Constitutional expert rebuts claim that health care procedure is unconstitutional


Conservative media figures have recently claimed that the use of a legislative procedure called a "self-executing rule" to pass health care reform in the House is unconstitutional. However, Yale law professor Jack Balkin has explained that the procedure in question would pass constitutional muster; additionally, federal appeals courts have recently held that the constitutional requirement that both houses pass a bill has been met when the House speaker and Senate president attest the bill has passed.

Right-wing media claim Dems are "slaughtering the Constitution" with rule

Beck: "How is this even constitutional?" Discussing the "Slaughter rule" on the March 16 edition of his show, Beck asked: "How is this even constitutional?" Beck similarly wrote in his newsletter that Democrats are "slaughtering the Constitution" and that "the Constitution is being thwarted" if the health care reform legislation passes using the self-executing rule.

BigGovernment: Congress is "violating the Constitution" with Slaughter rule. A March 11 post on Andrew Breitbart's BigGovernment website stated that the "Slaughter Solution has one very large obstacle -- the Constitution Article I, Section 7," and that "if this Congress continues down this path of violating the Constitution, the 'people' will have a viable case, class-action or otherwise, in the US courts because it is going to be extremely difficult for a judge to ignore that the 111th Democrat-Progressive led Congress violated Article I, Section 7 to the most obscene extent."

Jim Hoft: "Democrats will use the unconstitutional 'Slaughter Rule.' " In a March 14 post on his Gateway Pundit blog, Jim Hoft wrote: "Democratic leader Rep. Chris Van Hollen admitted today on FOX News Sunday that democrats will use the unconstitutional 'Slaughter Rule' to ram their pro-abortion nationalized health care bill through Congress. Democrats announced this tactic last week. They will pass the bill without voting on it. They will take over one-sixth of the US economy without even voting on it."

Hot Air: House is using self-executing rule "for the first time in U.S. history." A March 14 Hot Air blog post stated: "We're hours away from Slaughter revealing the strategy and Democrats have no other mechanism to pass a bill other than using an extra-Constitutional procedure. They don't have the votes to pass the Senate Bill, so they are -- for the first time in U.S. history -- about to rule that they actually passed a bill they never voted on."

Malkin calls Rep. Slaughter a "Constitution-butcher." On March 13, Fox News contributor Michelle Malkin displayed the following graphic on her website under the headline, "Constitution Butchers: Stop Pelosi's Slaughter House":

Legal scholar Balkin debunks claim that rule is unconstitutional

Yale Law professor Balkin: Self-executing rule is constitutional if done properly. In a March 15 post on his Balkinization blog, Balkin wrote:

[T]here is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule.

Federal appeals courts recently decided that constitutional requirement is satisfied when Speaker and Senate president attest that identical language passed both houses. In Public Citizen v. U.S. District Court for the District of Columbia, the U.S. Court of Appeals for the D.C. Circuit held that if both the House speaker and the Senate president attest that identical bills have passed both houses of Congress, the courts must accept that the constitutional requirement has been satisfied. (Malkin and other conservatives have pointed to the Public Citizen case to falsely accuse Democrats of hypocrisy.) From the decision (which quoted from the Supreme Court case, Marshall Field et al. v. Clark):

The Court crafted a clear rule: "[I]t is not competent for [a party raising a bicameralism challenge] to show, from the journals of either house, from the reports of committees or from other documents printed by authority of Congress, that [an] enrolled bill" differs from that actually passed by Congress. Id. at 680, 12 S.Ct. 495. The only "evidence upon which a court may act when the issue is made as to whether a bill ... asserted to have become a law, was or was not passed by Congress" is an enrolled act attested to by declaration of "the two houses, through their presiding officers." Id. at 670, 672, 12 S.Ct. 495. An enrolled bill, "thus attested," "is conclusive evidence that it was passed by Congress." Id. at 672-73, 12 S.Ct. 495. "[T]he enrollment itself is the record, which is conclusive as to what the statute is ..." Id. at 675, 12 S.Ct. 495. [alterations in the original]

The U.S. Court of Appeals for the Second Circuit agreed with the D.C. Circuit in OneSimpleLoan v. Secretary of Education.

Ornstein: Conservative complaints of rule is "hypocrisy," "disinformation"

Congressional scholar Ornstein: Conservative criticism of self-executing rule is "hypocrisy," "feigned indignation," and "disinformation." From a post by Norman Ornstein on the American Enterprise Institute's blog, The Enterprise, titled, "Hypocrisy: A Parliamentary Procedure":

Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can't recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of "deem and pass." That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration.

Posted In
Health Care, Health Care Reform
Network/Outlet, Gateway Pundit
Glenn Beck, Michelle Malkin
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