The year was 2005, and Republicans needed to raise the US debt limit in order to cover the costs of their increased spending.  The GOP used a self-executing rule to protect both Republicans and Democrats in the House from having to take an embarrassing vote to increase the national debt rather than start paying it down and cutting spending.  A lawsuit by a famous political gadfly gave some Democrats an opportunity to make deficit spending a big issue in the upcoming midterms, and guess which Democrats seized that opportunity by writing amicus briefs for the lawsuit?   Mark Tapscott recalls:

But put aside the present for the moment and step into my time machine. Dial the date selector back to 2005 when the Republican majority in Congress approved a national debt limit increase using a self-executing rule similar to the Slaughter Solution.

Guess who went to federal court to challenge the constitutionality of the move? The Ralph Nader-backed Public Citizen legal activists. Here’s the argument they made:

“Article I of the United States Constitution requires that before proposed legislation may “become[] a Law,” U.S. CONST. art. I, § 7, cl. 2, “(1) a bill containing its exact text [must be] approved by a majority of the Members of the House of Representatives; (2) the Senate [must] approve[] precisely the same text; and (3) that text [must be] signed into law by the President,” Clinton v. City of New York, 524 U.S. 417, 448, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998).

“Public Citizen, a not-for-profit consumer advocacy organization, filed suit in District Court claiming that the Deficit Reduction Act of 2005, Pub.L. No. 109-171, 120 Stat. 4 (2006) (“DRA” or “Act”), is invalid because the bill that was presented to the President did not first pass both chambers of Congress in the exact same form. In particular, Public Citizen contends that the statute’s enactment did not comport with the bicameral passage requirement of Article I, Section 7 of the Constitution, because the version of the legislation that was presented to the House contained a clerk’s error with respect to one term, so the House and Senate voted on slightly different versions of the bill and the President signed the version passed by the Senate.

“Public Citizen asserts that it is irrelevant that the Speaker of the House and the President pro tempore of the Senate both signed a version of the proposed legislation identical to the version signed by the President. Nor does it matter, Public Citizen argues, that the congressional leaders’ signatures attest that indistinguishable legislative text passed both houses.” (Emphasis added)

And now for the kicker, guess who joined Public Citizen in that suit with amicus briefs:

  • Nancy Pelosi
  • Henry Waxman
  • Louise Slaughter

If the Pelosi/Slaughter/Waxman argument against using a self-executing rule against a debt limit increase measure sounds familiar, it should because it’s the same argument now being used by Republicans to oppose the Slaughter Solution for moving Obamacare through the House.

Debt limit increases are not exactly the stuff of revolutionary change.  Both parties have demanded and received authorization for the hikes.  The ObamaCare bill, on the other hand, imposes individual mandates on every resident in the nation to buy insurance, the first such mandate ever imposed.  Surely this would create standing for every single citizen to file this kind of lawsuit … right?

Well, maybe, but in Public Citizen v US District Court for DC, the appellate court for DC didn’t bother with the argument for Nader’s standing because it could rule straight away on the merits of their claim against the self-executing rule.  And conservatives won’t like that precedent:

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 other words, the signatures of the Speaker of the House and President Pro Tempore of the Senate are considered authoritative on the question of process.  The court refused to interfere on a political question in 1892 and has maintained that precedent since.  Unless this Supreme Court intends on overturning Marshall Field — an action that would create a constitutional crisis — Pelosi’s signature will be considered “unimpeachable,” at least in terms of process.  The courts will undoubtedly have more to say on the constitutionality of the actual law, but probably not on the Slaughter Rule.

Update: I credited David Freddoso with this piece, but it was written by another other good friend of mine at the Washington Examiner, Mark Tapscott.  I’ve corrected the citation above.