Bloomberg: Pelosi Tactic for Health-Care Vote Would Raise Legal Questions

[spursncowboys]

Pelosi Tactic for Health-Care Vote Would Raise Legal Questions


By Greg Stohr






Some legal scholars question whether that approach can be squared with the Constitution and the Supreme Court’s 1998 declaration that the two houses of Congress must approve “precisely the same text” before a bill can become a law.


“Any process that does not result in the House taking of yays and nays on statutory text identical to what passed the Senate is constitutionally problematic,” said Jonathan Adler, a professor who runs the Center for Business Law & Regulation at Case Western Reserve University’s law school in Cleveland.






http://www.bloomberg.com/apps/news?pid=20601087&sid=aTQARvST4dv8#

[Wild Cobra]

This is a given. That's why you cannot pass legislation like they want to. they want to approve a rule that allows later revisions after the vote, with a vote. Anyone who thinks this is right, is really dumb, or has an agenda that allows them to use the constitution as toilet paper.

[ElNono]

I believe the vote is for the same exact law passed in the Senate. The changes would come on a reconciliation bill afterwards.

[Wild Cobra]

I believe the vote is for the same exact law passed in the Senate. The changes would come on a reconciliation bill afterwards.Changes either place have to be voted on. This rule thy want to pass does kind of throw me, but don't they want the rule to agree on whatever the senate approves? This is a vote before changes, not a vote on the changes.

[ElNono]

Changes either place have to be voted on. This rule thy want to pass does kind of throw me, but don't they want the rule to agree on whatever the senate approves? This is a vote before changes, not a vote on the changes.

Correct. The House vote is on the same bill that passed the Senate way back when. The changes would be on a separate bill that would have to go through both the senate and the house, and can only be put forth after the current proposal is enacted into law (basically, you can't vote to amend a law that's no a law yet). Since they're not going to have majority for the bill that makes the changes, they're probably going to attempt to pass it with reconciliation.

[Wild Cobra]

Correct. The House vote is on the same bill that passed the Senate way back when. The changes would be on a separate bill that would have to go through both the senate and the house, and can only be put forth after the current proposal is enacted into law (basically, you can't vote to amend a law that's no a law yet). Since they're not going to have majority for the bill that makes the changes, they're probably going to attempt to pass it with reconciliation.
So, can you agree the process is illegal, if they don't actually vote on the final version?

Love to chat more, but I have to get ready for work. Have to leave in 1/2 hr.

[ElNono]

So, can you agree the process is illegal, if they don't actually vote on the final version?

Love to chat more, but I have to get ready for work. Have to leave in 1/2 hr.

I can't agree. What's illegal about it? Senate approved, now the House will approve and the President will sign. Then they'll go for a second bill to make changes to the first bill after it becomes a law. There's nothing shady about it.

[boutons_deux]

If it's illegal, then the Repugs will challenge it, but they know it's legal because they used exactly the same tactics 2001-2008.

[EmptyMan]

I'm impressed with the degree of clusterfcuk they have been able to turn this into it.

[SnakeBoy]

I believe the vote is for the same exact law passed in the Senate. The changes would come on a reconciliation bill afterwards.

My understanding is that they (the house) votes on the changes not the senate bill. Passage of the changes deems the senate bill passed. Then the senate has to pass the changes via reconciliation.

[SnakeBoy]

The health care reform debate: What 'deem and pass' really means
By Catharine Richert, Times Staff Writer
In Print: Friday, March 19, 2010

"Deem and pass."

It may sound like a football play, but it's House Speaker Nancy Pelosi's favored procedural maneuver to pass health care reform.

Such legislative gymnastics have Republicans up in arms, including Rep. Cliff Stearns, R-Ocala, who lamented the tactic in a speech on the House floor.

"There is no precedent for what the Democrats are doing with this deception," he said Monday. "We have never written a reconciliation bill to amend a law that does not exist."

Stearns is talking about a series of procedural tools that House and Senate Democrats plan to use to pass their health care overhaul. He and other Republicans say the move flouts congressional rules and may even be unconstitutional.

Before we can decide if he's right, there are some essentials for understanding the arcane world of congressional procedure. Listen up, because you're going to be hearing these terms thrown around in the showdown on health care:

Reconciliation: Bills considered under this procedure cannot be filibustered; they need only a simple majority to pass. Reconciliation was created as part of the 1974 Congressional Budget Act in order to make it easier to bring revenues and spending in line with caps set by the annual budget resolution. The authors of the procedure did not envision it as a way to fast-track policy legislation, but Congress has used it to pass nonbudget measures, including welfare reform in 1996 and changes to Medicare and Medicaid.

"Deem and pass": This phrase refers to a House tactic that allows it to pass a bill without actually having a roll call vote; it is technically known as a "self-executing rule." Here's how it works: The House Rules Committee is in charge of writing rules for floor debate. The rule dictates what amendments can be offered to a given bill and how long it will be debated, for example. A self-executing rule is essentially a two-for-one special; when the House votes to adopt a self-executing rule, it simultaneously adopts a separate bill or amendment, which is specified in the rule itself. The House "deems" another bill to be passed as it adopts the rule.

The House and Senate have both passed versions of the health care bill. There are big differences between the two, so typically the two chambers would pick a handful of lawmakers to hash out those discrepancies in a conference committee. Then, the House and Senate would vote again on the final product, called a conference report.

But Senate Democrats lost their 60-vote, filibuster-proof majority in January when GOP Sen. Scott Brown was elected in Massachusetts. That means Senate Republicans could block a conference report.

The process is further complicated by a large portion of House Democrats who don't like the Senate bill, opposing such things as a tax on so-called "Cadillac'' insurance plans and a special Medicaid perk for Nebraska.

So the Democrats are turning to this complicated strategy to pass health care reform.

Here's how it could go down: The Rules Committee will cobble together a self-executing rule for the House to consider the package of reconciliation fixes to the Senate bill — for example, eliminating special Medicaid subsidies for Nebraska — but that also includes language that "deems" the Senate bill passed once the House adopts the rule.

Meanwhile, the Senate parliamentarian has said that the Senate bill must be signed by the president before any of the House changes can be made. So, presumably, President Barack Obama will approve the bill as soon as the House deems it passed. Then, the Senate will debate the package of reconciliation fixes passed by the House. The package will only need a simple majority to pass, but there's still plenty that could derail it.

The tactic serves two purposes. It keeps House Democrats who dislike the Senate bill from having to vote on it, and it potentially solves the problem of making changes to the Senate bill without needing 60 votes to pass.

The GOP is calling foul, saying the strategy is unfair and potentially unconstitutional.

"What's really remarkable about this whole business is that not only the American people rejected this plan but Democrats are so desperate to pass it that they're willing to trample on the traditional rules of the House and Senate and even trample on the Constitution of the United States to get it done," said Indiana Republican Mike Pence.

But is it unprecedented, as Stearns claims?

Self-executing rules are not uncommon in the House. For instance, the chamber used the procedure on Feb. 3 to adopt a Senate amendment to a resolution about raising the statutory limit on federal debt. House Republican leaders used it 36 times between 2005 and 2006 and Democrats used it 49 times in 2007 and 2008, according to Brookings Institution congressional scholar Thomas Mann writing for Politico.

And the reconciliation process has been used repeatedly for policy-related measures. For instance, Congress used reconciliation in 1996 to make big changes to welfare, including separating it from Medicaid.

Norm Ornstein, a leading congressional scholar with the conservative American Enterprise Institute, said the GOP in 2006 used a very similar tactic to what the Democrats are now proposing, employing a self-executing rule to pass $38.8 billion in budget cuts without having to vote on an immigration measure.

So, there's a whole lot of precedence for the individual tactics Democrats are proposing to use, though the specific combination of a self-executing rule and reconciliation is a bit unusual, said Jim Horney, a budget expert at the left-leaning Center for Budget and Policy Priorities.

"There's nothing about (the process) that's dramatically at odds with the way things get done," Horney said. "With almost every bill, you can find some way in which the circumstances are a little different. But to imply that it's somehow a big departure from the way things are done could be wrong."

Donald Wolfensberger served on the House Rules Committee for over 10 years, and was around when reconciliation was first used. He follows Congress closely as director of the Congress Project at the Woodrow Wilson International Center for Scholars, and agrees with the other congressional experts we spoke with that there's precedent, but not for this specific tack. The 2006 instance mentioned by Ornstein is "the closest analogy," to what the Democrats are proposing. "It would be pretty similar," he said.

Wolfensberger also said it's the first time he has seen Congress write "a reconciliation bill to amend a law that does not exist," as Stearns said. On that point, Stearns is correct, he said; the president will not have signed the Senate bill before the House passes the package of fixes.

So, that brings us back to Stearns' original claim. While the combination of a self-executing rule and reconciliation is a relatively novel combination of procedural tools, all the congressional experts we spoke with agreed that there are plenty of similar examples of what the Democrats are proposing to do, nor is the party flouting procedures that are already on the books. As a result, the first part of Stearns' claim is somewhat misleading. However, Stearns is right that this is the first time Congress has written a reconciliation bill to amend a law that does not exist.

[SnakeBoy]

If it's illegal, then the Repugs will challenge it, but they know it's legal because they used exactly the same tactics 2001-2008.

So republicans have never done anything illegal or unconstitutional by your logic?

Has this rule ever been challenged in court?

[boutons_deux]

"So republicans have never done anything illegal or unconstitutional by your logic?"

That's by your non sequitur, not by my logic. GFY.

[Mr. Peabody]

So republicans have never done anything illegal or unconstitutional by your logic?

Has this rule ever been challenged in court?

I thought the rule was challenged in court by Democrats some time ago and Republicans defended it. It was upheld. Both these parties do whatever suits them at the time. Nothing new here.

[SnakeBoy]

I thought the rule was challenged in court by Democrats some time ago and Republicans defended it. It was upheld. Both these parties do whatever suits them at the time. Nothing new here.

Of course there's nothing new to politicians being hypocritical.

I believe the case you're refering to was thrown out because the dems couldn't prove any damages, so it's constitutionality was never ruled on. I found a good article on the topic...
http://www.propublica.org/article/deem-and-pass-unlikely-to-be-reversed-in-courts-experts-say

[xXx]

as long as there is accountability.
these reps know what they are voting for.

people don't want to hear, "but i didn't actually vote for the bill, just the changes" bullshit if this turns out to be a clusterfuck.

[coyotes_geek]

regardless of whether or not it's been used before it's a pretty chickenshit way to try and pass legislation.

[possessed]

How about we just deem the Democrats voted out of office and send their replacements in?

[Cleveland Steamer]

they used exactly the same tactics 2001-2008.

this is the new, more transparent regime Obama promised on the campaign trail? sounds like the same old bullshit, just a different bullshitter spouting it.

[ElNono]

My understanding is that they (the house) votes on the changes not the senate bill. Passage of the changes deems the senate bill passed. Then the senate has to pass the changes via reconciliation.

Well, the very first thing that needs to happen is that the senate version that passed back in November? I think, needs to pass the house and the Prez needs to sign it into law. There's no procedural workaround for that.
Then the package of changes needs to be voted by both chambers of Congress. As you point out, it can pass the House, then go for reconciliation on the Senate (or a direct vote that would most likely invoke a filibuster by the GOP).

Although, the last I read this afternoon is that they might not do the changes, and the old Senate bill might just stand as the new law of the land.

[Winehole23]

Has this rule ever been challenged in court?Yes. The challenge failed.

[EmptyMan]

This sucks :(

I wanted to see what would happen after the Slaughter

[spursncowboys]

OP
The greatest obstacle to any challenge may be getting a court to consider the issue. In 2007, a federal appeals court in Washington rejected a similar attack on a Republican-backed package of tax and spending cuts, which because of a clerk’s error had passed the House and Senate with different wording.

The three-judge panel said that, under an 1892 Supreme Court decision, courts can’t second-guess congressional leaders when they certify that both houses have passed the same legislative language.

“I don’t think courts would be too quick to declare such a move unconstitutional,” Adler said. More likely, judges would declare the matter a “nonjusticiable political question,” he said.

[spursncowboys]

Supreme Court precedents nonetheless raise questions about the practice. In a 1983 case, the court said the federal government’s legislative power could be exercised only “in accord with a single, finely wrought and exhaustively considered, procedure.”

In that case, a 7-2 court invalidated a law that let a single house of Congress vote to overrule the attorney general and force deportation of an alien.

[spursncowboys]

The high court reiterated the “finely wrought” language in the 1998 ruling, a 6-3 decision that struck down a congressionally enacted line-item veto, which would have let the president eliminate individual spending provisions.

As part of the ruling, Justice John Paul Stevens said the Constitution “explicitly requires” that the House and Senate approve the exact same text.

[George Gervin's Afro]

Uh... snc you do realize that it's an up or down vote now..so this issue is a non existant one now..now go back and continue to cut and paste away..

[spursncowboys]

gga: thanks for reminding me why i don't read your posts. the C&P were extensions to wh's last response. they were all from the op, which would mean they were on topic. Which would mean they were adding to this topic's discussion, unlike your post.

[George Gervin's Afro]

gga: thanks for reminding me why i don't read your posts. the C&P were extensions to wh's last response. they were all from the op, which would mean they were on topic. Which would mean they were adding to this topic's discussion, unlike your post.

so you agree it's a moot point now. keep posting away moron.