Tag Archives: Congress

“Deem And Pass” Violates The Constitution

March 20, 2010 – 10:08 am

No other conclusion can be drawn, as former judge, and current Stanford law professor Michael McConnell points out:

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).

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Dear House Of Representatives

March 20, 2010 – 9:56 am

The Senate is not quite willing to commit to reconciliation.

Still want to pass the Senate bill?

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Bart Stupak’s Moment Of Truth

March 19, 2010 – 11:44 pm

There ought to be no doubt by now but that the health care reform bill before the House is a deficient piece of legislation. About the only thing standing between the bill and final passage is Bart Stupak and his caucus of pro-life Democrats. If they waver, a bad bill passes. And the concern is that they may waver:

Representative Bart Stupak, a Michigan Democrat who leads a group pressing for the tougher restrictions, is planning a press conference today to discuss his request for an abortion vote. His legislative director, Nick Choate, declined to comment.

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From Paul Ryan’s Mailbag

March 19, 2010 – 9:52 pm

An admission from the Congressional Budget Office: Factor in the “doc fix”, and one finds that $59 billion is added to the deficit over the next ten years.

Remind me why anyone is supposed to think that the health care reform bill before the House is the best bill that we can get.

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Scoring The Health Care Bill

March 19, 2010 – 7:51 am

Democrats are ecstatic about the score given to the health care bill by the Congressional Budget Office. One wonders why, given a close analysis of the bill and the score. Let’s turn the mike over to Jeffrey Anderson:

For a variety of reasons, this tally doesn’t remotely reflect the bill’s real ten-year costs. First, it includes 2010 as the initial year. As most people are well aware, 2010 has now been underway for some time. Therefore, the CBO would normally count 2011 as the first year of its analysis, just as it counted 2010 as the first year when analyzing the initial House health bill in the middle of 2009. But under strict instructions from Democratic leaders, and over strong objections from Republicans, the CBO dutifully scored 2010 as the first year of the latest version of Obamacare. If the clock were started in 2011, the first full year that the bill could possibly be in effect, the CBO says that the bill’s ten-year costs would be $1.2 trillion.

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Could “Deem And Pass” Be Constitutionally Challenged?

March 18, 2010 – 11:40 pm

At the very least, it appears to be worth a shot. As mentioned, unlike the case in Marshall Field, an actual Constitutional provision–Art. I, Sec. 7–is implicated. As Jonathan Adler notes, the D.C. Circuit Court of Appeals may be willing to analogize any challenge to the one that was issued in Public Citizen, thus causing it to rule the same way that it did in Public Citizen. But since the Supreme Court may well think differently, and since there is ample cause for it to think differently, a Constitutional challenge to the use of the “deem and pass” rule should very much be found to be on the table.

Of course, if we could just have a straight up-or-down vote in the House on health care reform, perhaps we could avoid any litigation altogether. But that apparently is not going to be a luxury we can enjoy, now is it?

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Tea Leaves

March 18, 2010 – 6:45 am

So, there may be no vote on the health care package this weekend because House Democrats suddenly decided that they want to wait for the CBO score? I don’t know about anyone else, but I read this as meaning that the House Democratic leadership believes–the pledges of “yes” votes from the likes of Dennis Kucinich notwithstanding–that they don’t have the votes.

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The Illogic And Injustice Of Deem And Pass

March 17, 2010 – 6:36 am

Law professor and former Tenth Circuit judge Michael McConnell puts the issue succinctly on Speaker Pelosi’s proposed “deem and pass” scheme. I don’t have a WSJ subscription, but fortunately, Michael Cannon does, and he has excerpted the pertinent analysis:

Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

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The Ultimate Cop-Out

March 16, 2010 – 6:23 am

Think you’ve seen it all when it comes to the health care reform debate? Well, think again:

After laying the groundwork for a decisive vote this week on the Senate’s health-care bill, House Speaker Nancy Pelosi suggested Monday that she might attempt to pass the measure without having members vote on it.

Instead, Pelosi (D-Calif.) would rely on a procedural sleight of hand: The House would vote on a more popular package of fixes to the Senate bill; under the House rule for that vote, passage would signify that lawmakers “deem” the health-care bill to be passed.

The tactic — known as a “self-executing rule” or a “deem and pass” — has been commonly used, although never to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Pelosi said she is considering for a late-week House vote, but she added that she prefers it because it would politically protect lawmakers who are reluctant to publicly support the measure.

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The Health Care Reform Christmas Tree

March 15, 2010 – 5:31 am

Apparently, special deals in the health care bill are just fine, so long as they affect more than one state. I won’t be surprised if after a while, even that condition becomes negotiable.

No more evidence is needed to conclude that the health care reform effort has essentially turned into a farce. Nonetheless, more such evidence will likely be forthcoming.

It’s too bad that the White House didn’t spend more time working with people like Paul Ryan on how to responsibly reform health care. Instead, it spent time demonizing him for putting out a fiscal roadmap and for trying to offer alternative ideas on health care. Just about every Republican will remember the way the White House treated Ryan and those associated with him the next time a call for “bipartisanship” comes out from 1600 Pennsylvania Avenue.

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“But Republicans Used Reconciliation Too!”

March 13, 2010 – 1:16 pm

The chief excuse used to justify the Democrats pending use of reconciliation to pass a supplemental health care bill–once the Senate’s version is presumably passed by the House–is that since Republicans used reconciliation in the past, Democrats can use it too. And specifically, since Republicans used reconciliation for things like “tax cuts for the rich!”, Democrats can use it to pass health care.

James Joyner points out that Democrats shouldn’t be allowed to get away with making this argument:

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That Stubborn Parliamentary Procedure

March 12, 2010 – 7:07 am

I am sure that at this point, the Obama Administration and Congressional Democrats would be delighted and relieved to ram health care reform through Congress. I almost don’t blame them; the process has been long and arduous, to say the least. But the rules keep getting in the way:

Republicans said they won a parliamentary victory as they try to fight Democrats’ efforts to pass legislation to overhaul the U.S. health-care system.

Republicans said President Barack Obama has to sign a Senate health-care bill into law before the House and Senate can approve changes to it under a process called reconciliation. The Senate parliamentarian told Republicans that a reconciliation bill has to “make changes in law,” said Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell.

“This would be another headwind for Democrats in the House” who oppose provisions in the Senate bill, said John Sullivan, a health-care analyst at Boston-based Leerink Swann & Co. “Their biggest fear has been that they vote for the Senate version and they never get the relief they’re looking for.”

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- March 20, 2010 -

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