The Slaughter Solution, Obamacare, and Constitutionality (Updated)

Previously I mentioned that the constitutionality of Obamacare has been under question for a while now, especially with regards to the individual mandate for insurance. The more significant question now seems to be the constitutionality of how it will be passed. Probably due to the unpopularity of the bill, it doesn’t seem  likely that the bill will actually pass an up or down vote at this point. The House has passed one version, and the Senate has passed another, but the two proposals have to be reworked, agree with one another, and then be re-voted on. Since that doesn’t seem likely, especially given that the Senate Republicans can now filibuster the bill, the Democrats are resorting to thuggery to force the bill through.

Here’s how it’s working. The House doesn’t like the Senate bill, but they can still vote to pass it, which would allow it to be sent to the president. The Senate probably won’t be able to pass either version of the bill again, so it comes down to the House. So instead of actually voting on the Senate version — a vote that would likely fail — Pelosi wants to employ what is known as the Slaughter Rule, and simply vote for a resolution that says they already passed the Senate bill.

Only one small problem. That’s kind of in direct violation of the Constitution.

Former Federal Judge Michael McConnell has commented on this:

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. 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.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The relevant section of the Constitution:

U.S Constitution, Article I, Section VII, Clause II.

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…

As I’ve already noted, the Democrats should know that this move is unconstitutional, and don’t seem to care.

So, here’s some coverage of just what Pelosi is planning, and why:

Ezra Klein at the Washington Post:

Here’s how that will work: Rather than passing the Senate bill and then passing the fixes, the House will pass the fixes under a rule that says the House “deems” the Senate bill passed after the House passes the fixes.

The virtue of this, for Pelosi’s members, is that they don’t actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn’t voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.

It’s a circuitous strategy born of necessity. Pelosi doesn’t have votes for the Senate bill without the reconciliation package. But the Senate parliamentarian said that the Senate bill must be signed into law before the reconciliation package can be signed into law. That removed Pelosi’s favored option of passing the reconciliation fixes before passing the Senate bill. So now the House will vote on reconciliation explicitly and the Senate bill implicitly, which is politically easier, even though the effect is not any different than if Congress were to pass the Senate bill first and pass the reconciliation fixes after. This is all about plausible deniability for House members who don’t want to vote for the Senate bill, although I doubt many voters will find the denials plausible.

But the question remains: Will the bill pass? Pelosi seems confident. “I have no intention of not passing this bill,” she said. Her political argument was a lot clearer than her procedural preference. Time, she argued, has been the Democrats’ worst enemy. “Every interest group that doesn’t want this bill, including the Republicans, benefits from continued delay.” The absence of a single bill that’s not changing or being merged or being amended has meant that Democrats can’t explain what’s actually in the bill with any confidence or clarity.

The Washington Post:

The tactic — known as a “self-executing rule” or a “deem and pass” — has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.

“It’s more insider and process-oriented than most people want to know,” the speaker said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people don’t have to vote on the Senate bill.”

Some commentary and analysis on the Slaughter Rule, and opposition to it:

Legal Insurrection points out that relying on the Slaughter Rule will destroy the legitimacy of the legislation, and the Congress, regardless of constitutionality.

Michelle Malkin addresses the issue, referencing Mark Levin.

Carol Platt Liebau at Townhall also mentions McConnell’s column.

E Pluribus Unum at Red State discusses the consequences that Democrats could face if they resort to the Slaughter Solution (Thanks Nice Deb for pointing this out):

The American public was at first peeved about this government power grab, leading to wildly entertaining August recesses for congressional Democrats. As the Dems shoved non-matching bills through House and Senate, America got positively miffed. Witness McDonnell, Christie, and Brown.

Now America is flat irritated. And if the Dems try sporting this blatant middle finger at the Constitution and America, we will all see what happens when America is finally angry. Like Dan Perrin, I think Democrats will back down before doing this. But we’ve both underestimated their stupidity several times in this process. Nothing’s a safe bet anymore.

Before this, Democrats were already going to lose HUGE in November. There are more House Democrats retiring in “safe” districts than there are Cincinnati Bengals and Dallas Cowboys in prison. But if they try this stunt, the ensuing electoral revolt will be epic and irreversible, resulting in a Democrat Party crippled so irredeemably that I predict a new center-left party will emerge in the next 10 years, attempting to shed the stench of scandal and disrepute that will be permanently connected to the Democrats. Most likely the partisan press will accelerate their own death spiral as they are unwilling to speak ill of the Democrats.

But that is November. What will happen in March?

Six things I can think of, the first three within days. I couldn’t say what order, because things will move pretty quickly. So I list them how my mind sorts them.

The Reaganite Republican offers a very thorough list of conservative criticism, analysis, and opposition to the whole health care mess, and the Slaughter Rule in particular. Well worth checking out, as he has done more homework than me.

And now for a hypocrisy check: It seems that in 2005, the Democrats violently opposed the Slaughter Rule as unethical — when the Republicans used it. Nancy Pelosi led the charge, even going so far as taking the matter to court. The Washington Examiner, Hot Air, and Rick Moran at American Thinker all work to correct Pelosi’s conveniently short memory.

Two key points need to be made here. One is that the Slaughter Rule is clearly unconstitutional, and needs to be struck down so that neither party can employ it. The other is this: if this health care bill is passed into law using the Slaughter Rule, impeachment proceedings need to start immediately against Nancy Pelosi for violating her oath of office.

*Update*

Michelle Malkin has more to say. Apparently the Republicans are attemptingt o maneuver so that the Slaughter Solution can’t be implemented. Malkin also mentions that Democratic representative Jason Altmire has condemned the Slaughter Solution. Steve Foley at Minority Report also mentions Altmire, and includes a video:

The crew at the American Spectator is also picking this up. Michigan Representative Thaddeus McCotter weights in, and Philip Klein wonders why Democrats would want to pass something without having voted on it.

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  1. Obamacare, Slaughter, and Stupak « The Republican Heretic

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