are the hopes I’m holding out for.
We need a third party because two parties are not enough to represent the spectrum of political opinion.
We get another candidate like McCain, and I’ll tell you what, I’ll vote for him again but we will LOOSE again.
Close, but not exactly. I vote for RULE A, which means I vote to pass the Senate bill. But you get the basic idea. I see nothing in the Constitution that prevents this.
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