March 21, 2010 – 11:09 pm
Health care “reform” has passed, after Bart Stupak and company sold out for a fig leaf. I suppose that there is nothing left to write about health care policy for the time being, other than (a) it’s time to work on killing reconciliation in the Senate, and (b) this health care reform bill had better work, otherwise we are all in trouble.
I’ll add this as well on the political side: If the Republicans are able to win control of Congress this year, there ought to be no pretense of bipartisanship whatsoever in the next Congress. Democrats ran roughshod over Republicans in order to achieve tonight’s results. The favor ought to be returned.
As has now been reported, Bart Stupak has decided to vote for the health care reform legislation before the House in return for an Executive Order that prevents public funds from being spent on abortion.
Except that the Executive Order only appears to affirm a particular reading of the health care reform bill, and the continued applicability of the Hyde Amendment. It does not forbid public funds from being spent on abortion. The most it does is “direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on [community health centers] by existing law.” But since the law can change eventually, and since Executive Orders can be superseded by subsequent Executive Orders, this is pretty meaningless.
The text of the Executive Order is below. Read for yourself:
March 21, 2010 – 11:46 am
Having decided to drop the unconstitutional “deem and pass” method, House Democrats appear to be signaling that at the very least, they think they have the necessary 216 votes to pass health care reform. I suppose that it is possible that the House Democratic leadership is still not sure about its vote count, and thinks that “deem and pass” would have hurt the vote count, so it decided to drop it. But if this were the case, I would have to believe that the leadership would have figured it out sooner, and either dropped “deem and pass” immediately after offering up the tactic as a trial balloon, or that the leadership would not have floated the trial balloon in the first place.
As I write this, I would be more surprised to see the bill fail than I would to see it pass.
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).
By Pejman Yousefzadeh
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Posted in Chequer-Board
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Also tagged Barack Obama, Congress, Constitutional Law, Deem And Pass, Democrats, health care, Health Care Policy, Health Care Reform, Michael McConnell, Nancy Pelosi, Obama Administration, Supreme Court
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Look how poorly Barbara Boxer polls against all of the Republican candidates seeking their party’s nomination for the U.S. Senate seat Boxer currently holds. She is barely beating Carly Fiorina and Chuck DeVore, and getting beaten by Tom Campbell. In each case, she is polling under 50%. Well under 50%.
For an incumbent, that’s horrible. For Republicans, that’s a reason to lick chops. It remains possible, of course, for Boxer to win at the end–California is a heavily Democratic state, after all–but the odds against her winning are looking longer and longer.
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.
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?
By Pejman Yousefzadeh
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Posted in Chequer-Board
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Also tagged Barack Obama, Congress, Constitutional Law, Deem And Pass, Democrats, health care, Health Care Policy, Health Care Reform, Nancy Pelosi, Obama Administration, Supreme Court
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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.”
By Pejman Yousefzadeh
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Posted in Chequer-Board
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Also tagged Barack Obama, Congress, Deem And Pass, Democrats, health care, Health Care Policy, Health Care Reform, House of Representatives, Nancy Pelosi, Obama Administration, Politics, Self-Executing Rule, Senate
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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:
By Pejman Yousefzadeh
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Posted in Chequer-Board
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Also tagged Barack Obama, Congress, Democrats, health care, Health Care Policy, Health Care Reform, James Joyner, Megan McArdle, Obama Administration, Politics, Reconciliation
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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.”
Well, I’ve seen better.
The current poll standings are bad enough, but Patrick Caddell and Doug Schoen point out how much more unpopular the President and Democrats can become:
In “The March of Folly,” Barbara Tuchman asked, “Why do holders of high office so often act contrary to the way reason points and enlightened self-interest suggests?” Her assessment of self-deception — “acting according to wish while not allowing oneself to be deflected by the facts” — captures the conditions that are gripping President Obama and the Democratic Party leadership as they renew their efforts to enact health-care reform.
Their blind persistence in the face of reality threatens to turn this political march of folly into an electoral rout in November. In the wake of the stinging loss in Massachusetts, there was a moment when the president and the Democratic leadership seemed to realize the reality of the health-care situation. Yet like some seductive siren of Greek mythology, the lure of health-care reform has arisen again.
March 11, 2010 – 12:10 am
The Senate Democrats won’t allow your anti-abortion language through on reconciliation if the House passes the Senate’s health care reform bill.
Something to consider as you decide whether to give your vote, and the votes of the House members in your coalition to the House Democratic leadership when the Senate’s health care reform bill comes up for a vote in the House.
