An unconstitutional solution

Michael McConnell, a law professor at Stanford and a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the “Slaughter solution” for enacting Obamacare is unconstitutional. The argument, which appears in the Wall Street Journal, is straightforward:

The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.
Senate rules protect against majoritarian overreach by allowing a determined minority to filibuster most types of legislation. The majority needs 60 votes to override a filibuster. One exception, adopted in 1974, is legislation that makes adjustments to spending or revenues to reconcile current law to a budget resolution that has passed Congress. These are called reconciliation bills, and they require only a majority vote.
Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.
That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill’s offensive features.
The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.
Enter the Slaughter solution. It may be clever, but it is not constitutional. 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.
To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.
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.

McConnell’s argument seems unassailable. The problem is getting a court to entertain the argument, if we get to that point. As Andy McCarthy reminds us, when Democrats, including Louise Slaughter herself, challenged the use of a similar device to raise the debt ceiling, the D.C. Circuit decided that it could not reach the question due to the standards of deference that apply between departments of government. The same might happen here.
Nonetheless, a legal challenge, including a petition to the Supreme Court if necessary, represents another obstacle to Obamacare in the event that the House employs the Slaughter solution.
SCOTT adds: Tony Blankley writes to observe that the debt ceiling precedent cited on the justiciability issue addressed by Andy McCarthy is inapposite (Blankley also notes that the district court never reached this issue in that case). Blankley cites this comment on the debt ceiling/Gephardt rule from tomorrow’s syndicated version of his weekly column:

Some have argued that the “Gephardt Rule” (House Rule XXVII) -in which a similar “self-executing rule” “deemed” the house to have voted on a new debt ceiling, is valid precedent. Wrong. That rule was for a joint resolution–not a bill. A joint resolution is a guide to the house. It is not a bill under the constitution, and has no force of law. Because a president has nothing to do with a resolution, a self-executing rule is valid for a resolution, but not for a bill.”

Shannen Coffin comments further on the justiciability issue, suggesting the extreme unlikelihood of help from the courts. Blankley concurs with Professor McConnell’s assessment of the constitutional issue raised by the Slaughter solution in his Washington Times column today.

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