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Why The Slaughter Solution Will Probably Be Allowed To Stand

Despite what seem to be some fairly clear Constitutional objections, there’s is a very good chance that the House of Representatives will be able to get away with the strategy of deeming the Senate bill as having been passed without actually voting on it.

Here’s why.

Ed Morrissey points to Public Citizen v US District Court for DC, a 2005 case from the U.S. Circuit Court of Appeals for the D.C. Circuit. In that case, Public Citizen was challenging a similar “deeming” rule adopted by the Republican House on a bill to increase the debt limit.

Here’s what the Court said:

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. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

I wouldn’t count on that happening.

Update 3/17/10: Fellow attorney KipEsquire takes issue with some of my arguments here, and I respond in a post here.

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24 Responses to “Why The Slaughter Solution Will Probably Be Allowed To Stand”

  1. Nick says:

    I’m not sure this is necessarily true. First, a large part of the Marshall Field case was actually about standing. Because the part that was different between the two bills did not injure Citizens, the court said that they did not have standing, and that their injury was not something that could be remedied. In other words, for a good 1/2 of the decision, they punted.

    The second half of the decision basically says that the best evidence that exists that the text was voted and passed correctly, is that signature on the bill. But the bill being passed, was claimed, to be slightly different in the two different versions. (I don’t think a “deeming rule” as being created today was actually being used here). In essence, Congress said… they were close enough.

    In the current case with the deeming rule, they wouldn’t have even voted on the bill being passed at all. In Marshall Field, the bill was actually voted on, and went through the normal channels. With HCR, the bill won’t have even been voted on. I think there is enough of a difference here, that a Constitutional challenge would still have merit, and teeth.

  2. But it was a deeming rule exactly like what they are considering now that was at issue in Public Citizen and both the District Court and Circuit Court applied the Marshall Field precedent to dismiss the case.

    Is it possible that the Supreme Court might look at it differently ? Anything is possible.

    Is it likely ? Given the political question doctrine and the Court’s historical antipathy toward reviewing the internal rules of the legislative branch I don’t think so.

    I don’t think this is a good idea, mind you, or that it’s politically smart.

  3. Nick says:

    Once again… the matter in Marshall Field seems to be that the version printed in the Congressional Record was different than the one signed by the Speaker and President of the Senate. B/C both Houses determine their own rules, they have always said that the official version is the one attested and signed. Essentially they argued that the section missing in the CR was a printer mistake, and did not affect the Constitutionality of the passage of the actual bill which was signed.

    That decision contains a lot of information regarding the speed with which the journals are kept, and the fact that mistakes were often made.

    Once again, that bill was voted on properly. The argument was really over which was the official version. The Slaughterhouse rule seeks to end around the requirement of even voting. I think that is a bridge to far.

  4. Nick,

    I understand your attempt to distinguish Marshall Field from this situation, it’s a good argument.

    My point is that the last time this deeming rule was challenged in Court, two Federal Court’s applied the Marshall Field precedent to state that they had no power to look beyond the attestation of the presiding officers of the House and Senate.

    Are there five votes on the Supreme Court to overrule M-F ? I’m not sure, heck I’m not even sure you’d get a Justice like Scalia on your side in a case like this.

  5. Nick says:

    But isn’t that exactly what Clinton v. City of New York did? They were pretty explicit when they said:

    The Balanced Budget Act of 1997 is a 500-page document that became “Public Law 105—33” after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may “become a law.”

    Now, their argument rests on the idea that a line item veto changes the exact text… not a deeming rule. BUT… they laid out a clear three step process which must be followed.

  6. Robert in SF says:

    I suppose this another case of “you can’t do what we did!” from the members of the Republic party…

    Case in point (from a summary provided by dailykos.com):

    House Republicans say they cannot block a Democratic maneuver that would allow Members to avoid a separate vote on the Senate health care bill.

    “There is nothing that can prevent it,” said Rep. David Dreier (R-Calif.), the ranking member of the Rules Committee. “It’s something they can clearly do if they have the votes.”

    Of course, that’s not preventing Dreier from attacking it.

    Dreier ripped the plan as “trying to avoid the accountability of an up-or-down vote” and said it violated Pelosi’s pledge of an open and transparent Congress. “It pains me to see,” he said.

    You know what’s coming next, right?

    When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority’s preferred changes….

    When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.

    On April 26, [2006] the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule. The first trigger was a double whammy: “In lieu of the amendments recommended by the Committees on the Judiciary, Rules, and Government Reform now printed in the bill, the amendment in the nature of a substitute consisting of the text of the Rules Committee Print dated April 21, 2006, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted in the House and the Committee of the Whole.”

    And which Republican was chairing the Rules Committee in April, 2006? Why, David Dreier, of course.

  7. Robert in SF says:

    And as for it being, as some pundits have claimed, unprecediented:

    “Self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House.” In a 2006 report, as Time’s Karen Tumulty pointed out, the Congressional Research Service defined the self-executing rule as part of the House rulemaking process:

    Starting about twenty-five years ago, in response to developments such as increased partisanship and uncertainty with respect to how long or controversial the amendment process on the floor might be, the Rules Committee began to issue more procedurally imaginative and complex rules.

    Definition of “Self-Executing” Rule. One of the newer types is called a “self-executing” rule; it embodies a “two-for-one” procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision. It was automatically agreed to when the House passed the rule.
    Self-executing rules require a vote. The CRS report makes clear that passage of a rule by the House is required for the “self-executed” provision to be adopted. Don Wolfensberger, former chief of staff for the House Rules Committee under Republicans, stated in a 2006 Roll Call column: “Almost every major bill must obtain a special rule, or resolution, from the Rules Committee permitting immediate floor consideration. The resolution also specifies the amount of general debate time and what amendments will be allowed. A special rule also may contain other bells, whistles, gizmos and gadgets.One of these optional attachments is a self-executing provision, which decrees a specified amendment to have been adopted upon the rule’s passage [Emphasis added]. In other words, once the House adopts the special rule it effectively has adopted the amendment before the bill has even been called up for consideration [Emphasis added].”

  8. Nick,

    If the deeming rule results in the same bill, with the same language, being “passed” in both houses, then I think the Court would likely find the practice acceptable.

    Clinton v. New York is distinguishable primarily because it was the grant of a power to the President that was not authorized by the Constitution

  9. Robert,

    Hypocrisy ? In Congress ?

    Surely you jest

  10. Robert in SF says:

    And id we deem this rule use to be unconstitutional, then would all previous laws passed thus be unconstitutional? If so, would we have to roll back those laws, undo any of the work performed under those laws, and if we wanted to re-enact those laws, call for a quick up/down vote?

    If so, I point back to the number of laws passed with this method, in my earlier comment on the sheer percentage of its use from 1995 on…

    I think the law-making provision has become complex, too complex for the layperson to really understand just based on the sheer number of parlimentary procedures in place to….well, I am not a legal scholar, so I am not sure of the reason for all the rules…you could broadly make the case they prevent the tyranny of the majority and anarchy….

    But if we live in a democracy, then why do we have to justify a 60% vote to pass a bill in the senate, when in a true democracy, 50.000001% seems to be all it takes.

    I mean, Hell…the Prop 8 vote to remove the rights of gays and lesbians to marry their same gender partner here in California passed with only 52.24%…not 60% as apparently required in the Senate….

    But anyway, I exaggerate for effect….

  11. Let's Be Free says:

    I would put an appeal of this issue up there along Bush v Gore. Putting all the detailed legal reasoning aside, the outcome in Bush v Gore was pretty predictable because many cases based on many theories and fact patterns had reached the conclusion that electoral disputes ought to be determined by political processes (in Bush v Gore the established political process was a decision of the Florida Secretary of State).

    In this case, in the absence of clear cut fraud, an unambiguously less than 50 percent vote, or violation of some explicit Consitutional requirement, Reid and Pelosi win because they are the are the elected arbiters of the Body politic. Whether they win based on the merits, standing, or other jusiciability questions, I will let you argue among yourselves.

  12. Robert in SF says:

    My mom *hates* politicians…she and my boyfriend would get along swimmingly on that topic….maybe not much else, but who knows…

    I think the law that elected members of Congress have to spend 85% (or some high number) of their time in the home area would help some. It would keep the lobbyists from having easy access to a number of Congresspersons at once in big junkets/fundraisers/schmooz sessions, and the people they represent could get more face time easier to express their views/concerns/demands….

    And eliminate a lot of the Rules of Order in dealing with one another and use 3rd grade rules of the classroom when dealing with passing laws. Propose, vote, and then move on.

    But I am a layperson when it comes to the legislature, so who knows….

  13. steveegg says:

    …unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

    In this case, it would be SCOTUS recognizing that a Constitutional crisis exists.

    Of course, the 1792 version of SCOTUS said that they prefer a law be fraudulently put onto the books to them declaring that fradulent act unconstitutional.

  14. Jon says:

    Robert in SF,
    Your examples of using the self-executing rule all are in referrence to adding admendments to bills, not outright passing a bill by that rule.

    And as for your obvious lack of paying attention in civics class, we don’t live in a true democracy, we live in a constitutional republic.

  15. Jon,

    In the Public Citizen case noted above, it was used to pass a bill. In that case, a bill to raise the debt ceiling.

    It survived two court challenges.

  16. steveegg says:

    Er, make that the 1892 version of SCOTUS. I should have known better than to believe that a Founding Fathers-era SCOTUS would willingly hand over uncheckable power to two members of Congress, especially if they and the President are of the same party.

    Heck, I’m surprised that no trioka before this one has figured out that they have been, for the last 112 years, with no support from the other 533-534 members of Congress (depending on whether the troika includes the Vice President or the Senate President Pro Tempore), create law.

  17. KipEsquire says:

    The enrolled bill doctrine has nothing whatsoever to do with the Presentment Clause. The EBD only concerns scriveners errors after the fact. The Presentment Clause reiterates that there must indeed be a “the fact” for the EBD to come “after.”

  18. Robert in SF says:

    I was referring to the democracy of voting with majority rule *in* Congress itself. Not of voting for members of congress to vote for laws. And we have some elements of true democracy in the law making areas within States, and when amending the constitution. I have heard it referred as a democratic republic.

    The rules that Congress has established for itself, over time, have resulted in a complex system of powers within the setup, to help prevent a simple majority vote (>1/2) from passing a law (filibusters)….so to me, we don’t have democracy in Congress…we have some other form of democracy, where in takes a 3/5 vote to pass when their is a split of blocks of voting in which one group has >2/5 of the votes but not >1/2.

    If we could get Congress (ha!) to simplify lawmaking:
    no amendments or riders
    no committees or gatekeeping
    no fillibusters
    straight up/down voting on any proposed bill that comes through

    The reason bills take up so many pages has more to do with how the bills have to be written to indicate the mark up of existing laws than of the complexity of the laws that are being proposed….you have to put in so much “edit” language, it easily expands almost exponentially!

  19. Let's Be Free says:

    Robert, we already have so many complex and convoluted laws that new laws need to be convoluted and complex as well in order to mesh with existing legislation. Got it. I understand.

    In nature when things accrete without end they get top heavy and collapse; the same thing is happening with our government and its systems of interlocking laws.

  20. [...] posts a rebuttal of sorts to my post yesterday about the probable constitutionality of the so-called Slaughter Solution: I vaguely recalled [...]

  21. [...] I noted yesterday and today, I seriously doubt that those legal challenges would be successful, and Jack Balkin [...]

  22. [...] I’ve noted before — here, here, and here — I have doubts about these legal challenges to deem and pass, but [...]

  23. Salt Lick says:

    Robert in SF is trying to change the subject. The subject is whether the Democrats should use this chicanery to pass a bill of this importance.

    This is really very simple. Suppose a group decides it wants to kill me. But the group has a rule that everyone must vote to kill me or else it doesn’t happen. One person doesn’t want to VOTE to kill me, because he doesn’t want to be on record for it in case there is trouble later. But he will join the group in voting TO SUSPEND THE RULE, AND “DEEM” THE DECISION TO KILL ME HAS PASSED, WITHOUT A VOTE.

    Now that person can say he didn’t vote to kill me, he just voted to allow everyone else to kill me.

  24. [...] point ? There’s nothing new or unprecedented about deem and pass. And, as I argue here and here, it’s most likely not [...]

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