Constitutionality of the Slaughterhouse Rule

Great Debates
1

The Slaughterhouse rule, also called the Self-Executing rule, as I understand it, will permit the House of Representatives to vote on the package of amendments and corrections to the Senate bill, and if this package passes, then “deem” as passed A.) the Senate bill and/or B.) the amended and corrected Senate bill, without any actual vote on either.

*“self-executing rule,” also known as a “hereby rule.” Under this amazing procedural ruse, the House would then vote only once on the reconciliation corrections, but not on the underlying Senate bill. If those reconciliation corrections pass, the self-executing rule would say that the Senate bill is presumptively approved by the House—even without a formal up-or-down vote on the actual words of the Senate bill.

Now, the question is whether this is constitutional. There are presently two provisions being relied upon to condemn this procedure as constitutionally anemic.

Article I, Section 5: Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.

Article I, 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; 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.

Now, from my understanding and reading of the available news sources reporting on this, there will be language in effect stating should the proposed amendments and corrections package pass, then the Senate bill/and or amended Senate bill will also be passed and this language will be inserted into the amendments and corrections package to the Senate bill.

The other scenario is there will be a House of Reps vote on the use of the self-executing rule, with the understanding the self-executing rule will be used in regards to the proposed amendments and corrections to the Senate bill. In other words, it will be understood the self-executing rule, if passed, will be used to assert the passage of the amendments and corrections package to the Senate bill will mean or deem as passed the amended bill and/or the underlying Senate bill.

There are some plausible arguments asserting this is unconstitutional and I hope to inspire a dialogue as to the veracity of these arguments and the constitutionality of this procedure.

The argument(s) claiming this procedure is unconstitutional are:

  1. Article I, Section 7 above asserts bills are to be voted on and the recording of “yeas and nays” for or against the bill are to be recorded, along with the names of those voting on the bill.
  2. The House has not passed the same bill as the Senate, as required by Article I, Section 7. In other words, no single bill, in the same form, has passed both houses.

Is this Slaughterhouse rule, known also as the self-executing rule, constitutional?

2

In a sister thread in this forum, Whack-a-mole dug up some cites on this matter.

I am not a lawyer, so I can’t really judge the merits of the arguments, but it looks like the process is (probably) legal, if not palatable.

Here is the sister thread: http://boards.straightdope.com/sdmb/showthread.php?t=555409&page=2

3

Um, read the part I bolded. How can they vote on the rule, then vote on the amended bill, and then you claim there was no vote on neither?

This is, straightforwardly, a provision calling for a Congressional journal to record proceedings. You don’t mean to suggest that all laws passed by voice vote are invalid? Because then we would have a problem.

Right. You said that the House is thinking about voting (yeas or nays!) on a rule that would incorporate the Senate bill into the Amended Senate Bill, and then voting (yeas or nays!) on that total package. How is this not the House passing a bill?

4

I am familiar with the second case and there is presently some disagreement in the legal field as to whether Field actually forecloses this issue for us. Let’s also not forget the U.S. Supreme Court can overrule Field if it is not distinguishable.

United States v. Munoz-Flores, 495 U.S. 385 (1990) FOOTNOTE 4: Justice SCALIA apparently would revisit Powell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Field v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence” the Court would consider in determining whether a bill had actually passed Congress. Id. at 670. Appellants had argued that the constitutional clause providing that “each house shall keep a journal of its proceedings” implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. 1, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id. at 143 U. S. 670-671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments” demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id. at 143 U. S. 672. Where, as here, a constitutional provision is implicated, Field does not apply.

In other words, since there is an allegation of a constitutional provision(s) being implicated, then Field does not apply would be the argument.

5

(It’s called the “Slaughter Rule”, even in Fox parlance - after Rep. Louise Slaughter, chair of the House Rules Committee. Please get your code words right).

Voting “yes” on a bill that says if it passes, then another bill is also passed, is a constitutional problem how? And why hasn’t it been for the last couple of centuries, under both parties?

6

After Calling Self-Executing Rule Unconstitutional, Pence Admits He Previously Voted For It

Eric Cantor Agrees That ‘Deem And Pass’ Is Legitimate
If self-executing rules actually posed some sort of constitutional issue, the hard right would refer to them by their proper name rather than this Rovian “Slaughterhouse Rules” thing.
They’re just being assholes trying to fuck up the country some more.

7

Well, voting to amend a Senate bill may not be the same as voting on the final product, i.e. it is not the same as a vote on the amended Senate bill, and it certainly is not a vote on the original Senate bill. Perhaps the Constitution requires an actual vote on the amended version of the bill, as opposed to a single vote to amend the legislation. Not sure myself.

Well, I cannot agree with your use of the word “incorporate.” There are two procedures here, and from what I can tell, only one of them is being used. Furthermore, a vote on a rule or to use a rule is not the equivalent as a vote on the bill or the law itself. The rule is not the bill, the rule is not the amended bill, the rule is not the proposed law, the rule is not and cannot ever be the law of the land, and this is important for purposes of Article I, Section 7 of the U.S. Constitution. This section requires a vote on the proposed law, a law to govern everyone person in the United States, and not some rule equating into a vote for the proposed law.

Article 1, Section 7, requires a vote on the law itself, the bill, and not some rule. Voting on the use of a rule does not satisfy the Constitutional requirement the bill itself, the law being proposed, receive a vote.

Now, those are the arguments asserting the unconstitionality of the Slaughterhouse rule. At this present moment, I have not read any persuasive rebuttals and I find the logic of these arguments rather persuasive. However, given my nature, while I find this logic persuasive I also know there may exist some strong rebuttals or arguments in favor of the constitutionality of the Slaughterhouse rule and hoped to read some by posting this thread. My goal and aim is to acquire a better understanding of all the arguments and issues regarding this topic to better inform myself as to which side is likely right or wrong.

So my presentation of these arguments, although I presently find them persuasive, should not be construe necessarily as being my position. Furthermore, my objections to the rebuttals or arguments for constitutionality, playing devil’s advocate, is an effort to analyze the efficacy of the opposing position, and not so much a display I disagree. At this present time I am not sure who is right, or who is wrong, but I do have one side of the argument and it is rather persuasive. I hope to read an equally persuasive and compelling counterargument.

8

Do you understand the part about there being two pieces of legislation passed by the same vote?

9

I apologize for the typo but it does not really add or detract from the substance of the arguments. However, thanks for brining to my attention the error, I will be certain to call it the “Slaughter House” rule, as some are calling it, or the “Slaughter Rule” as you demand, and if anyone else has an opinion as to how it should be called, please let me know so I do not offend you or leave anyone out.

Well, is this really what they are doing? From my understanding, and it may be incorrect, this is not what they are doing. However, to answer your question, a phrase in the bill which reads, “If this legislation is passed, then bills 1-1,000, 000,000,000,000 are also passed,” does not satisfy the Constitutional requirement the bill, the law, receive a vote. I do not think it would be accurate to assert all bills numbering 1-1,000,000,000,000, 000, received a vote. Maybe I am wrong.

10

This has already been ruled on. Not by the SCOTUS but pretty close.

This has been used (according to the linked article) since 1933. Seems a great deal of legislation would be called into question if the SCOTUS determined all the self-executing things passed already were in fact unconstitutional.

I seriously doubt the SCOTUS will initiate a constitutional crisis and overturn this. Some court watcher somewhere else (I forget where now) opined he doubted even Scalia would side with the Reps on this one.

11

I really wonder why the constitution would be against this. In the sense of, why would the writers care? What potential problem is there with this?

ETA: Might I suggest the OP report his first post and get the title changed. I wondered why the rule sounded wrong.

12

Call it whatever Fox tells you to call it, I don’t care.

Yes. Why do you think otherwise?

You are. A vote constitutes a vote. What’s the conceptual problem here?

13

This really avoids the question of whether it comports with the dictates of the U.S. Constitution. It may in fact adhere to the dictates of the U.S. Constitution but really no argument showing why has been presented. I am not asserting the methodology has not been presented because it certainly has, as you allude to the methodology above, but no argument has been made in support of the constitutionality of the methodology.

However, based on your logic, a vote for bill 0 can constitute as a vote on bills 1-1,000,000,000,000,000, although such bills, not one of them, were voted on themselves. Rather a specific bill, bill 0, with language in it indicating the passage of bill 0 means passage of bills one through a trillion, in your argument constitutes as a vote on all of those bills. I have a very difficult time accepting this proposition because none of those other bills number one through a trillion were voted on.

14

I’m guessing the United States Court of Appeals, District of Columbia Circuit, wrote why they deemed it constitutional.

15

Let me break this down.

The House is considering Bill A and A1. A1 contains Bill A plus some more politically palatable provisions.

The leadership decides to have a vote on a provision which says “Passing A1 is tantamount to passing A”. That passes with a majority vote (yeas and nays!).

Then the House considers A1, into which A has been incorporated. That passes with a majority vote (yeas and nays!).

How is this “not having a vote”?

16

They are voted on, in the vote on what you call Bill 0, which “deems them to have passed”.

Again, what’s the problem?

17

Or more easily:

House is considering Bill A and Bill B.

For reasons that can be explained in another post, Bill B is what’s going to become law, but both need to be passed in order to do that.

House votes on a rule that basically says this: “Bill A + Bill B = Bill C!” That passes by a majority.

New Bill C, which is simply B with A incorporated, is passed by a majority.

What on earth is wrong about that?

18

Applying your example to the health care bill, the Senate passed Bill B. Said bill cannot and should not become law unless passed by the House and then signed by POTUS. Passing Bill C is not the same as passing Bill B, and just happens to be politically expedient for the current majority party. The Dems are attempting to end run around important procedural safeguards in place to prevent exactly this sort of foolishness. If the Dems had any integrity and party discipline, they should have an honest vote on Bill B. If it fails, then they need to accept that with good grace and either start over, or move on to something else. Instead, they’re insiting on cramming a bad bill down the country’s throat for largely partisan reasons. If they do that, I hope it costs them dearly in the mid-term elections, and beyond…

19

So, you obviously care about substance rather than process; and will say gibberish about process that “sounds right” and “makes you angry” in order to muck up the debate.

Btw, in my example, the current Senate Bill (the one that passed, you know, with 60% of the vote, so much for cramming it down our throats) was Bill A. The Amended Bill is Bill B. After the House acts, the Senate will vote on Bill B. Then both houses will have signed off on the same bill. What is so hard to understand about this?

20

Except for the part where it says “Bill B is deemed to have passed”.

They will, as part of the vote on Bill C. Do you really not understand?

I do understand your frustration at having your party’s obstructionism thwarted, but really, it’s time to be responsible.

Oooh, more cramming down throats! Fabulous!