Posted on 03/19/2010 7:29:53 PM PDT by Steelfish
MARCH 20, 2010 The Health Vote and the Constitution—II The House can't approve the Senate bill in the same legislation by which it approves changes to the Senate bill.
By MICHAEL W. MCCONNELL [Mr. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center]
In just a few days the House of Representatives is expected to act on two different pieces of legislation: the Senate version of the health-care bill (the one that contains the special deals, "Cadillac" insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. (snip)
This enables the House to enact the Senate bill while appearing only to approve changes to it. The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).
This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.
Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School's Jack Balkin asserting that a "rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House's powers under Article I, Section 5, Clause 2."
(Excerpt) Read more at online.wsj.com ...
"Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way.
Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution.
I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote."
I was good friends with Judge McConnell when we were both in the same lodge of the Order of the Arrow in Boy Scouts many years ago. His brilliance was readily apparent then. It is a shame that he will never be Justice McConnell.
He sounds brilliant and so timely in this HC matter. I hope what he is saying here, is burning some ears at this very moment.
Additionally, in Clinton v. City of New York, Justice John Paul Stevens [writing for the majority] stated that the "Presentment Clause" [Aticle I, Section 7] is EXPLICITLY clear.
A bill is originated in one house, then approved by the other house [in the EXACT same textual form]. The bill then goes to the President for signature. Only AFTER the bill has been signed is it law.
ONLY then can the law can be repealed or amended in a separate bill ...
In this day of allegedly “living, breathing” constitutions it’s easy to see liberals fudging this into a “look what we meant” issue and making this tantamount to having both bills pass both houses (assuming the Senate later cooperates). This assumes Nancy resists the temptation to take the demon passed (or straight voted) copy of the Senate bill that the House voted upon to Barack Obama to sign, before the Senate and House agree upon a reconciliation bill (or if it proves they cannot thus agree).
Anyhow, both bills separately aren’t the same as both bills tied together. It would seem that the Senate really should be required to approve both bills tied together, in a revote on its own bill together with the revision bill. Because as a group, the Senate might not be able to garner the votes on such a thing. In fact the Senate bill literally says it can’t be amended except by a supermajority!
The motive is evading the political cost of having the naked Senate bill hung around their necks vs. the political cost of the more “reasonable” combination of Senate bill and fixit bill.
This addresses demon passing.
This doesn’t address the House getting suckered into approving both bills in one vote.
Read again. The Slaughter procedure is exactly what the lawsuit from Levin is about.
archive
I think that’s exactly what I was referring to as “demon passing.”
Suppose however the Senate bill and fixit bill (and now, as it appears, Stupak language substitution bill) are bundled into a group upon which the House is asked to directly vote sans Slaughter Rule. Now what?
Thanks for posting The Great One’s brief!
Go gettum Mark!
Where's the ball, whose got the ball? rofl.
What is clear is that the Constitutional subterfuge is being attempted entirely because the House no longer has the votes to pass a properly modified bill.
They are advertising the fact that they brazenly want to ignore the Constitution.
Not ony must they be slapped down hard, but must also be prosecuted for attempted treason.
Does it matter? The Constitution is not self-enforcing. By the time a challenge,if accepted by the Supremes, gets argued, researched, argued, et cetera, et cetera, the Radical Transformers will have enacted by means of imaginative applications of Obama’s autocratic rules, deceptions, end runs, and un-ratified appointments of Enforcers, so many new laws and rules that the deed will have been done.
Remember Federalism?
No where in the Constitution is the Federal Government given Authority to regulate doctor care or insurance.
If the Constitution does not give Congress that power... then the 10th Amendment says it is a State issue.
If people want commie care, talk to your State reps, not the Federal ones.
Well if they follow the Slaughter rule, the Senate bill goes to the president as is for signature even though it was never voted on. It becomes law unless overturned or repealed later on. We now have Socialist healthcare and we are screwed.
The fix bill then goes back to the senate, where I think via reconciliation, it would have to be voted on( by 51) without changes. No guarantee the Senate would pass this as is.
If the Senate changes it in ANY way it goes back to the House. Rush and several others have said the reconciliation vote is a smokescreen, and they simply want the Senate bill initially. To be followed by the Public Option and Single payer down the line.
Since the Slaughter rule would seem to be the most blatant Constitutional violation of many in both the process and the bill itself, it seems to have the best chance of being overturned. Can you imagine the fun if Obama’s one little victory got invalidated several months from now.
Nancy won’t do the vote on Sunday unless they are sure the fix is in. I think there’s still a chance.
The left has so used the Supreme Court to legislate, when it served their purpose. But now things have changed.
O'Zero has deemed the Supreme Court to be irrelevant, he did this when he humiliated them at the State of the Union.
That was a message to them, and he knew they could not protest at that time, that "We no longer need you for anything"
I don't think this set well with the Judges, not even the Liberal ones. Sotomeyer did not look to happy about what was said. Even the Liberal Judges deem their jobs as being important and respectable.
So, when this H.C. mess comes before them, I have no doubt that they will remember the treatment they received and fully understand what is at stake. If not, we are not a country of laws any longer.
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