Michael McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit and currently a law professor at Stanford University wrote an op-ed piece in the Wall Street Journal in which he argues that the Slaughter Rule by which Democrats want to “deem” the Senate bill passed without actually voting on it, is unconstitutional.
In just a few days the House of Representatives is expected to act on two different pieces of legislation: 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. 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.
This enables the House to enact the Senate bill while appearing only to approve changes to it. 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. 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.
He argues that defenders of the Slaughter Rule who argue that “self-executing rules” have been used before fail to note a crucial difference this time around:
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. 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.
The Slaughter Rule was not meant to be used this way, but, as Allahpundit at Hot Air explains, a Senate parliamentary ruling has complicated the situation:
This goes back to that bombshell parliamentarian ruling insisting that Obama has to sign something before the Senate can start on reconciliation. The whole point of the Slaughter strategy originally, as I understood it, was to make it impossible for Obama to sign the Senate bill into law until Reid passed a fix matching the House’s. Instead of voting separately on Bill A (Reid’s Senate bill) and Bill B (a reconciliation fix), the House would integrate them into Bill AB — which Obama couldn’t sign until Reid passed B, too. That’s how Pelosi was going to assure wavering Dems that the Senate would keep its promise to pass something. If they didn’t, O-Care would be dead. In other words, the point was never to split Bill AB back into separate bills after it passed (I think) but, on the contrary, to keep it intact. The parliamentarian destroyed that possibility, and yet, bizarrely, despite the potentially catastrophic constitutional flaw, they’re … still going to use the Slaughter strategy. The idea, I guess, is that there’s some political benefit to letting House Dems claim that they technically never voted for Bill A, Reid’s bill, only the new and improved Bill AB. But if reconciliation collapses in the Senate, all they’ll be left with is Bill A and a killer GOP talking point that the new health-care law of the land was, by the Democrats’ own admission, never technically voted into law.
It is uncertain whether the Supreme Court would strike down the health care legislation if it passed this way. There is limited precedence and some of it appear contradictory. McConnell concludes:
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. 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.
The “powerful motive” is that not enough House Democrats are willing to commit political suicide by a straight vote on the Senate bill. They believe that the American people are not smart enough to see through their political trick. Thanks to the abundance of new media and the grassroots Tea Party movement, it is hard to see how House Democrats can still believe their deception will work.
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