McConnell on Slaughter

Prof. Mike McConnell says (my emphases and comments added):

In just a few days the House of Representatives is expected to act on two different pieces of legislation [This is correct. This is precisely correct. But as we shall see, McConnell will spend the rest of this article getting this critically important fact wrong.]: the Senate version of the health-care bill (the one that contains the special deals, "Cadillac" insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. [See? We'll come back to this.]The House will likely adopt a "self-executing" rule that "deems" passage of the amendatory bill as enactment of the Senate bill, without an actual vote on the latter. [Without a separate vote on the latter. The House is still going to vote. That vote will be an up-or-down vote on the Senate healthcare bill, and everyone is going to know it. McConnell knows it: if he didn't, he couldn't have written this article. Everyone in the House will know it: Pelosi will make damn sure they know the stakes. And everyone else in America will know because this vote is not taking place in a vacuum! The idea that the ball will be hidden by this procedure—I find that weird. It is going to happen in the blazing glare of every lumen that the blogosphere and the mainstream media can muster between them. It's as if everyone is in the know but for some reason has to pretend that it's a secret and that we aren't all in the know.]

This enables the House to enact the Senate bill while appearing only to approve changes to it. [This is the factual mistake that fatally holes McConnell's entire analysis in this piece, as it did in his similar article earlier this week. Let's get this straight, because it's important. What the Slaughter solution does is to allow the House to approve two bills on a single vote; in this case, the two bills are the Senate HCR bill and a reconciliation bill. But n.b., it is the votes that are consolidated, not the bills. McConnell seems to believe that the reconciliation bill amends the Senate bill. It does not. The reconciliation bill amends the Public Law that will come into existence when Obama signs the Senate bill. This difference is subtle but critical. It is the crux of the entire matter; if you don't get it right, your analysis is doomed.] The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).

This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. [Quite so. And that will happen if the House approves the Senate bill, whether it does so seperately, or jointly with another bill, which is what the Slaughter solution does.] If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement. [And here we see in action the problem I mentioned above: McConnell doesn't seem to fully appreciate what he admitted in his opening paragraph: that the reconciliation bill is an independent bill, not an amendment of the Senate bill. That's how it's written. Read it! The reconciliation bill operates on the enacted public law which the Senate bill will become. What's more, it's difficult to parse exactly what McConnell's problem with the procedure is. Suppose the House passes the Senate bill on one vote, and then passes the reconciliation bill on an entirely independent vote. Then they would have voted on two independent bills, right? So vote on the very same bills together. Does one of them become an amendment of the other simply by virtue of it being voted on at the same time, even though you acknowledge that it's an independent bill when voted on separately? What exactly makes the "sidecar bill" an amendment of the main bill? If the other bill voted on with the Senate bill was something wholly different—renaming a post office or something—would McConnell say that it was an amendment to the Senate bill? I think McConnell has simply been bamboozled by the fact that the two bills are pretty similar and will be voted on together.]

Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School's Jack Balkin asserting that a "rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House's powers under Article I, Section 5, Clause 2."

But that does not actually address the point at issue. [Right. Precision is important here. This is a very subtle issue, so it must be treated with precision.] No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. [And we're back to imprecision. The slaughter solution does not consolidate two bills into a single measure. It applies the same vote to what McConnell has already conceded are "two different pieces of legislation."] That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately. [It is, so long as they are independent bills and they are not consolidated. That's why the distinction between tethering the votes vs. tethering the bills is so important. So long as the measures are (and are treated as) wholly different and independent bills by the House, they're on solid ground.]

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. [True, so far as I have been able to determine.] Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote. [Novelty is a good reason for skepticism, concern, and close scrutiny, but is not by itself unconstitutional.]

Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

Whether the courts would entertain such a challenge is a harder question. [No kidding. Not only whether they would entertain it—who has standing? See Friends of Earth v. Laidlaw, 528 U.S. 167, 185 (2000); Steel Co. v. Citizens for Better Environment 523 U.S. 83, 109-10 (1998); cf. Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (per McConnell, J.)—but what will they do with it?] The "enrolled bill doctrine," announced by the Supreme Court in Marshall Field v. Clark (1892), holds that the courts will not question whether a bill certified as having passed both houses of Congress was properly enacted. More recently, in United States v. Munoz-Flores (1990), in a footnote, the Supreme Court stated that Field concerned only the "evidence" the courts would consider in such a challenge and that when "a constitutional provision is implicated," the enrolled bill doctrine would not apply. These holdings are not easy to reconcile. The D.C. Circuit, in a 1995 case, essentially said that it did not understand the Munoz-Flores footnote and thus would not follow it. [It's worth noting that in Munoz-Flores, the court did tackle the origination clause question asked by the case on the merits. Only Justice Scalia, in a solo concurrence, relied on the enrolled bill rule to reject the challenge.]

The Supreme Court might well hold that Field governs only questions of historical fact, while Munoz-Flores governs questions of constitutional interpretation. In Field, the question was what text passed the two houses of Congress; there was no doubt that only what the two houses passed could be treated as law. Here, by contrast, there will be no dispute about what occurred in the House; the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, "The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . ." [But this begs the question: what are the Constitutional restraints at issue here? Of necessity, because there is no other text to which they can appeal, critics hang the full weight of their argument on Article 1 § 7, but its requirements won't support such a load. Section seven requires passage in both houses before presentment. It does not specify any particular method of passage. Anything more that is wrung from this is interpretation and construction—which are fine, but not to be confused with the plain meaning of the text. Now, you can appeal to the original meaning, and argue that there was a presupposition that business would be done by votes. To prevail on that claim, however, you would need to rebut the combined force of section five's authorization for each chamber to create rules and the long-standing use of that authority in both chambers to do business in other ways. Cf. Marsh v. Chambers, 463 U.S. 783 (1983); Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 681 (1970) (Brennan, J., concurring); Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004)). Moreover, you would also have to face the point that to the extent the framers presupposed a vote, they most likely also presupposed a simple majority vote. Does that presupposition also trump the myriad submajority and supermajority rules adopted over the years? See, e.g., Rappaport & McGinnis, The Constitutionality of Legislative Supermajority Rules, 47 Duke L J 327, 327–30 (1997); Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. of Pol. Philosophy 74 (2005). Why not? This is an uphill climb to say the least.]

One thing is sure: To proceed in this way creates an unnecessary risk that the legislation will be invalidated for violation of Article I, Section 7. [Amen!] Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Added: Balkin has similar views.

Post facto:
Deem and pass deemed to risky (3/20/2010)
Deem and pass: a slight return (1/6/2011)