I guess if our government’s Democratic leaders don’t get their way on Obamacare, they would just as soon tear the country apart. Having lost the political debate over Obamacare, and apparently unable to muster sufficient votes in the House to pass the Senate version of the bill as written, Speaker Pelosi is reportedly planning on getting it through the House by passing the “Slaughter Rule,” that would “deem” the Senate version of Obamacare to have passed through the House of Representatives–without anyone actually voting on the bill itself. From the story:
In addition, it looks like House Democrats won’t have to vote directly on a Senate bill they really don’t like. The speaker hasn’t made a final decision, but she told her rank and file during the meeting that the plan now is to craft the legislation in such a way that they would “deem” the Senate bill passed once the House approves the package of fixes.
The excuse for this attempt to sidestep the Constitution is that the charter gives each chamber the right to control its own internal rules. Thus Section 5 of the Constitution of the United States states:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
This applies to internal procedures for legislating, not the actual requirements to pass a bill. For example, the filibuster is a rule of the Senate that requires 60 votes to close debate. That rule is wholly within the purview of the Senate, and the filibuster rule is established anew with each new Congress. The Filibuster is not required by the Constitution. Senators who are now agitating to change or revoke it in the next Congress are acting wholly within the Constitution, and if the Senate wishes to become just like the House regarding rules of debate, it is perfectly free to do so.
But you can’t pass an internal procedural rule that effectively revokes the Constitutional requirement of what must actually happen for a bill to pass into law! In order to become law, the Constitution requires a bill to pass both houses in identical form, and then either be signed into law by the president, or made law over a presidential veto. Section 7 states:
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: 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.
The U.S. Senate’s Web site explanation of this provision states:
The “presentment clause” describes the only way that a bill can become law: it must be passed in identical form by both Houses and it must be signed by the president or passed by a two-thirds vote of Congress over the president’s veto.
In other words, the bill must be passed, not a rule “deeming” it passed.
I heard the lawyer and radio talk show host Mark Levin citing the passage that votes must be recorded, as another reason why the “Slaughter Rule” would fail constitutional muster. I don’t think so. That clause clearly applies to veto overrides and many bills have passed without explicit yeas or nays recorded. But still, the bill must be passed.
If President Obama signs an Obamacare bill that was not actually voted on in the House of Representatives, it will unleash a bitter constitutional crisis of the kind I haven’t seen in my 60 year-+ lifetime. There will be years of intense litigation. Tremendous uncertainty as to whether it is actually law will roil the economy and divide the country. People will refuse to pay the taxes required in the “statute” on the basis that there is no law. Regulators will be sued. Vitriol of the kind not seen since the session crisis of 1861 will take over our politics, sowing even deeper societal divisions than already exist. At the end of the day, I believe, Obamacare will be declared null and void because it never actually have passed both houses of Congress.
And that’s the best case scenario. The worst case scenario is that the maneuver is somehow approved by the Supreme Court. Then, we will have lost our constitutional republic, because Congress will no longer have to pass bills. Just pass internal rules. And liberals who support Obamacare fervently enough to believe this expedient is justified, should understand clearly that sauce for the goose is sauce for the gander.
No bill is worth this price. Let us hope that reason prevails and the bill either passes or fails, and that we can then deal with the matter politically and legally from that basis as we always do in matters of public controversy. The last thing we need in these precarious times is a constitutional crisis.
March 13th, 2010 | 11:50 am
Oh my God, please excuse me, I think my head may have just exploded. I think of myself as pretty sophisticated when it comes to legislative rules and procedure, but this is, to put it mildly, bizarre. Assuming that the article’s description of the amendment and the process is correct, my gut response is to say that you are correct about the constitutional implications, Wesley. I have seen legislative shenanigans before, but this enters us into a completely new realm.
Up until now, with every legislative maneuver the Democrats have tried or considered, including the use of reconciliation, I have considered to be simply pushing the edge of the ordinary meat grinder of rules, process and backdoor deals that both parties use (warning, mixed metaphor alert, but this whole process is becoming one big mix of . . . metaphors). I don’t know enough about the history of using reconciliation to avoid filibusters. I would imagine both parties have used it, but I don’t know if it’s ever been used for anything this major before.
But this proposed rule to “deem” passage is, at best, just pathetic. Apart from that, how would the House get the votes to pass the rule if they can’t get the votes to pass the Senate Bill? I am not sure I even want to know. The question is almost metaphysical, and my brain hurts enough already.
And “The Slaughter Rule”, really!? Charles Dickens could not have come up with a better name. As in, slaughter the legislative process, slaughter the constitutional legitimacy of the legislative branch. And of, course, the bitter irony that the issue which is driving all this is that of federally funded abortion – I have never before used that kind of hyperbolic word in connection to abortion because I think the tone of the debate is too tilted that way already. But, the Democrats have brought this on themselves. That ringing sound you hear is that of Republican operatives calling their P.R. firms to have them prepare 15 and 30 second attack ads based on “The Slaughter Rule”.
The disagreements between the chambers may not all be over provisions related to funding abortion, but it sure seems that way. The Nebraska and Louisiana deals were to get Nelson and Landrieu’s votes.
The Roe decision, ever since it was decided, has distorted our political and constitutional system. This rule, and everything that has led up to it, will, at best, increase that distortion.
March 13th, 2010 | 12:27 pm
The Republicans can still rescue the nation by voting for effective healthcare reform!
The American citizens want it, only the conservative politicians and their donors stand in the way.
Put single-payer healthcare (Medicare-for-all) to a popular vote and see where citizens really stand on healthcare reform.
Wesley J. Smith Reply:
March 13th, 2010 at 12:31 pm
Jeffrey: Polls show overwhelming rejection of Obamacare. But that isn’t the point. If it is to pass, it is the BILL that must pass. There is no excuse for engaging in extra constitutional procedural methods. This is now way more important than health care reform.
March 13th, 2010 | 1:09 pm
[...] do not necessarily represent those of the Chicago Daily Observer.] Wesley J. Smith, First Things, Obamacare: Unleashing a Constitutional Crisis:If President Obama signs an Obamacare bill that was not actually voted on in the House of [...]
March 13th, 2010 | 2:01 pm
OK…How do we get our Constitution and our Constitutional rights back? Congress and Obama are trampling on them, and we can’t do anything! Someone please tell me….Tea Parties, protests, etc…don’t change the way our Senator, Bill Nelson in Fl. votes…he votes for Cap and Trade, Healthcare and fax and email him almost every day…No response..He’s got his..How about we get what they have — best healthcare our money can buy! Free gas for their cars, fantastic pensions, and the perks of being paid off by the Fed Govt if they vote the way they want! What a deal…where do we sign up????? Ahhhhh–Can’t take anymore of this insanity….THE CONSTITUTION RULES…I WANT OUR COUNTRY BACK…waiting for the mid term elections seems too far away.
March 13th, 2010 | 2:37 pm
The use of the Slaughter rule approach is clearly unconstitutional. I hope everyone votes straight Republican in the next election to protest the Democrats even considering going down the Slaughter road.
March 13th, 2010 | 2:55 pm
Jeffrey:
This bill (as you no doubt know) isn’t single-payer, not even close. It’s a crazy-quilt of insurance subsidies and mandates. Who knows how single-payer would do? I’d be against it, but at least it would be straightforward. The current bill should be scrapped, and I think the process should start over. I’d prefer single-payer (or another bill I didn’t agree with) passing openly over something like this being rammed through via skulduggery.
March 14th, 2010 | 1:48 am
It only gets better, turns out there’s a movie entitled “The Slaughter Rule”
http://www.imdb.com/title/tt0266971/
March 14th, 2010 | 4:31 pm
If this Slaughter idea goes through, anyone voting for it should be arrested by the local sheriff upon returning home for Easter break. It is totally against the constitution. The American public does not want this bill and it is being forced down our throats. This is not how our country works.
March 15th, 2010 | 8:07 am
SparKVarc,
Of course I understand the bill is not single payer or even close. It is an amalgam of useful reforms and insurance industry giveaways.
My point was that Congress could have avoided a ‘crisis’ by pushing through true reform, e.g., single payer, similar to universal Medicare.
Why is this wise route politically impossible in the US? Ask Congress and their donors.
For political reasons the Republicans will obstruct any and all genuine healthcare reform. Democrats resist proposing genuine reform because it benefits citizens and not industry.
March 15th, 2010 | 4:47 pm
I’m an independent who voted for Obama…that said, whatever party you belong…there is ABSOLUTELY NO JUSTIFICATION for the unconstitutional mandates, extortion laden, criminal concessions, IRS expansions and deficit widening articles in BOTH the Senate and House Bills.
There is a difference between real Healthcare Reform and a convoluted Healthcare BILL.
Has anyone has exercised their due diligence as citizens by studying the actual text in both versions… I did my best with the Senate version. It’s flaws are too many to enumerate.
Can the supporters of this Bill explain to me why they think its OK for an OBYGYN to struggle with $150,000 for malpractice insurance while the litigation industry continues to maraud the private healthcare system? Tort Reform. Where is it in the Bill? Show me.
Where will states (like mine in NY) procure the funding for the ADDITIONAL mandates and coverage for Medicaid under this BILL when we are already on the brink of insolvency with our current program? In view of that, tell me how its even MORAL that our state be tapped to pay for Nebraska’s Medicaid exemption (aka cornhusker bribe)?
As to the charge of GOP ‘obstructionism’ … did you guys miss the ‘Health Summit’? Did the Republicans set forth an alternate plan that would cost less and is IMMEDIATELY implementable…yes or no? Was Obama dismissive of the GOP…yes or no?
If you’re really non-partisan…check out the alternate solution from across the aisle.
http://www.heritage.org/Home/Research/Reports/2010/02/The-Health-Care-Summit-A-Chance-to-Start-Over-and-Get-It-Right
As someone who bought into Obama’s ‘HOPE AND CHANGE’ and ‘TRANSPARENCY’.. this BILL is the very ANTI-THESIS of what I voted for.
March 15th, 2010 | 7:17 pm
While I agree that your complaint is the larger one, there’s another constitutional issue that’s being overlooked:
How can reconciliation be used to change the funding of a law that doesn’t yet exist? The rules regarding reconciliation require that it be a modification to existing law. So for reconciliation to work, they’d basically have to re-pass the full Senate version as an amendment to existing federal law (like say Medicare).
This is important for multiple reasons:
1. reconciliation bills are more limited as to what they can mandate since it’s just supposed to be about funding. There’s question as to whether requiring coverage could be passed through reconciliation.
2. It would require a full vote from the house not just on the amendments, but on the full bill.
Just more proof that the Democrats are playing fast and loose with the constitution and the senate/house rules.
March 15th, 2010 | 8:01 pm
so, the majority of representatives elected by the people are not allowed to exercise their right to vote on a piece of legislation where the majority rules? I am confused, the preamble states it is to promote the general welfare of the people and yet, you rabid right wingers want to continue the price gouging and cherry picking of the medical providers. Did not the bushes and cheneys trample our rights by ramming down our throats two wars that are now approaching ten years in the making? Or how about Cheney’s goofy idea about his constitutional right regarding the separation of powers? Can not these wars be considered business enterprises than actual wars? Regarding abortion, if universal health coverage was available would not abortion become less prevalent since full medical coverage would be available for the family’s child?
Wesley J. Smith Reply:
March 15th, 2010 at 8:38 pm
mike gunderson: Yawn.
March 15th, 2010 | 9:45 pm
wesley j. smith: Yawn, yawn.
March 15th, 2010 | 11:09 pm
…et idem
indignor quandoque bonus dormitat Homerus
Wesley J. Smith Reply:
March 15th, 2010 at 11:23 pm
Translation: …and yet I also become annoyed whenever the great Homer nods off.
March 15th, 2010 | 11:42 pm
Let me see, there was a fellow named David Dreier r-Cal who was responsible for the Dreier doctrine very similar to the Slaughter rule. Kind of like the rage against the democracts proposed use of reconciliation previously used several times back in the Bush times.
March 16th, 2010 | 2:51 pm
If the Democrats try to push this through with a vote on a rule with no vote on the actual bill, it would be in complete violation of the Constitution.
They either vote on *and pass* the Senate bill as is, and present it for signature or it is not a law and, therefore, no reconciliation can be used for it. Period, the end.
All members of the House need to be sent to remedial U.S. Constitution classes and have their Representative cards revoked until they successfully pass the course, for even considering such a thing.
Note: I am a Libertarian, and I support neither the Democrats nor Republicans, as they are both equally responsible for the current A) out of control spending, B) out of control taxation and C) catastrophic national debt.
March 16th, 2010 | 7:55 pm
[...] not too late to turn back. If this debacle passes–particularly if the House tries to pass the Senate Bill without voting on it–it will tear this country into jagged pieces. But there is still time for sanity to prevail [...]
March 17th, 2010 | 5:59 am
Just ignore the Federal gang of 535 and any unconstitutional legislation vomited forth from therein.
Look to your local authorities for protection.
It worked for the freedom-loving people of the formal USSR.
March 17th, 2010 | 7:45 am
Hey Mike,
You should be much more careful when trying to change something (the Constituition) that has brought peace and prosperity to so many for so long.
So you believe in destroying the village, in order to save the village?
March 17th, 2010 | 8:42 am
[...] Obamacare: Unleashing a Constitutional Crisis » Secondhand Smoke | A First Things Blog Jump to Comments Obamacare: Unleashing a Constitutional Crisis » Secondhand Smoke | A First Things Blog [...]
March 17th, 2010 | 1:41 pm
Mike Gunderson —
The “deeming” process has apparently been used before, right or wrong. I say wrong no matter who has used it. Votes should be taken for every bill.
However, “deeming” has, up to this point, only been used in cases where the vote was going to pass anyway. Oh, and Pelosi and other Democrats declared it unconstitutional at various points in time. What changed other than they are in power now?
The Democrats are bribing and buying their way to “yes” votes and still are not able, apparently, to get them.
Using a “deeming” rule to COMPLETELY change the outcome of a BILL is unprecedented and unconstitutional.
And about Bush and Cheney….your talking points are tired and old. Democrats and GOP voted for both wars…there was no “ramming down our throats” done there. It was a Constitutional vote, which is more than I can say for your beloved Statist, anti-American Democratic President and leaders.
Perhaps the GOP can regain power in November and they can “deem” Obama unfit for office (which he is). Or how about they deem abortions outlawed? Or how about, if it passes, they just “deem” this whole Obamacare bill null and void. Would you still be in favor of such a maneuver then?
…Yea, that’s what I thought.
March 17th, 2010 | 1:48 pm
Mike Gunderson –
One more thought….recoconciliation has NEVER been used to radically redefine and takeover an industry ….NEVER.
When reconciliation has been used by Republicans every Democrat has argued against it. Again, why the change of heart, Dems?
Show me where Bush EVER used reconciliation to take over 1/6 of our economy?
….Crickets….
March 17th, 2010 | 2:51 pm
[...] talks of the constitutionality, or lack thereof, of this move by Pelosi. Similarly, at Secondhand Smoke blog, Wesley J. Smith talks about the actual Constitutional Crisis: …..But you can’t pass an internal procedural rule that effectively revokes the [...]
March 20th, 2010 | 2:27 pm
[...] First, this bill may fall apart under the weight of judicial scrutiny, given the myriad bribes and singular giveaways that have been stuffed into it. Second, the way this bill is looking to be semi-passed, via the “deeming” process Repres…. [...]
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