Slaughter: dumb but constitutional

When we first heard about the proposed "Slaughter solution," I expressed skepticism. As the details have come into focus, however, and having had time to reflect, and given the rising tide of silliness, it has become clear that there is more to say.

As I understand it, Slaughter's proposal works like this. Most of the House's business is done under ad hoc rules setting the ground rules (time allotted, amendment allowed or not, and so on) for consideration of a given bill. Instead of adopting a rule bringing the HCR bill to the floor for discussion and vote, the House would vote on a rule that declares that the Senate HCR bill and the separate reconciliation bill have been approved by the House. On that understanding, I struggle to see how this is unconstitutional.

The Constitution requires bicameralism and presentment: "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." Art. I § 7 Cl. 2. The Senate has voted on this bill, and the President will presumably sign it, so the issue is the House. The hysteria about self-executing rules seems to be based on the notion that the House will somehow pass the Senate bill without voting for it, but that isn’t the case: All that the Slaughter tactic does is change the title of the vote and have the House vote on two bills at once. There will still be a vote in the House, and everyone present will understand that this is the vote on the Senate Obamacare bill. The difference, it seems to me, isn’t even a question of form: it’s a question of labeling.

Whether the House can vote on two bills in the same roll call vote is a distinct issue, and one that merits a closer look. Article 1 § 7 requires only that a bill shall have “passed” both Houses before presentment. It doesn't say how, and as we know, Article 1 § 5 authorizes Congress to provide its own rules, of which procedural rules are the sine qua non. In some quarters, I’m seeing section five being read to require a recorded vote if one fifth of the members so ask, and while that's correct, it's imprecise: on what action does section five require a recorded vote, enough members having asked? Not “on passing a bill,” but “on any question.” Passing a special rule (vel non) is a question.

Notice also that it is the votes that are tied together, not the bills. After the vote, assuming things go Pelosi’s way, there will be two bills: The HCR bill that has also passed the Senate, and reconciliation bill that has only passed the House. At that point, the President can sign the bill that has passed both. (Section seven clause three is also being wielded, but it's inapt; the provision governing general legislation is clause two, not clause three.) He can't sign the reconciliation bill because the Senate hasn't acted on it (“[e]very bill which shall have passed,” past tense, “the House of Representatives and the Senate,” conjunctive, will go to the President’s desk for his signature), but there is no reason why he would be asked to. Rather, the Senate will be asked to act on the reconciliation bill, and it will presumably ignore it. (What, after all, is the Senate’s institutional motivation to waste its time trying to amend a law that emerged from a House-Senate conflict where its own version prevailed over the House’s version?)

All of which leads us to ask the obvious question: If the practical effect is so limited, why is this tactic being floated in the first place? Two reasons, both of them ill-conceived. It's being done to assuage House members who don't trust the House leadership to bring up the "fixes" package (which is futile, since the real obstacle to that package is the Senate), and it's being done to provide members with some cover (which is futile, because of course the whole point here is that the House will vote for--or, we hope, against--the Senate bill). So this inelegant approach is fundamentally stupid, but that doesn't make it unconstitutional.

Added: just to sharpen the point, Senator Hatch says:

They would have to think the American people are absolutely stupid to not understand that voting for the rule passes that bill. It's the same as a vote for the bill except it is illegal under Article 1, Section 7 of the constitution, which says that have to vote up and down on these bills in order for the president to sign them.

That's an interpretation, not what Article 1, Section 7 actually says. Remember Justice Black's warning: "One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning." That is just as true for structural provisions as for rights-bearing provisions. Section seven does not say that Congress "ha[s] to vote up and down on these bills" (it says that a bill can't become law unless it has "passed" both chambers), and even if it did, it is far from clear that voting on a rule that explicitly declares that a given bill has passed, rather than voting on the bill itself, is not an up-or-down vote.

And: People keep emailing me to say "yeah, but what about Clinton v. City of New York?" Well, yeah—what about it? That case underscores what we already know from Art. 1 (i.e. the normal legislative process: both houses must pass the same text before presentment), but that isn't the issue here. The issue here is how they may pass it. Clinton doesn't speak to that.

Post facto:
More silliness on Slaughter (3/16/10)
Suing the feds in a 1983 suit? (3/18/10)
Just to be clear (3/19/10)
McConnell on Slaughter (3/19/2010)
Deem and pass deemed to risky (3/20/2010)
Deem and pass: a slight return (1/6/2011)