Former federal judge: Yes, the Slaughter strategy is unconstitutional

posted at 8:05 pm on March 19, 2010 by Allahpundit

Another bite at the apple for Michael McConnell, who was appointed to the appellate bench by Bush, seriously considered for a Supreme Court seat, and who blasted Slaughter’s gambit in the Journal just a few days ago. The left reacted to his piece by noting that “deem and pass” has been used before — which is true. But it’s not “deem and pass” that’s the big problem, says MM.

It’s deem, pass, and split.

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

This goes back to that bombshell parliamentarian ruling insisting that Obama has to sign something before the Senate can start on reconciliation. The whole point of the Slaughter strategy originally, as I understood it, was to make it impossible for Obama to sign the Senate bill into law until Reid passed a fix matching the House’s. Instead of voting separately on Bill A (Reid’s Senate bill) and Bill B (a reconciliation fix), the House would integrate them into Bill AB — which Obama couldn’t sign until Reid passed B, too. That’s how Pelosi was going to assure wavering Dems that the Senate would keep its promise to pass something. If they didn’t, O-Care would be dead. In other words, the point was never to split Bill AB back into separate bills after it passed (I think) but, on the contrary, to keep it intact. The parliamentarian destroyed that possibility, and yet, bizarrely, despite the potentially catastrophic constitutional flaw, they’re … still going to use the Slaughter strategy. The idea, I guess, is that there’s some political benefit to letting House Dems claim that they technically never voted for Bill A, Reid’s bill, only the new and improved Bill AB. But if reconciliation collapses in the Senate, all they’ll be left with is Bill A and a killer GOP talking point that the new health-care law of the land was, by the Democrats’ own admission, never technically voted into law. Super.

As for the separation of powers argument that the court shouldn’t and won’t second-guess Congress on its own procedures, I know there’s some semi-precedent for it but … really? So if Reid and Pelosi hold a joint presser tomorrow summarily declaring that the Senate bill and the fix shall now be considered duly passed, John Roberts and the gang would nod at that? Even I’m not that pessimistic.

Update: To put it differently, unless I misunderstood what Slaughter was aiming for, the Democrats liked her strategy originally precisely because they agreed with McConnell that you can’t split a merged bill once it’s passed. That was their leverage over Reid: Once they passed it, he had to match it by passing the fix. If he failed, splitting the House bill and sending Bill A only to Obama for signature wasn’t an option.

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I want to believe.

RINO in Name Only on March 19, 2010 at 9:56 PM



landlines on March 19, 2010 at 10:08 PM

landlines on March 19, 2010 at 10:08 PM

Impeachment is a distinct possibility, if the get the majority in the House, which is a certainty at this point.

Rebar on March 19, 2010 at 10:11 PM

mrpeabody on March 19, 2010 at 9:58 PM

Take your 100+ names and go away. It’s not your site.

notropis on March 19, 2010 at 10:11 PM

My Response:

Go ahead. I have approx. 100 logins, I can change my IP address at will. I can make your
life misery on Earth. You are about to lose your audience anyway. Once you start censoring the end
comes fast. Do you have your resume updated?


mrpeabody on March 19, 2010 at 9:58 PM

100 logins? Are you fracken kidding me?!
I’ve only got about 25 myself.

Joe Bloggs on March 19, 2010 at 10:14 PM

Only with a law abiding 5-4 majority we now have.

With Democrats, the law is whatever they feel it is.

scotash on March 19, 2010 at 10:21 PM

A couple more Obama appointees, like the last one, and the Supreme Court will be gone as well.

GaltBlvnAtty on March 19, 2010 at 10:23 PM

Forget impeachment. Only with a Republican-controlled Congress should that even be considered.

newton on March 19, 2010 at 10:23 PM

mrpeabody on March 19, 2010 at 9:58 PM

Go back to dkos, idiot

KeepOhioRed on March 19, 2010 at 10:23 PM

mrpeabody on March 19, 2010 at 9:58 PM

Your hubris just unmasked you…

… have fun talking to yourself.

Seven Percent Solution on March 19, 2010 at 10:28 PM

I Still Believe
Dr Evil on March 19, 2010 at 8:22 PM
I’ll see that and raise you an Uprising.

Bishop on March 19, 2010 at 8:26 PM

fullogas on March 19, 2010 at 10:58 PM

Mr Peabody, way to prove that being a liberal sooo isn’t proof of being mentally ill (roll eyes).

Just an FYI you half-wit troll. Their site, their rules. They want to remove your hate filled rants, then it’s their call. Just like I don’t get to come into your house and verbally abuse you, you don’t get to come into theirs and do the same. That isn’t censorship you whiny, narcissistic, pissant.

Hard Right on March 19, 2010 at 11:44 PM

The left reacted to his piece by noting that “deem and pass” has been used before…

Um…so what? Just because this legislative process hasn’t been challenged yet doesn’t mean it is constitutional.

Mike Honcho on March 20, 2010 at 12:21 AM

It’s perfectly constitutional. See Marshall Field v. Clark (1892).

crr6 on March 20, 2010 at 12:37 AM

It’s perfectly constitutional. See Marshall Field v. Clark (1892).

crr6 on March 20, 2010 at 12:37 AM

More accurately, it’s not justiciable. In any event, Ed already wrote about it in the linked post.

crr6 on March 20, 2010 at 12:42 AM

Everyone seems to be missing what the Democrats are doing. They’re going to pass this monstrosity, rules be damned.

They’re going to come up with some flimsy pretense and just pretend that it passed. They’re going to send it to the President and he’s just going to pretend it passed and sign it.

Then they’re just going to implement it…since it passed and is now the law.

It’s been the only rule since Obama got elected. Damn the rules, forget the polls, full speed ahead and dissenters overboard.

schmuck281 on March 20, 2010 at 1:26 AM

We’re arguing about whether the Democrats are complying with the rules of the game. The problem is, we’re playing gin and they’re playing rugby.

The rules only matter if you recognize them.

schmuck281 on March 20, 2010 at 1:39 AM

mrpeabody on March 19, 2010 at 9:58 PM

lighten up Francis

DSchoen on March 20, 2010 at 2:52 AM

You have to give this congress some credit. They’ve actually invented a new form of pornography.

trigon on March 20, 2010 at 3:18 AM

Somebody needs to inform these people that our Constitution is not a plaything.

hillbillyjim on March 20, 2010 at 3:39 AM

When are you guys going to understand that Impeachment alone is meaningless? It is only Conviction and Removal in the Senate which counts for anything more than a politcial circus and media event.

This whole push for Impeachment sounds very much like the crowd which voted in the 2008 election for Hussein and the Democrates to “teach the Republicans a lesson”. How’s that work out? Do you imagine Impeachment would work better?

There is no way in hell the the Senate would convict, even if the Republicans took both Houses.

Friendly21 on March 20, 2010 at 5:31 AM

<blockquoteCapedCon at 9:33
Signing into law what is later determined to unconstitutional is not an impeachable offense.

GaltBlvnAtty on March 19, 2010 at 9:40 PM

Of course it isn’t. However, knowingly violating the Constitution is. The Constitution aren’t simply a set of suggestions. The only issue in his case would be “knowingly”.

Lefty loons have a small number of common traits. First and foremost, they follow “feelings” instead of logic, reason and empirical evidence. This is followed closely the need to describe like-minded people as “smart”. Yet, their very words betray the notion that they have an IQ above their shoe size…..

Obama is just the typical example. Very smart… very articulate…. but, without the TelePrompTer, we get “57 states”, “speak Rumanian”, his parents meeting and marching in Selma (years after he was born). Being cunning or sly is far from the same thing as being intelligent. Pelosi and Obama saying the same thing a little differently…. “We have to pass the bill to know what’s in it”. What utter bullsh!t.

All you have to do is review the “Obamateurisms” on this site to see how absolutely inept and clueless this man and his speech writers for the ‘PrompTer’ truly are.


CapedConservative on March 20, 2010 at 6:31 AM

Nancy is hitting 70 and I think we all should tell her how much we are going to enjoy pissing on her grave!

tim c on March 20, 2010 at 6:45 AM

Nancy is hitting 70 and I think we all should tell her how much we are going to enjoy pissing on her grave!

tim c on March 20, 2010

Does Botox stay in the tissues after death?

Extrafishy on March 20, 2010 at 10:42 AM

People are wondering what our military would do under those circumstances. General Casey’s recent and stunningly PC statements have caused concern to many who once believed that the US military would not fire on Americans.

GaltBlvnAtty on March 19, 2010 at 9:36 PM

Does anyone have a link so I could read these comments?

I remember correctly McArthur was in charge of troops that fired on civilians around WW1 in Washington.

VikingGoneWild on March 20, 2010 at 10:46 AM

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