March 20, 2010

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?
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.
The actual constitutional text is: "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."
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. 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.
McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:
As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....
McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....
... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....
What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:
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.
Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

94 comments:

Florida said...

Ann,

Isn't there another problem with this approach (the House voting on the Senate bill language):

All appropriations bills must originate in the House.

The Senate bill is not originating in the House and is an appropriation bill (it raises taxes and spends money).

That's unconstitutional.

Shanna said...

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way?

Exactly. There is no reason to do it this way, if you can do it the normal way. If you have to create a new rule that just sounds wrong on its face ("deem and pass") that is a bad sign.

rhhardin said...

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.

My theory is that that's "rive" plus spellcheck.

So the bill would be riven rather than hiven, once it's done.

mvl said...

"Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way?"

Have you taken a look at the Democrats and their parasites recently?

Waxman, Frank, Pelosi, Reid, Obama, Ayers...very weird people, deranged perhaps and not in touch with reality.

Obama had someone high in his admin that actually praised Chairman Mao.

Praised Mao.

Let that sink in, and then take a look at whether or not they are doing things as they want, or can only do...

NewHam said...

"If you have to create a new rule that just sounds wrong on its face ("deem and pass") that is a bad sign."

On the contrary, that is a good sign: It means that Nancy Pelosi cannot garner the votes she needs to legitimately pass the Senate bill.

So, she is resorting to a coup d' etat and will "deem" that bill passed. That is treason and the death penalty applies.

Now, we have legitimate cause to hang that fucking cunt if she tries this shit. Before, we didn't have a cause to hang her. Now, we do.

RHSwan said...

Florida,
The Senate bill is an amendment to the House bill(replaces the whole thing) so that is constitutional.

garage mahal said...

Let's send the 100+ deem and pass bill Republicans passed to the Supreme Court then. This is fun!

Old Dad said...

The House Dems are mistaken if they think that this silly ruse will provide them any political cover.

There was a day when voters would look, albeit disgustedly, away when our elected officials attempted cover their asses with blatant dishonesty. That's what we expected from the horrible dopes that we elected. We, foolishly, let them play silly games so long as we had jobs and positive GDP.

When the disatrous fallout from this horrible legislation starts raining down--docs leaving the profession in droves, docs turning away Medicare patients, rising premiums, hideous deficits, etc.--there will be no place left to hide.

rhhardin said...

You want the House vote on the Senate bill alone so that it is not influenced by the contents of the other bill which does not become law.

Both houses have to agree on the precise bill.

If not, it's not law.

It's not so much accountability as agreement.

If there's no moment of agreement, there's no law.

Doug Wright-OldGrouchy said...

Another comment I've heard Dems making is that "they" are going to bind the Senate Bill and the House Fixes (Reconciliation) Bill together so that neither becomes law without the other. Supposedly, this is to assure wavering Dems that the "Demon Pass" procedure would not permit reconciliation to be ignored by the Senate.

However, for the bills to be joined together would require a change in the Senate Bill language. No idea how Pelosi will try to slither past that barrier but she'll try.

Nov. 2nd is the time for all humankind to come together.

edutcher said...

This is a foot in the door. Next immigration, according to Hoyer, and then single payer a little later, according to The Zero - and all on Demon Pass. Eventually, they can make the case that a legislature is unneeded since, once the President says he wants something, the Politburo can deem that it passed. Unconstitutional, you say? We're not only post-modern, we're post-constitutional.

When I was a kid, I heard the warning, "The United States will never be overcome by a foreign invader. It will be brought down from within." Now, it appears it's here. This is what eight generations of Americans have fought against.

The only thing that will foul this up is that they're trying it during a very bad economy and the taxes involved will make it much worse. Those rosy scenarios put out by the CBO assume GDP will remain the same. Anybody think all those taxes will spur economic growth?

NewHam said...

"Let's send the 100+ deem and pass bill Republicans passed to the Supreme Court then."

Garage what is stopping you from doing exactly that?

"Deem and Pass" is unconstitutional and represents a coup d' etat. The fact that it has been done before does not make it any less unconstitutional or any less wrong.

Nothing whatsoever prevents the Democrat Party from suing in federal court to undo any other "deem and pass" bills they don't agree with. Those were also unconstitutional.

I encourage Democrats to do precisely that.

"Deem and Pass" is unconstitutional. Of course, if nobody ever sues, the court doesn't get a chance to make that official (my, isn't that convenient).

So, please, file your fucking lawsuits to have the court strike down all 100 of those laws the Republicans passed unconstitutionally. We on this side of the aisle want you to do that.

We're going to file our lawsuits ... make no mistake about it.

May the best man win.

Fred4Pres said...

Knock Knock

Who's There.

The American Experiment

The American Experiment who?

The American Experiment may not be over. Yet.

Peter V. Bella said...

garage,
Your bitterness is affecting your normally intelligent sharp wit. Tis a shame you must bitterly cling to your ideology. Just do not let go of the guns!

Fred4Pres said...

Ann, do you teach con law? This could be a decent law school exam question.

Just trying to make lemonade from lemons. Identify all the unconstitutional provisions.

NewHam said...

"Let's send the 100+ deem and pass bill Republicans passed to the Supreme Court then."

Not only are we going to file lawsuits, as soon as we have the political power to do it, we're going to investigate Nancy Pelosi and try her for treason (if she attempts her little coup d' etat tomorrow).

Nancy Pelosi will not sleep another night without first tallying up what she's spending on lawyers. That much, you can be assured of.

We intend to hang that fucking cunt for treason.

It's not going to stop in the courts, dude. Not by a long shot.

You think civility is dead now, you just wait until November.

Hagar said...

"Mr. Marshall has made his decision; now let him enforce it!"

The Supreme Court may well refuse to interfere with the mess Congress has made of its internal affairs in enacting this statute, but I predict that, if it passes, there will be an unending series of cases arising from the unprecise and dubious language used regarding affirmative action preferences, etc., to be decided.
This will go on for decades as the various programs kick in and the soft spots are discovered.

Ann Althouse said...

"Ann, do you teach con law?"

Yes, but I wouldn't ask such a predictable question, especially one where students would feel like politics would be a factor in how there exams were evaluated. I would be embarrassed to read attempts to get on the right political side or anything like that.

Dust Bunny Queen said...

This procedure....deem and pass....completely circumvents the intention and fundamental structure of our Representative form of government.

If our Representatives are allowed to dodge voting on unpopular bills and in fact don't even read the bills that they are not voting on: How can they be possibly representing their constituents or doing their duties.

By not voting and allowing laws to be slid in under the door by powerful lobbying interests and strong armed by political factions, we the people have lost all voice in our own government.

When the our Representatives sell their votes for choice positions for family members or for personal venal reasons against the will of the voters, the level of corruption and oppression has reached the level of third world dictatorships.

When the lawmakers can just ignore the people and abrogate their principles and their DUTY to vote the will of their constituents, we might as well be living in a dictatorship.

Welcome to the New America where we are ruled by petty tyrants and we have no say so in our own country.

Is this what our ancestors fought and died for? Is this what our ancestors fled from, in other countries, only to see this corruption and abuse of position and power that has crept up upon us? They must be rolling over in their graves.

NewHam said...

"The American Experiment may not be over. Yet."

It's not over whatever happens in the House tomorrow, Fred. The war begins tomorrow ... it doesn't end tomorrow.

First ... Democrats in the Senate will have to attempt to pass some bills through a reconciliation process.

That is not going to occur. The Senate Parliamentarian is not going to allow it and they will not have the votes to overcome a filibuster, or the balls to deploy the nuclear option (changing Senate rules).

The reason they won't deploy the nuclear option is that they can see what's going to occur in November, and they don't want to give Republicans such a potent weapon as elimination of the filibuster. (Remember: A Republican now warms Teddy Kennedy's Senate seat! That's how bad it's going to be for Democrats on November 4.)

Democrats are wrapping the noose around their necks and tightening it for us.

I'm giddy about it, frankly.

I can't wait until Nancy Pelosi attempts her coup d' etat.

We can then legally hang her at that point and won't that be a great day for America when that fucking cunt is dangling at the end of a rope like Saddam Hussein.

It's going to be morning in America again.

NewHam said...

"Is this what our ancestors fought and died for? Is this what our ancestors fled from, in other countries, only to see this corruption and abuse of position and power that has crept up upon us? They must be rolling over in their graves."

I ask you DBQ ... what are you prepared to do?

And then what are you prepared to do?

We can sit idly by, or not.

It's our choice.

I say: Storm the House. Take it back. It's the people's House. We either claim it for ourselves or by default lose it to them.

rhhardin said...

The Democrats should vote "present" in honor of Obama.

JAL said...

Rule(s) of thimb:

If you have to turn yourself or it into a pretzel to pass a law, it's the wrong law.

When you vote on a bill if you have to become a Talmudic scholar and split every pinhead to make sure you get all the angels (heh -- how's that for a mixed metaphor?) don't.

The Constitution says vote yes or no.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Simple.

Promoting the the general Welfare -- WHICH the elected are not to create out of whole cloth or ideology -- does not and should not come by destroying the Blessings of Liberty.

THEY work for us. WE call the shots.

Remember?

If they don't, they will.

Jason (the commenter) said...

All these innovations used to pass bills and show that they are financially sustainable, seem a lot like the sort of things banks were doing during the bubble economy. This Congress definitely is a product of those days.

I think the most wonderfully/horrible thing that could happen would be for the House to pass its health care bill, the Senate to do nothing, and the President to sign the old Senate bill into law.

AllenS said...

They'll do anything that they want. They could care less what it looks like. I'm reminded of when Al Franken challenged the vote count with Norm Coleman. Once he did that, there was no way that Franken was going to lose. Votes were going to come from somewhere, and no matter what it looked like, they was no stopping the final outcome.

JAL said...

Out the door to our local demonstration in the city plaza, since a bunch of us did not get on the bus last night.

We the People, deranged wild eyed middle class Americans, are off to the streets again!

John Lynch said...

To me, this looks like an attempt to turn the Congress into a parliamentary system where the Speaker becomes a kind of executive. It looks like Pelosi is trying to set up a cabinet within the House made up of the House leadership. She's even amending a Senate bill without sending it back to the Senate. That's really strange.

That's not traditional, nor do I believe it is Constitutional. We already have an executive. It's the President.

This is a Congressional power grab, beyond what the health care bill entails.

William said...

The procedures of a democracy are more important than its policies. Some policies in the fulless of time will be shown to be mistaken. That's the way it goes. But if the procedures taken to enact those policies are considered to be corrupt, then the damage is no longer peripheral but essential. If we cannot agree on how to disagree we are screwed. This bill and the way it is being passed will raise cynicism to a level not seen since the fall of Byzantium......This bill will cover 30 million Americans. Of those only about 10%will actually have any need to use it--and a a further half of those could probably find other coping mechanisms. For a few hundred thousand people, the Democrats propose to radically alter not just the way health care is administered but the way laws are enacted.

NewHam said...

@Garage:

Democrats filed a lawsuit in Federal Court over Republican "deem and pass" legislation:

"In 2006, Democratic leaders, including then-Minority Leader Nancy Pelosi, signed onto a lawsuit that Ralph Nader's group Public Citizen filed against Republicans, who were in control of Congress at the time, for using the maneuver known as "deem and pass" to finalize a deficit-reduction bill. A clerical error had been found in the House version of the bill, so Congress deemed the correct version passed without a further vote.

The other Democrats who challenged the move were Reps. Henry Waxman, D-Calif., and Louise Slaughter, D-N.Y., who is now chairman of the House Rules Committee and came up with the idea to use "deem and pass" for the health care bill.

In that case, because only typographical errors were at stake, a judge ruled the case in favor of Republicans.

I believe that was an error, but Democrats refused to take the case to the Supreme Court ... where I believe the Supreme Court would have struck down "deem and pass."

Democrats including Nancy Pelosi and Louise "Traitor" Slaughter argued in federal court that "deem and pass" was unconstitutional.

That was then, of course ... and now that they are drunk on their own power, they're employing the exact same unconstitutional strategy.

So fuck off, Garage.

garage mahal said...

So, please, file your fucking lawsuits to have the court strike down all 100 of those laws the Republicans passed unconstitutionally. We on this side of the aisle want you to do that.


it says a lot that you would trade 100+ Republican passed laws for just this one. I would be afraid too, no Republican can ever run against it. But, I'm afraid you're just going to have to eat it. You can kick and scream all you want, but obviously Pelosi has the votes. I think Kucinich was the 216th. About the only thing left to do for Pelosi is to get a few more to pad the total. Funny watching Republicans have turning into trial lawyers overnight though.

Zach said...

As a followup on the "Would you use this problem on an exam" question: Would this even be an interesting question on a law exam if you had thought it up six months ago?

I imagine the first response of anybody reading such a question would be to open up the Constitution, find Article 1, section 7, and basically copy that down verbatim. That's what McConnell does, and it's unanswerable. The only answer I've even seen tries to cut him off at the pass -- to argue that the Supreme Court isn't allowed to take notice of the fact that no vote was actually taken, or that one vote would be used for two bills, or what have you.

So here's my question: if it weren't for the huge stakes, would this question even have enough controversy to be interesting?

NewHam said...

"it says a lot that you would trade 100+ Republican passed laws for just this one."

They're not "Republican laws" asshole.

They're unconstitutional laws. And those on this side of the aisle do not care whether they were passed by Republicans or Democrats.

They're unconstitutional. And we want them declared so.

We encourage you to file lawsuits challenging the validity of any law you don't like. That's why we have a federal court system and that's why we have a Supreme Court.

"Deem and pass" is a usurpation of our Constitution.

I'm sorry that your side refused to fight for this principal, but you can always change sides.

Our side will see you're fucking asses in court. And if necessary, on a battlefield.

Shanna said...

"Let's send the 100+ deem and pass bill Republicans passed to the Supreme Court then."

According to the WashPo,
"Wolfensberger said self-executing rules often have been employed at an earlier stage, rather than for final passage of a bill. He said he knows of four instances when a measure that was deemed to have been passed went directly to the White House. The first, in 1933 during the Great Depression, involved Senate amendments to legislation pertaining to the United States' creditworthiness. The tactic was employed twice in the 1990s, by Democrats on a bill involving the Family Medical Leave Act, and by Republicans on a measure involving a line-item veto. Most recently, it was used a few weeks ago, when the House voted on both an increase in the debt ceiling and a pay-as-you-go budget provision. "

So, aside from 1933, this rule has been used in this manner ONE time by Republicans, and if it's the time sited above, it was for a clerical error. Stop making things up to make your point. Everybody knows why this is being used on THIS bill, and it's because Pelosi is having trouble getting the votes and if she got them the Senate might not have them.

NewHam said...

"But, I'm afraid you're just going to have to eat it."

No, we don't have to eat it and you're going to find out about that shortly.

We can always declare war on you and fight it out instead. Our side is prepared for this and remains very well armed and has the Constitution on our side.

How's your side? Still congregating in gun-free zones on campus are you?

Guess you're going to be the ones eating it.

garage mahal said...

Our side will see you're fucking asses in court. And if necessary, on a battlefield.

Yea ok NewHam.

CatherineM said...

Garage and other "Republicans did it too," folks. I don't like that either. I didn't know this was done at all until this situation. Most people did not know this was how some business was being done.

Now that we know, we don't like it. Period. Republican or Democrat.

Same goes for the reckless spending. It took the bank bailouts and the stimulous to wake up a lot of people to say, "wait a minute, wait a minute! Enough!"
It does not mean they condoned it when Republicans were in charge.

ricpic said...

On a more elementary level, a "deem" is neither a yea or a nay. Isn't part of the article 7 language that the members have to declare themselves by voting yea or nay?

damikesc said...

I'm not convinced SCOTUS will even get involved. I suspect they will defer to the House since it is not a clear cut violation. I think launching a huge entitlement in such a manner is abhorrent...but I doubt the SCOTUS wants to get involved.

kimsch said...

Here's my question, if demon pass is acceptable as a "rule" of the House, what's to stop either chamber from dispensing with votes altogether and just Nancy and Harry (and maybe a few of their lieutenants) deciding what the "votes" will be all by themselves?

Congresscritters and Senators, we don't need no Congresscritters and Senators.

WV: apinditt - we want to add something we'll just apinditt.

edutcher said...

NewHam said...

Not only are we going to file lawsuits, as soon as we have the political power to do it, we're going to investigate Nancy Pelosi and try her for treason

Treason is only for aid and comfort in time of war. We should try people like Patty Murray and the Dick from Illinois for treason. This is more malfeasance in office.

garage mahal said...

...

You can kick and scream all you want, but obviously Pelosi has the votes. I think Kucinich was the 216th. About the only thing left to do for Pelosi is to get a few more to pad the total.

Did they teach you all about FUD at Kos, or was it Puffington?

If she had the votes, we'd have seen it done already, but, even if you are right, there won't be a big enough total to make this look any better than it is. This is a direct assault on the constitutional system and, funny, I don't see you even trying to rebut that. The old Alinsky dodge about making them live up to their own rules doesn't fly here. Self-executing rules were used by the Republicans on a few amendments, not major legislation.

ark said...

Response to Florida: I don't remember the details, but I do remember that the Senate anticipated your objection. Technically speaking, the Senate health bill did not originate in the senate; it is a modification of a House bill on an unrelated matter. The Senate simply took this House bill and replaced its entire text by the Senate health-care bill.

So technically, the Senate bill did originate in the house. It's just that not a single word of the original bill remains.

eve said...

Garage: The bill in question has full bipartisan opposition. If it passes then it will pass by a bare majority of the party in power which can barely muster support from its own members. The bare majority will not have the spine to vote the
Senate bill up or down. What a triumph.

NewHam said...

"... but I doubt the SCOTUS wants to get involved."

If the courts don't want to settle a disagreement between the people and the government, then I for one got no use for either.

The courts will get involved, or this will get settled on a battlefield.

The court is a civilized way of resolving questions of this sort. If it refuses to do its duty, there will be blood.

There will be blood.

NewHam said...

It's just that not a single word of the original bill remains.

This is precisely the sort of legedermain that the Supreme Court needs to slap right the fuck down.

I agree with you that the Senate anticipated this problem. The way they dealt with it was to merely trick its way around the Constitution.

We either have a Constitution that means something, or we don't.

You're right ... not a single word of the House bill remains.

This bill originated in the Senate and no sleight-of-hand trickery changes that.

It's unconstitutional or the Constitution has no meaning and its every man for himself.

ark said...

If the House is trying to argue that passing two bills at once in the form a rule has the same normative effect as passing both of those bills individually, that leaves open the question of why they're bothering.

Here's my theory: I believe that the House rules require a roll-call vote on a bill if 20% of the members insist on it. What I am wondering is whether roll-call votes are required on rules. Because if they're not, then the Slaughter rule is a way of voting on Obamacare by secret ballot, which would allow individual Representatives to claim that they didn't vote for the bill without anyone being able to gainsay them.

cf said...

Ann, brilliantly done. Byron York in the Washington Examiner today reveals the chaos in the Rules Committee meeting and it is so clear this is a patent subterfuge, I'd cite the transcript of the meeting to prove the point,

ark said...

To lyssalovelyredhead: If you think that going 3 miles per hour over the speed limit is de minimus, I guess you've never driven in Ohio :-)

lyssalovelyredhead said...

For you non-law types, the case that NewHam pointed to, where they used deem and pass to fix a clerical error, is what's known as "de minimus." I kicked a case out on summary judgment for something similar last week.

It basically means that, while it might technically be wrong, it's like going 3 miles over the speed limit- it'd be stupid to make a big deal over it.

Fixing a clerical error is de minimus. This bill is ANYTHING but.
-Lyssa

NewHam said...

"... self-executing rules were used by the Republicans on a few amendments, not major legislation."

And we're happy to have those ruled unconstitutional as well. So file your lawsuits, dude. That's why we have a Supreme Court - but they won't rule on your case if you never file a case.

Any law passed by this method - past or present - is unconstitutional and I encourage any party with standing to sue for redress and if you don't get it, to seek redress by any means necessary.

We're damn well gonna. And we're going do it before the ink dries on this piece of shit legislation.

Finally, Nancy Pelosi had better keep her eye in the rear view mirror because we're coming for her ass if she attempts to execute this coup d' etat.

Mark those words.

Carol_Herman said...

Given that #5 comes before #7. And, Boehner has requested a vocal and recorded count, I think he's put into play that the Supreme's get to read the US Constitution. If they decide "deemed" isn't good enough; but they think the votes are there. Then all you need to do is send it to the House for another count. Would that oblivious the bamster's signature? Well, again. The Supreme's can show that there are 3 equal divisions to government. And, for one of them, (the executive) to sign something into law, it first has to meet the requirement set out in Article #5.

It would also be a good time to reiterate that the Constitution protects minority rights. You need a definition of the word 'minority,' here?

The only mistake I see, so far, is that pelosi was sure the topic disappears as soon as the president signs this. Me, on the otherhand, actually believes that among other people raking in millions, will be Dick Morris, peppering this country with ads. And, here the DNC will not be able to keep up.

I also think non-compliance becomes a huge issue. (Just like it did during vietnam.) Millions of men, back then, went into non-compliant mode. And, our music got better. Western civ and the ROTC got tossed from academia. Some holes never do get repaired.

ark said...

To cf: I think that Byron York is making a mistake here, in the sense that the house can easily sidestep the problem of whether the HCR bill is or isn't law.

The way to do that is to consolidate two bills into a single vote: The Senate bill and the Senate bill plus the House amendments. Then the current law that is being amended is the status quo ante, and the ultimate effect is the same regardless of whether the amendments are passed before or after the president's signature.

I think the real problem is in something that everyone until now seems to have missed: The Senate parliamentatian has already ruled that the Senate cannot take up a reconciliation bill until after the president has signed the bill that the reconciliation bill is amending.

In other words, the Senate has already decided that before the Senate will discuss the House amendments, the president must first sign the Senate bill into law (after passage by the house).

At that point, the Senate has no incentive to pass the amendments at all! After all, the Senate has already gotten exactly what it wanted in the first place. What to they have to gain by amending it?

So the real problem that Pelosi faces is how to convince the Representatives that the Senate bill won't be signed into law, even though the Senate has already said that they're insisting on doing exactly that.

garage mahal said...


There will be blood


No there won't. The bill will pass, and people will see pretty much none of the hysterical bullshit from Republicans that's dominated the entire debate for a year will come to light. Are Republicans going to run against provisions in the bill? Re-opening of the donut hole for seniors? Bringing back rescission and pre-existing condition discrimination?

Der Hahn said...

...and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

This is the nut of the problem. It's been clear for weeks that the Senate bill was Dead On Arrival (as they used say back in the day) and would never pass an up or down vote in the House unchanged, just as the original House HCR bill was unpassable in the Senate. It was also unlikely to pass the House without more assurances than could be reasonably given by the Senate (especially after Scott Brown was elected but even before then) that a modified bill would pass there without additional changes.

'Deem-and-pass' is an attempt by Pelosi to have her cake and eat it too. Pass the Senate bill, but not in a way that seems to create an obligation (the 'shall ... be presented to the President' language in Art I Sect 7) to present it for signature into law. I think this is a far more reasonable reading of the House Democrats' actions than the dubious claim that it provides cover for Reps to say they didn't actually vote for the Senate bill.

Reconcilliation in the Senate (the side car, or what the House is going to make a theatre of voting on) is never going to happen. Reid will put up a front of trying to get it through but, if the HCR bill passes the House, in a couple of weeks Pelosi and Reid will enroll HR3950 and send it to Obama to be signed. And then the political sh** is really going to hit the Constitutional fan.

Roger J. said...

I have no idea what "the law" is. And I am in agreement with those say SCOTUS will not take up what is inherently a political argument.

Let the dems go on and pass this--if the American people dont care then they deserve what they get. I honestly dont give a damn--the rubes will pay for this and eventually go broke with substandard care--no loss.

This issue can, and I think will, form the centerpiece of the November campaign. (This assumes the republican leadership could find their asses with both hands in the dark and do something with it--a questionable assumption).


I think it will come down to the sorry bastards who are elected reps assessing their own relectability and voting what they think is their own political survival.

In Memphis where I vote--Steve Cohen,our liberal democrat, is dead meat on my vote--I would rather vote for our resident racemonger Willie Herenton and throw Cohen out of office for his support of this abomination of legislation. Having King Willie in office would be quite fun--a combination of Sheila Jackson Lee and Maxine Waters--except less restrained.

sunsong said...
This comment has been removed by the author.
Carol_Herman said...

Doesn't Marbury set up a "plague on both your houses," rule? Didn't that decision give the Supreme-o's the lantern light do be the final arbiters of what's in the Constitution, and what's not?

Anyway, there are TWO bills here, with one about to be signed by the president, IF the House passes the Senate's bill. That would be something for the supreme's to decide. Was the house vote legitimate? And, if it was, then the bill could be signed as a "stand alone," which would terrify members of the house. Who are spooked, already.

A nice sized crowd is forming in DC, too. And, they're not there to give pelosi's team a boost.

There's another question on the table, which can't be resolved without the house fixes going to the senate. Since it's supposedly another bill. A stand-alone at that.

Counting all the votes is another matter. Because "deem and pass" just means nothing in the Constitution can't be overridden.

One of the jobs the supreme's has, (if the law is to be believed), is to put into alignment, the stuff that falls out when politicians forget the People.

I don't think "deem and pass" is a winning tactic. It is, however, a long shot. And, it's just a matter if you can push a dead horse over the line and claim that it's won the race. Now, why not consider this horse a Trojan?

Kids today, graduating from law schools, are discovering they aren't being hired at jobs that pay off their student loans. Do you need another example of boondoggle?

the_raptor said...

Ann,

First, what possible reason is there to use "deem and pass" except to avoid the accountability demanded by the Constitution? It's not as if the House couldn't vote on the Senate bill using normal procedure...except they don't want to be held accountable.

Second, if they can just "deem" a trillion dollar spending bill passed, what's to stop them from using this rule for all kinds of mischief in the future? Got a controversial bill? Don't vote on it! Sneak a "demon pass" into the Rules Committee, so that when you name that new post office in East Podunk, you just "deemed" your controversial bill was passed as well. They can't watch everything the way they are watching health care, can they?

Where does it stop?

Conor said...

I was so discouraged but after the comments, I am energized.

The Dems are famous for lawsuits on everything. Elections, etc.

Wait until the explosion on this mess of a bill. Lawsuits for decades.

Lawyers are the big winners.

ursabear5000 said...

The Constitution is more than words, its a binding pack between We, the People" and the government. The Congress--in this case-- is abusing that faith and trust. We, the Pepole, have a word for such abuse- tyranny.

IF the government wants a revolution this is good starting place.

Michael said...

"Let's send the 100+ deem and pass bill Republicans passed to the Supreme Court then. This is fun!"

The very fact that there are 100+ of them indicates that most were trivial, procedural in the true sense of the word. (Name one off the top of your head.)

Can you say that about this?

orbicularioculi said...

We are seeing the beginning of what could become a violent confrontation of the American People against Socialist Communists who are DESTROYING out Constitution.

The Socialist Democrat Party and its Liberal Socialist Progressive Marxist Communist Agenda has to be stopped. Peacefully at the Polls or not-so-peacefully by any means necessary.

The Declaration of Independence authorizes the American People to rise up against Tyrants and these EVIL people in the Democrat Party and Obama and his Administration are indeed EVIL. Politics be damned. They have to be removed.

garage mahal said...

The very fact that there are 100+ of them indicates that most were trivial, procedural in the true sense of the word. (Name one off the top of your head.)

You mean Democrats didn't have a grand mal seizure for a full year? Or that the media doesn't care what Republicans passed. The CBO said in 2001 that the Bush tax cuts would add a trillion dollars to the deficit. And the media yawned. But if the CBO says this bill will save billions, then it's time to cover each and every idiot with a bullhorn as they throw an epic tantrum. The media didn't even attempt to report what was in the bill, just the concerns of Republicans and teabaggers.

Roger J. said...

Garage--I respect your commentary but when you resort to the teabagger thing, that is beneath you. I know you are are better than that--Just my .02. I know rhetoric gets heated up but honestly i think you and I both know the repubic is really not at risk.

garage mahal said...

Roger
Ok, for you, I retract it.

eve said...

Garage: OK, I call. Show the link to the 2001 CBO "trillion dollar" deficit estimate. I want the link to the CBO stats not to some lame lefty site.

Roger J. said...

Garage--see if I ever send you Memphis ribs again--you were lucky this time--next time by god I will get your damn cheddar :)

Take care, Gene, and be safe.

Roger J. said...

Garage--will check my profile and get it on there, but its rjarango@gmail.com

hope things are going well for you and you are surviving a Wisconsin winter--its actually starting to get decent in Memphis--although the predictions are for a late snow/ice event. We don't do well when the temps drop below 40

Best to you and your loved ones.

Roger

somefeller said...

NewHam says: Our side will see you're fucking asses in court. And if necessary, on a battlefield.

And an internet tough guy appears. Always a necessary part of any online political discussion.

Doug Wright-OldGrouchy said...

Civility, civility, civility! Or, what?

NewHam, kinda like your politics, maybeso, but tone reflects much, or could!

garage mahal said...

Roger
thanks much. The wife still talks about those ribs you sent by the way, and really I couldn't even get her to eat them prior to ones you sent. She also wanted to say good luck with your prostrate. Will send you an email when I get back.

Roger J. said...

Play your cards right, Gene, and I might just send you another batch even without a side bet. :)
And these of course, would be to get your wife on board with ribs. Summer and grilling season is coming up you know. Wisonsinites cannot live by Cheddar alone.

Tim said...

The main question regarding any lawsuits over the so-called "Demon Pass" seem to center around the political question doctrine and justiciability. I think if this were a purely House parliamentary ruling that, per chance, had external effects, the Supreme Court would side step the issue with their typical justification of voters being the final arbiter on such matters. However, this deem and pass scheme posits 2 problems for the SCOTUS to employ such reasoning:

First: The obvious and stated intent of this ruling is to shield House member's from voting on the language of the Senate bill and thereby avoid any necessary political repercussions. This runs directly counter to decades of SCOTUS policy reasoning for finding certain issues non-justiciable (when they otherwise should have been). By depriving the Court of the ability to hold that the voters are the final arbiters on such matters (by making the vote essentially anonymous) the SCOTUS has no policy "out".

Second: The Court takes separation of powers arguments very seriously; and I think deem and pass presents such a problem. The Constitution requires that the bills be passed by both chambers and presented to the president for approval or veto. Besides the obvious question of what gets presented to the president: the Senate bill, the House ruling, or both; should the president decide to veto the bill it must return to the chamber wherein it originated. This bill originated in the House as a budget bill. If the House were to want to overcome the president's veto it would have to get a 2/3s approval vote...but on the original budget bill. This bill would obviously differ from the bill needing 2/3s support in the Senate. As such, even if both chambers had the support to overcome the president's veto, the 2 bills would be dissimilar and would violate the presentment clause. As such, any bill with senate changes "deemed passed" by the House is effectively killed by presidential veto. This thereby deprives the chambers the opportunity to overcome a presidential veto in contravention of the Constitution.

AllenS said...

Roger,

We also eat a lot of brats in Wisconsin. I have a pack of beer brats in the fridge.

PatCA said...

NewHam,
Simmer down. It's a little early for armed insurrection. Let the electorate in November SCOTUS have a pass at it first.

Gatewaypundit has a clip of Cavuto and Mark Levin talking about this issue that makes it a little more clear to us non-lawyers. The Congress' defense will probably be something along the lines of, well, the constitution is a living document and how could the founders have known we would elect a Messiah and not just a man?

Roger J. said...

AllenS--you know after I sent that to Garage I realized I had forgotten Brats--OK Cheddar and brats :)

To perhaps explain to the commentariat, Garage and I bet on the presidential election--Wisconsin Cheddar for Memphis Ribs--Garage won this one--but I am looking forward to 2012.

Jonathan said...

Some state attorneys general are threatening to sue if "deem and pass" is used to approve the bill in the House.

Do people feel they would have standing to do so? Are they less diluted when they represent millions of taxpayers in the aggregate?

mariner said...

garage mahal:
it says a lot that you would trade 100+ Republican passed laws for just this one.

You still don't understand the difference between people who want Constitutional government and people who just want to have their way.

We don't give a damn who passed unconstitutional legislation -- we want it gone.

You want to keep the stuff you like, and then protest what you don't like under the guise of unconstitutionality.

For us it isn't a guise -- it's a guiding principle, and it applies to our side as well.

madawaskan said...

My problem with this is the bigger political picture.

Using the supposed constitutionality or non-constitutionality as a means to undo the bill once again sets the Republicans up as the obstructionists and by extension, in the court of public opinion, the Supreme Court.

And the even bigger picture-with two wars being conducted overseas-do we want the world to assume that our form of government is in a state of crisis?

Finally, wouldn't there be a breach of the separation of powers issue?

If you have both the majority leaders of both the House and Senate-Reid and Pelosi- willing to state that the final product-the sausage is law, then it's their law.

Can the Supreme Court really interfere with how they came to make that sausage-ugly as it may be?

reader_iam said...

C-SPAN announcing breaking news ...
the House will NOT use "Deem and pass" but instead will take three votes tomorrow, including one on the actual Senate bill.

Roger J. said...

reader: one presumes Ms Pelosi is looking at political reality.

AllenS said...

Real Wisconsin men eat cheese curds. I have some of those in the fridge, also. I have to admit, I'm really low on beer.

Roger J. said...

allen--while you and I may be RVN vents, you were clearly not a cavalryman--cavalrymen are NEVER short on beer.

AllenS said...

Roger,

I have thirstier friends than you.

Skookum John said...

I share NewHam's perspective on this in theory, but agree that talk of lynch mobs and armed insurrection is premature. Pray never let us lose the means and inclination to do so when exigiencies demand it, but for now we should move the fight to the ballot box and courtroom.

I am in favor of full-on Alinskyite lawfare to harrass and punish Democratic officeholders, to bankrupt them personally and to get as many as possible prosecuted for official oppression under color of law, to file lawsuits just for the sake of jamming sticks in the spokes of the wheels of Congress, to swarm Capitol Hill with unarmed mobs and close the place down by direct action, in short, to make America as ungovernable and unruly as possible. But no guns, not just yet. Keep them at the ready, but let us exhaust non violent means of seizing our country back from these dirty commie scumbags first.

Dust Bunny Queen said...

Simmer down. It's a little early for armed insurrection. Let the electorate in November SCOTUS have a pass at it first.


Maybe.



If they don't sweep these traitors out of office in November....It isn't too early to be prepared.

JimM47 said...

Ann asks:

But if they cannot use the rule that way — as political cover — why use it at all?

I'm surprised so few people mention this, because I think there is an answer. I think members of Pelosi's caucus must be afraid that there are Representatives willing to vote for the "moderate" Senate bill, but not the more "liberal" reconciliation fix. If there are allowed to be two votes, you could thus have the Senate Bill barely pass, but then the reconciliation bill fail.

That would leave a bunch of Representatives who stuck having voted for a bill they have decried yelling vainly that they had been tricked. To avoid this, some of them might refuse to vote for the Senate Bill unless they get adequate assurance that the reconciliation bill passes too. Deem and Pass is that assurance.

As I understand it, the Senate or the President can still leave those fearful members of the House out to dry, but when another body does it to you, it is easier to explain to the folks back home how you got double-crossed.

AST said...

Balkin is an ass; both for trying sell us that baloney and for believing it himself.

Hyphenated American said...

Obamacare will be a great boost to conservatism. Which is why I welcome it.

Hyphenated American votes "yes" on Obamacare

After considerable mental pain and suffering, Hyphenated American decided that the passage of Obamacare would be in the long-term interests of America. I will applaud if the Obamacare passes - particularly if it passes through the infamous Slaughter Rule. My readers surely would want to know the reasons for my sudden turn-around - it is obvious from my blog that I am a strong opponent of socialized medicine. In all honesty I must confess that Obamacare is a wrong idea at precisely the right time. It is beyond dispute that Obamacare will be devastating to the American healthcare - but at the same time it will most likely destroy the Democratic Party for the next 50 years - and that assuming that Democrats are lucky. Back in November 2008, when conservatives predicted doom and gloom, I believed that Obama's presidency would seriously weaken the liberals - and I am proven right with each passing day.

Read the rest of the article on my blog
http://hyphenatedamericans.blogspot.com/2010/03/hyphenated-american-votes-yes-on.html

Bruce Hayden said...

To lyssalovelyredhead: If you think that going 3 miles per hour over the speed limit is de minimus, I guess you've never driven in Ohio :-)

The problem with a ticket for 3 miles over is that they cops cannot honestly testify that you were going 3 miles over beyond a reasonable doubt, or, probably even with a preponderance of the evidence standard. One big problem there is calibration. Ten, fifteen percent over, sure. But five or less percent? Not likely.

If they are giving a lot of 3 mph tickets in Ohio, then I don't think that they are facing much in effective defenses.

Lyssa does have a point though - courts rarely have patience for trivialities. And a typo is a triviality, while 2,000 pages is not.

Bruce Hayden said...

No there won't. The bill will pass, and people will see pretty much none of the hysterical bullshit from Republicans that's dominated the entire debate for a year will come to light. Are Republicans going to run against provisions in the bill? Re-opening of the donut hole for seniors? Bringing back rescission and pre-existing condition discrimination?

How about elimination of many policies, esp. high deductible policies (such as with HSAs)? Elimination of Medicare Advantage? Termination of many group plans? Paying for stuff you don't want? Forced to pay for abortions? Significantly higher premiums? Penalties for not carrying health insurance? Shortages of Doctors who quit practicing?

You can pretend all you want that these would not be the direct result of at least the Senate bill. But who is going to believe you? Jeremy and AL maybe, but anyone else here?

Bruce Hayden said...

The main question regarding any lawsuits over the so-called "Demon Pass" seem to center around the political question doctrine and justiciability. I think if this were a purely House parliamentary ruling that, per chance, had external effects, the Supreme Court would side step the issue with their typical justification of voters being the final arbiter on such matters.

Until yesterday, I had questions about the state laws being proposed that would essentially negate federal control over the health care industry on Supremacy grounds. But in order to strike down the state laws this way, the litigants are likely to be suing the states in federal court, and at that point, the states involved should be able to bring up some of this as counter claims.

Bruce Hayden said...

First, what possible reason is there to use "deem and pass" except to avoid the accountability demanded by the Constitution? It's not as if the House couldn't vote on the Senate bill using normal procedure...except they don't want to be held accountable.

The reason to combine the two is that the Senate bill has a lot of provisions that some of the House members don't want to face their constituents having voted for.

For example, Rep. Stupak and his pro-life contingent don't like that the Senate bill would arguably allow for either government funding of abortions, or force people to pay for policies that pay for abortion.

So, the idea, I think, is to have a second (reconciliation) bill that gets rid of a lot of the stuff in the Senate bill that many do not like, whether they be abortion, the Nebraska kickback, the Louisiana Purchase, etc. Then, the Reps. can vote for the combination, and take that vote back to their constituents.

Never mind that those things that would be removed from the Senate bill by reconciliation are not likely to pass the Senate. The Senate bill would be law, and those parts of the reconciliation bill toast. But what they voted for included the removal of those objectionable elements.

The problem for these Reps. is that if the Senate doesn't pass the reconciliation bill, word for word, they will be faced with the reality that they voted to enact the Senate bill, and were fools to believe that their vote to remove the objectionable portions would have any effect.

So, it was, I think, designed as political cover for passing the Senate bill. But the more that has come up about this, the less it looks like it will be effective in providing that cover.

Blue@9 said...

From a political gamesmanship standpoint, the Democrats have already lost by virtue of the fierce opposition and publicization of this issue. No Democrat who votes for the bill is going to be able to say that he didn't vote for the Senate bill, or that we wasn't complicit in this maneuver. There is no political cover, and any Democrat who claims as much this fall is going to get pilloried for speaking such nonsense.

reader_iam said...

...No Democrat who votes for the bill is going to be able to say that he didn't vote for the Senate bill, or that we wasn't complicit in this maneuver. There is no political cover...