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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