The Slaughter proposal is a bad idea, as it would offer a pretty thin veil of political cover while inviting still more rightist complaints about the procedures adopted for health reform. Worse, given the present make-up of the Supreme Court, it is not hard to imagine a politically motivated decision declaring the process, and therefore, any resulting reforms to be unconstitutional.
Ezra Klein describes the essential elements of the Slaughter proposal—use of a “self-executing rule”—as follows:
Here's how that will work: Rather than passing the Senate bill and then passing the fixes, the House will pass the fixes under a rule that says the House "deems" the Senate bill passed after the House passes the fixes.
The virtue of this, for Pelosi's members, is that they don't actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn't voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.
The conservative arguments against the proposal were neatly summarized in op ed in yesterday's WSJ by Stanford Professor and Hoover Institute Fellow Michael McConnell.
Prof. McConnell's analysis, though, is far from compelling. However much Prof. McConnell desires to find a duty for both houses to pass identical texts, the constitution actually says no such thing. All the Constitution actually says about the subject is that "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." It is no more consistent with the text of the Constitution to interpret it as requiring each house to pass the same text or as requiring one house to pass a bill and the other to pass a statement declaring "we agree"--in either case the "same text" has been approved by both houses.
In addition, while citing the Supreme Court’s 1998 decision in Clinton v. City of New York, he fails to mention that the case concerned the constitutionality of a Presidential line item veto and rested on its conclusion that "procedures authorized by the Line Item Veto Act," which effectively permitted the President to change the text of legislation, "are not authorized by the Constitution." No question of congressional procedure was before the court and, as Prof. McConnell acknowledges, Congress is authorized to establish its own rules.
Professor McConnell, of course, also fails to mention the numerous times that self-executing rules have been used for prior legislation. A 2006 report of the Congressional Research Service both describes the origins of the “deemed passed” approach and recent uses by both Republicans and Democrats.
Finally, McConnell makes no mention of the 2007 decision of D.C Circuit holding that separation of powers prohibits the court from reviewing the means by which each house of Congress chooses to pass legislation. In Public Citizen v. United States, explained that
"The District Court held that Public Citizen's bicameralism claim is foreclosed by the Supreme Court's decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of "the two houses, through their presiding officers" as "conclusive evidence that [a bill] was passed by Congress." Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested "enrolled bill" – establishes that Congress passed the text included therein "according to the forms of the Constitution," and it "should be deemed complete and unimpeachable." Id. at 672-73. Recognizing that Marshall Field's "enrolled bill rule" prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. … We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case.
Indeed, a stronger case can be made that the 60 vote filibuster “cloture” rule, which led to this mess, is unconstitutional. As explained by Senator Lieberman in 1995, before discovering the joys of threatening a filibuster to protect the insurance industry, the constitution specifies 5 instances in which more than a majority is required for congressional action, and a filibuster isn’t one of them. This issue is discussed in a prior post and more fully in a recent post on the blog of the Nieman Foundation for Journalism at Harvard.
If the Slaughter proposal is not plainly unconstitutional as complained by the Right, then why is it a bad idea? Simply because the benefit is not worth the risk and, in fact, it may be counter-productive for congressional representatives looking for political cover. First, although the public may generally have only a vague understanding of the health reform proposals, a refusal to vote on the merits will plainly—and not entirely inaccurately—be seen as a dereliction of responsibility. Second, enactment of reform through the Slaughter proposal will put a darker cloud over passage than the the reconciliation process alone. Third, and most frighteningly, it is far more likely to put the future of reform in the hands of the activist conservative judges of the Supreme Court than a clear-cut vote. At the end of the day, the constitution means whatever the Supreme Court says it does. Most of the constitutional arguments raised by the right about health reform over the past few months border on frivolous. This one, however, is not, and it is not hard to imagine the Supreme Court using this issue as a means to snatch victory on health reform away from the Democrats (and regardless of the chaos that such a decision would cause).
