The Slaughter Solution and the Constitution

Mar 15, 2010

Michael McConnell is the director of the Constitutional Law Center at Stanford Law School; he had an op-ed this morning in the Wall Street Journal discussing a legislative sleight of hand being discussed among Democratic leaders in the House.  The Slaughter Solution is named after the chairwoman of the House Rules Committee, Louise Slaughter of Rochester New York.  Her committee is a powerful group that determines how bills are debated and passed in the lower chamber.  Ms. Slaughter’s proposal is viewed as a way to avoid forcing House Democrats to vote for a bill that is wildly unpopular in many districts.  The proposal would allow members to make a procedural vote in place of voting on the actually legislation the result would be that the Senate version would be deemed passed.

The problem with this proposal is that legislators are obligated to vote on a bill should they want it to become law.  The Constitution and the entirety of US history are completely clear on this.  That the Majority continues to try to find a way around having to vote on a piece of legislation that was written entirely by Democrats in a body where they have a 75 vote edge should suggest that maybe it’s not a great piece of legislation.

. . . according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to "determine the Rules of its Proceedings." Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The whole article can be found here.  It is worth reading in its entirety, though a subscription is required to do so.

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