Here is my question Piker. If reconciliation requires the bill be passed by both houses, and the U.S. Constitution has the same requirement, and the house passes what you have described as Bill B, and the Senate then votes to approve of Bill B, then why must bill A be approved in the House when Bill B has passed both the House and Senate?
See the rest of the post for his response to McConnell.
Bricker, get back in here! I was waiting just to get to your explanation, knowing your attraction to such debates. Very interested in your rationale. Does this stand on its textualist merits, even if it’s just a thought experiment at this point, given that the ship has long sailed in terms of precedent set by prior votes and decisions? Or do you come to that conclusion for some other reason?
Maybe it’s self-evident to someone more expert than me, but I see the OP’s point. Some of the noise on talk radio points to decisions on line item vetoes as support for the unconstitutionality of this rule–i.e., that this was deemed unacceptable becase the Constitution requires that a Bill be passed by both Houses with identical text, and only then can it be installed as law. IOW, a real “live” Bill, with text to read, is the subject of a vote, otherwise we’re missing a part of the equation. Perhaps that’s an pedantic procedural distinction, but then, so seems the Slaughter rule. Worlds turn on such points. Here’s one expert’s take on it:
He doesn’t seem to offer any wiggle room. And he seems damn credible (from the cite: “Mr. McConnell is a professor and director of the Constitutional Law Center at Stanford Law School and senior fellow at the Hoover Institution. He formerly served as a judge on the United States Court of Appeals for the 10th Circuit.”). Whether or not this has occurred a million times, does this pass constitutional muster from reading the text alone?
Whether or not this is constitutional, it’s clearly a way to avoid political responsibility. Otherwise, they’d just vote on the damn Bill, right?
Your thoughts would be appreciated if you have a few minutes.
Interesting read. In part, though, it reads to me like, “Enough with all these pedantic, ‘angels on the head of a pin’ debates over arcane procedural points! Otherwise we’ll never get this pedantic, ‘angels on the head of a pin’ arcane procedure executed.” IOW, how can he dismiss all this as pedantic, when that whole @#$%ing debate is, including the rule in question? Somebody’s right, and handwaving away (to any extent) “hyperformalist” arguments, over an issue of form, seems, well, to miss the point a bit. (A bit. I realize he offers more than that. I would love to hear him and McConnell debate this.)
Again, though, interesting.
There are very particular reasons the bill is being pushed through this way most of which have to do with Republican obstructionism. If not for that you would almost certainly see a vote on the “damn Bill” as is normal (if anything can be said to be normal in our legislature).
IANAL but I am not seeing how your guy is reading the Constitution on this one:
So, the relevant bits would seem to be:
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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
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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 first bit says nothing about the requirements to pass a law…just says they have to pass it and elsewhere in the constitution we know they are explicitly granted the right to set their own rules.
The second part seems to me to say they have to vote and have their votes recorded. It makes no distinction on what MUST be voted on. Hell, pisses me off that they attach all sorts of riders to other legislation so we get the “Save the Babies” bill which no one can vote against to which they attach “Bridge to Nowhere” riders. The constitution does not say you must vote on issues in a particular way, separately or otherwise. It just says there needs to be a vote. And HCR will get a vote.
Not seeing the problem constitutionally. We may wish there was a more refined system but working with what we’ve got it seems, to my untrained legal sense, to pass muster.
Of course it seemed to pass muster with the trained legal sense of the courts (as cited upthread) already as well. While my analysis may be in error I feel safe in the conclusion.
Is there a way for a member of the House to vote for the unamended bill and against the amended bill?
I doubt it. Do you think there should be that option?
To get completely nitpicky, taken to its full extreme this argument would hold the following:
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The House passed a measure that reads, “Resolved, if the Senate concur, that whereas…” [3500 words of preamble omitted], “now, therefore, be it enacted that…” [28,300 words of mind-numbingly legalese substantive text of law omitted].
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The Senate passed a measure that reads, “Resolved, if the House of Representatives concur, that whereas…” [3500 identical words of preamble omitted], “now, therefore, be it enacted that…” [the same 28,300 words of mind-numbingly legalese substantive text of law omitted].
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The two measures, as passed by the respective houses of Congress, are not word-for-word identical. They therefore did not pass the same law, and (presuming the President then signed it), attempts to enforce it as the law of the land are unconstitutional.
See the problem here?
Signed what, precisely? Isn’t that the issue?
In my hypothetical example, the measures are identical except for the words “Senate” and “House of Representatives” respectively in the initial phrase of the enabling resolution – and it is the [identical] text which those two enabling resolutions pass which is signed into law by the President. That was my point: the actual content passed, not the procedural method used to pass it, is what must pass muster.
By the way, I may be guilty of aiding and abetting the misnomer in the thread title: I made a pun in the related Pit thread based on the similarity between “deem and pass”'s alternate title of “Slaughter rule” after Rep. Louise Slaughter, under whose chairmanship it was accepted by the House Rules Committee, and the “Slaughterhouse cases”, the former, highly restrictive interpretation of the 14th Amendment established by SCOTUS in rejecting a challenge to a State of Louisiana statute regulating New Orleans slaughterhouses, brought by the butchers who would have been required to comply with the statute and use them.
I’m not understanding it that way. My impression is that there’s too much political peril for certain Dems to vote yea on the unamended Senate bill, and if they were forced to do so, Ms. Pelosi would not have enough votes. Game over. This provides enough cover that it’s more likely to get the necessary support. But if the House were to actually vote on the Bill, and they had enough votes, nothing the Republicans could do would stop it. IOW, this is not a “Republican obstructionist” issue. This is a Democratic “I’m not voting for that @#$%ing thing, not officially” issue. No?
If you’re referring to the filibuster that “forces” the reconciliation approach, I don’t see it that way. Them’s the rules. If the Slaughter Rule is constitutional, same deal. But filibusters do not justify an unconstitutional tactic, if that’s what the Slaughter Rule does.
Yes, I’m hearing lots of concurring opinions (which have the weight of prior decisions, apparently). I think the McConnell camp, as I’m reading it, says you can’t amend a bill that has not been voted on. To “deem the Senate bill passed” in the same vote means, effectively, that they are voting only on the amended bill, which means that they have not passed the exact bill, same text. And they must start with that act, or the are violating Article I, Section 7.
This is clearly (on both sides) a nitpicky procedural debate, one of specific forms. But it’s those forms that are delineated in the Constitution and if the McConnell argument is correct, doesn’t matter how picky it seems. You just can’t do it.
Balkin, obviously, disagrees. He says this does not take two separate measures and melt them together into one (as McConnell asserts), it merely combines the votes on two items that still exist as separate measures, happily occupying the same bill like college roommates.
The Republicans used Deem and Pass more than 100 times when they had control of Congress under Clinton and Bush. Why didn’t they or any of their Wall Street Journal lackeys ever notice it was unconstitutional when THEY were doing it?
Dunno. But that’s not really an argument. It’s either unconstitutional or it isn’t, whether the D’s or the R’s do it, whether the WSJ speaks up or not.
IOKIYAR, of course! 
Just as an update, the Democrats have decided not to use deem and pass on this bill.
They have enough votes to do it the “normal” way?
No. Can you please exlain?
Here is my understanding of what could occur. Correct my misunderstandings if and where they exist, please.
The House of Reps has proposed to pass a bill, let’s hypothetically call it bill H.R.B 100B. Then there is the Senate bill, let’s call it SB 100A. H.R.B 100B is SB 100A but with amendments and corrections to the Senate bill. The House of Reps passes H.R.B
100B, which is the Senate bill with amendments and corrections. Then, H.R.B 100B goes to the Senate, and they vote to approve H.R.B 100B. It seems to me, the House and Senate have passed the same bill in H.R.B 100B, or am I missing something?
No idea. Steny Hoyer claims they do. But here’s Bloomberg and MSNBC confirming they’re dropping deem and pass:
http://www.bloomberg.com/apps/news?pid=20601087&sid=aSCtesuuV.1E&pos=8
http://www.msnbc.msn.com/id/35961584/ns/politics-health_care_reform/
That’s smart. It would have been perceived as sneaky.
I think you’re overlooking the fact that there would be a vote to attach the self-executing rule to the Amended Bill. It’s not as if House leadership would declare by fiat that the vote on the Amended Bill “deems the Senate bill passed”. There would be a vote to include the self-executing rule as part of the Amended Bill. And then they would vote on the Amended Bill, which includes that rule.
I have my problems with the Marshall Field abstention doctrine (which is what the D.C. Circuit relied upon in dismissing the earlier challenge to this rule). But even if a court were to look at the merits of this process were it to be challenged in court, I think it will easily pass muster. Everything gets voted on.