(CNSNews.com) – Representative David Dreier (R-Calif.), the ranking Republican on the House Rules Committee, said that if Democrats can muster enough votes to win passage of the so-called Slaughter Rule they can pass the Senate health care bill without actually holding a vote on the legislation.
The Slaughter Rule -- named for House Rules Committee Chairwoman Louise Slaughter (D-N.Y.) who proposed it -- would allow the Senate health bill to be incorporated into the Rule for the reconciliation bill coming out of the Senate. If members vote to pass this Rule they, in effect, pass the Senate health care bill wihout actually voting on it -- they instead vote on the reconciliation package.
Article 1, Section 7 of the Constitution, however, expressly states that for any bill to beome law "the Votes of both Houses shall be determined by the yeas and Nays, and the Names of the Persons voting for and against the bill shall be entered on the Journal of each House respectively." After that, under the Constitution, the president must either sign the bill or hold it for ten days (not counting Sundays), after which it will become law unless Congress adjourns in the interim.
Constitutional scholars have said that what the Democrats may try to do by making the Senate health care bill law without ever voting on it in the House is unconstitutional and could spark a constitutional crisis far worse than Watergate.
Dreier, who is the top House Republican responsible for making sure that Congress follows legitimate rules of procedure, told reporters yesterday that he is not a constitutional expert and that he had not spoken personally to any constitutional experts about the issue. He did say he had indirectly gotten "input" from such experts.
“If this passes and is signed into law, I think it becomes law,” Dreier said. “I’m not a constitutional lawyer and that’s the response from some of the experts with whom I’ve spoken – I didn’t speak to but have gotten some input from. I’m not in a position to raise the (constitutionality) question right now.”
Dreier said there is nothing the majority party (Democrats) cannot do so long as the Rules Committee, where Democrats hold a 9-4 majority, authorizes it. This would include passing health reform without actually voting on it.
“There’s nothing that can prevent it,” Dreier said. “It’s something, David [a reporter], that they can clearly do, if they have the votes.”
The plan Dreier was asked about is called the Slaughter Solution, named for Rules Committee chairwoman Rep. Louise Slaughter (D-N.Y.).
The Rules Committee sets the rules of debate for legislation before it is brought to the House floor. Under normal circumstances the committee lays out how much time each side is allowed for floor debates and which amendments they can offer on the floor. Amendments that the majority does not want debated or offered on the floor are often added to legislation in the Rules Committee.Such self-executing rules, as they are known, have been used by both parties to avoid extended debate on politically embarrassing matters, such as raising the national debt ceiling.
If Democrats use the Slaughter Solution, it would send the Senate-passed bill to the president to sign, and the amendments package would go to the Senate, where it presumably would be taken up under the budget reconciliation process.
Dreier said he had “explored” questions of the plan’s legality and found that the bill would still become law.
“I’ve explored that earlier today and I think that if it becomes law, it becomes law,” he said. “I think that that’s the case.”
The question of constitutionality of the so-called Slaughter Solution stems from the plain language of Article I, Section VII of the Constitution, which states that all bills must pass Congress via a vote in both chambers that is recorded in their journals:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”
Radio host, Landmark Legal Foundation President, and former Justice Department Chief of Staff Mark Levin said that the Slaughter Solution was a “blatant violation” of the Constitution on his radio program on Thursday, March 11.
“I can’t think of a more blatant violation of the United States Constitution than this,” said Levin. “If this is done, this will create the greatest constitutional crisis since the Civil War. It would be 100 times worse than Watergate. It would be law by fiat, which would mean government by fiat.”
Constitutional law expert Arthur Fergenson, who litigated the Buckley v. Valeo case enshrining campaign spending as a form of constitutionally protected speech, weighed in on Levin’s Thursday program, calling the plan “ludicrous,” saying that such a move would be “dangerous” because it would amount to Congress ignoring the clear constitutional provision for how a law is approved.
Fergenson explained that both chambers of Congress must each vote on identical bills before the president can sign them into law. Any bill signed by the president that had not first been voted on by both the House and Senate would be a “nullity,” he said.
“It’s preposterous, it’s ludicrous, but it’s also dangerous,” Fergenson said. “It is common sense that a bill is the same item. It can’t be multiple bills. It can’t be mash-ups of bills. It has to be identical, that’s why the House and Senate after they pass versions of the bill--and we just had this with what was euphemistically called the jobs bill--if there are any changes they have to be re-voted by both chambers until they are identical.”
“Both chambers have to vote on the bill,” Fergenson said. “If this cockamamie proposal were to be followed by the House--and there would be a bill presented (to Obama) engrossed by the House and Senate and sent to the president for his signature that was a bill that had not been voted on identically by the two houses of Congress--that bill would be a nullity. It is not law, that is chaos.”
Former federal judge and the director of Stanford University’s Constitutional Law Center Michael W. McConnell agreed with Fergenson’s assessment. Writing in The Wall Street Journal on March 15, McConnell called the Slaughter Solution “clever but … not constitutional.” McConnell noted that the House could not pass a package of amendments to a health reform bill it had not passed first.
“It may be clever, but it is not constitutional,” said McConnell in the Journal. “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.”
“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote,” wrote McConnell. “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.’”