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How Unconstitutional is the Slaughter Solution?

You really couldn’t come up with a better name for the latest scheme the Democrats have come up with to pass health care. Absent the votes to actually pass this monstrosity, we’ll just slaughter the Republic and the Constitution and ram it through! But there seems to be some debate as to whether this mess is constitutional. Here are some thoughts on the matter, keeping in mind I’m far from an expert on these topics.

It would seems to me to be perfectly constitutional for the House to amend the Senate version, then send it back to the Senate, which the Senate will then pass and go on to the President. This path, however is closed by rule, since it would require 60 votes in the Senate to shut off debate on the bill, which the Democrats no longer have (thank you Massachusetts!). There’s also the political problem that Pelosi would no longer appear to have the votes necessary to pass anything called “Health Care” in the House.

My understanding of the Slaughter Solution is that they pass a reconciliation bill, along with a rule change that deems the Senate version to have been passed (even though it has not). The reconciliation bill then goes to the Senate under reconciliation rules, under which the terms of debate do not allow for the filibuster. The reconciliation bill, being signed by the President, then becomes the Health Care law. Now, there seems to be some question on whether, after the reconciliation bill passes the Senate, the House will then actually have a vote on the Senate bill, and if passed, both bills will be presented to the President for his signature or veto.

It would seem to me any law which is presented to Obama, not having passed both houses of Congress, would be pretty clearly unconstitutional. But is it judicable? In other words, can someone file suit. I think that yes, a minority of members of Congress could sue because they were denied their constitutional power to request a roll call vote. This is pretty explicitly in the constitution, and it would seem to be to be fairly unambiguous that this path would be unconstitutional, and the minority would have a means for invalidating the bill. The only counter argument I could see here is that, effectively, the House combined several questions into one vote, which is should be permitted to do if the House rules allow it. But how far would this be allowed to go? What if the House changed its rules to say any bill which the Senate passes in a given session will be “deemed” to have pass? It would seem to me there also might be questions that could be raised under the Non-Delegation Doctrine as well.

The latter case, where the House moves a reconciliation bill forward, under a rule that deems the Senate version to have passed the House, but with the Senate version later being actually voted on by the House and both bills being presented to the President simultaneously is a bit more constitutionally ambiguous. There’s a better case that this is constitutional., since the House and Senate will have, effectively, passed two bills, and presented both to the President. The “deeming” of the Senate bill being passed, in this instance, would merely be a procedural maneuver that would allow the Senate to use the reconciliation rules to get the fixes some House members are demanding before they’ll flip their vote. It’s my opinion that if this is the plan, it’s likely constitutional. The question is whether it violates the reconciliation rules. Reconciliation rules require that you change a budgetary matter that is actually existing law. It would seem to me that this Slaughter rule wouldn’t really get around that. They’d essentially be changing budgetary issues that don’t effectively exist. The House passing a rule that “deems” a bill to be passed does not actually make it so.

Either way you go, this tactic is a disgusting abuse of procedure and an affront to the democratic process. It’s hard for me to understand how it’s legal under either path. I definitely don’t see how the House gets around having to vote for the Senate bill. It would seem to me you can’t pass two bills with one vote because of the Article 1 Section 5 requirements in the constitution. If anyone out there has any specific expertise on this topic (and after reading the actual rules, if you do, I have a huge amount of respect for you, these rules are complicated) feel free to chime in with comments.

21 Responses to “How Unconstitutional is the Slaughter Solution?”

  1. TeeJaw says:

    I think it’s meant to be a little simpler than you suggest. This is how Slaughter, Pelosi and Obama see it going:

    The House passes the reconciliation bill, and without voting on the Senate Bill, the Senate Bill is “deemed” passed. Now that the Senate Bill is “deemed” passed, the identical bill has been passed by both Senate and House, and under Article 1, Section 7 of the Constitution it is presented to the President for signature or veto.

    At that point Obama signs it and it’s the law of the land. Done.

    Oh, wait. What about the reconciliation bill? Reconciliation bill? What reconciliation bill?

    [It’s unconstitutional because Article 1, Section 7 requires a tally of the yeas and nays. “Deeming” it passed does not give you a tally of the yeas and nays. “Hey, we’re Democrats and we don’t need no stinking yeas or nays!”]

  2. Stacy says:

    Pelosi et al’s bad faith aside, a commenter on the VC pointed out that there’s not much substantial difference between taking a vote to declare a bill passed, versus actually voting on the bill itself. Everyone knows what they’re voting on. The real problem (at least as I understand it) is that the ‘deeming rule’ would remain to be used in the future, on other bills that might have been written five minutes ago in the middle of the night. If that’s the case, then it truly is an ‘enabling act’ in the Nazi mold.

  3. Sebastian says:

    TeeJaw:

    The Section 7 requirement is only in the event that the bill is vetoed. Voice votes and unanimous consent are permitted on regular bills. Section 5, however, says that 1/5th of the members present may ask for the yays or nays to be recorded in the record. That would be the problem with it.

  4. Sebastian says:

    Stacy:

    But could congress make a rule deeming anything the Senate passed to be passed by the House without having a vote? It would seem to be there would have to be some kind of limit on such a practice without getting into non-delegation problems. If Congress can “deem” one bill to be passed with a rule, why can’t it deem two? Three? Twelve?

  5. Monty says:

    I think the house could deem as many bills passed at once as it wants, as long as they have all already passed the senate. The delegation problem only arises if you tried to deem something as passed that wasn’t concrete yet, or try to make a conditional deeming. (it would clearly be wrong for the house to deem the senate version passed conditional on the senate passing reconcilliation) It really seems like symantics, if they try it, its because they think the American voters are too stupid to see through it. That is where the focus should be.

  6. Kevin says:

    Doesn’t the senate bill create taxes, which makes it a revenue bill?

    “Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

    Or is this essentially a dead letter provision these days?

  7. Sebastian says:

    No, because the Senate bill was actually a House bill that was gutted and replaced with health care. This takes care of the origination language in the Constitution. So the answer is, it’s technically not dead letter, but in practice it is, and has been for quite some time.

  8. Jujube says:

    Seriously, this is just politics as usual. Remember the Patriot Act? They can shove through whatever they want to shove through.

    The longer I live, the more I realize that politics really is “show business for ugly people.”

  9. Sebastian says:

    Not to excuse the cluster f**k that was the PATRIOT Act, but at least they actually voted on it :)

  10. Ymal Brucker says:

    “It would seems to me to be perfectly constitutional for the House to amend the Senate version, then send it back to the Senate, which the Senate will then pass and go on to the President. This path, however is closed by rule, since it would require 60 votes in the Senate to shut off debate on the bill…”

    Not exactly. If differing versions of a bill go to a conference committee, the product of that committee needs only 51 Senate votes. The Senate bill, however, cannot go to a conference because one senator (Jim DeMint) objected to subjecting the bill to conference.

    Proving once again that one senator can make a difference.

  11. TeeJaw says:

    Section 5:

    …and the Yeas and Nays of the Members of either House shall, at the desire of one-fifth of those Present, be entered on the Journal.

    That seems to contemplate there actually be Yeas and Nays to enter on the Journal. It is long standing practice that the Yeas and Nays are always taken and entered on the Journal, except on unanimous consent. Changing the rules in the middle of a bill may present other Constitutional problems. Also, some constitutional lawyers believe that Section 7 is not limited to veto overrides, or that taken together with Section 5 makes it clear that bills cannot be passed without voting on them. Until now, no one would have thought otherwise.

  12. sterlingarcher says:

    Who is going to stop them? The Democrats have proven themselves to be above the law time and time again. The msm (except Foxnews) will never report that this move is unconstitutional. The constitution is dead and no matter how much we complain the same A$$holes will get re-elected this November. We now have a neo-monarchy with the progressive democrats as our royalty. Don’t believe me? Are any congressional seats really at play in any of our major cities? No…They will remain in Democratic hands. How about states like New Jersey, Maryland or New York? The marxist states. Again, complain all you want but the residents of these states have proven to me that they will choose tyranny over freedom all the time. I’d love to see PA secede from the Union right now.

    Sorry to sound so pessimistic.

  13. TeeJaw says:

    Section 7:

    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;

    Section 7 clearly requires a bill to have been passed before it is presented to the President. “Deemed” is not “passed.” That requires a vote.

  14. I would agree with the comments above that imply that constitutionality (as the people understand it) is no issue to the powers that be.

    If they do proceed it will be yet another nail that will be used to build a coffin with which to bury the hopes that Democratic congressmen (who throw in with this foolish tactic) have for re-election.

  15. I think its probably within the bounds of Constitutionality. This seems like a parliamentary dodge to avoid the self-imposed 60-vote cloture rule in the Senate and to give House Blue Dogs a fig leaf to hide behind (“We didn’t actually vote for that unpopular bill!”). Whether or not the American people are amused is another matter.

    However, I think most Americans (A) won’t notice, (B) won’t care, or (C) won’t mind. I mean, a majority of people pay no income taxes and have nothing saved for retirement. So I think they want free handouts and won’t really care what political tricks are used to get them.

  16. TeeJaw says:

    Sebastian,

    I think I’m vindicated. Michael McConnell, former judge on the United States 10th Circuit says it is Article I, Section 7 that makes the Slaughter rule unconstitutional.

    <The House Health Care Vote and the Constitution

  17. TeeJaw says:

    Sorry, link didn’t work. This one should:

    The House Health Care Vote and the Constitution

    If not, it’s an op-ed in today’s Wall Street Journal

  18. Arnie says:

    Gentlemen, I hope it to be within my means to retire early in the next year or two, at which time I am contemplating having NO health insurance (I stay in pretty good health and have plenty of resources to “self-insure” for a while). I would love be the test case for the Supreme Court to throw this tyrannical piece of garbage out as unconstitutional on the CLEAR grounds that Congress has no enumerated power to legally mandate any private citizen to buy a commercial product (health insurance) simply because they are a living citizen of one of the United States. Please pray for me that I shall be able to do that.

    Thank you!

  19. TeeJaw says:

    More vindication. Jonathan Adler at The Volokh conspiracy post excerpts from Michael McConnell’s Wall Street Journal piece finding Slaughter unconstitutional under Article I, Section 7.

    <a href=http://volokh.com/2010/03/15/it-may-be-clever-but-it-is-not-constitutional/<It May be Clever But It’s Not Constitutional

  20. sofa says:

    “All laws repugnant to the Constitution are null and void”
    -SCOTUS, 1803, Marbury vs Madison

    “All governments repugnant to the Constitution are null and void”
    -sofa, 2010

    Recent CNN Poll: 32% of the population believes in ALIEN ABDUCTIONS.
    Recent Rasmussen Poll: 21% believe the government currently is operating with the consent of the governed.

    Only the most delusional still believe in our our government.

    Recent Rasmussen Poll: 63% of “Independents” think the federal government has become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.

    People see the federal government as an “Immediate threat”. Wow.

    There was a Coup, and eventually people noticed!

    “If we refuse to participate in our own oppression, we will be fined. If we refuse to pay the fine, we will be arrested. If we refuse to submit to arrest we will be killed.”
    -Mike Vanderboegh
    http://sipseystreetirregulars.blogspot.com/2010/03/there-can-be-no-reconciliation-on.html

    “A patriot must always be ready to defend his country against his government.”
    -Edward Abbey

    “The world is a dangerous place to live; not because of the people who are evil, but because of the people who don’t do anything about it”
    – Albert Einstein

    “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”
    -Ronald Reagan

    “A fatal misconception is the belief that evil can be reasoned with.”
    -Unattributed

    You can evade reality, but you cannot evade the consequences of evading reality.”
    – Ayn Rand

    “Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

    And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
    -T. Jefferson, et al, Declaration of Indepedence

    “If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were ever our countrymen.”
    — Samuel Adams

  21. Kevin TX says:

    TeeJaw in 1., thanks for illuminating on real intentions here but you lost me – if Pelosi, et al. “deem” the original Senate (“Christmas Eve”) bill “passed” and then procede on to reconcile it in House, aren’t they changing the substance of the original Senate bill (to make it more palatable for the BlueDogs of course)? Meanwhile, over in the Senate, the Dems are frozen with the original bill text- can’t clean it up because Scott Brown (reviving filibuster) and Jim DeMint (no conference) have done their good work. How does this end us up with two identical bills passed separately by each house, to go to the President – what am I missing? Seems like things are at stop over in Senate. Illuminate further please.

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