Friday, March 19, 2010

rapid fire thoughts

About--what else?--the pending health care vote in the House:

A) A lot of outlets (even HotAir, my most beloved hour-to-hour update machine) are making a big deal about a vote in the House on Thursday that purportedly "endorsed" the use of the Slaughter strategy for the Health Care bill.

(The Slaughter strategy, or "deem and pass", is the mechanism wherein the majority party, if it can muster the votes to pass a reconciliation bill for another piece of legislation, can "deem" the other piece of legislation passed, despite there never having been a vote on the other piece of legislation--more down below)

I'm sorry, but that's not what happened. The vote, which finished at 222-203, was the sixth-such vote since January 20th of this year known as "ordering the previous question". This is a vote to give the minority party control of the House's agenda for a period of time, presumably in order to schedule one vote. The vote yesterday, as has happened each time this year, was "passed"--in other words, the majority did not give up control of the agenda on the floor of the chamber.

So how do we get from the benign description I offered above to the hyperbole that was all over my favorite sites on Thursday? Well, the House GOP had broadcast in very clear terms that their attempt to seize the agenda on Thursday was in order to bring to the floor a resolution that would implore Pelosi to keep the Slaughter rule on the sidelines for the upcoming HC votes. How binding the vote would have been on Madame Speaker will never be known, as the GOPs attempt to seize control for this stated purpose was voted down; ergo, the talking point that the House "endorsed" Slaughter-tac.

But here's the thing: what would have forced the GOP to keep "their" vote to the Slaughter rule? If I was given control of the floor yesterday, today, or even tomorrow, the vote that I would get scheduled is a straight-up vote on the Senate's Health Care Bill that is at the heart of all the shenanigans underway right now. The House Dems don't WANT to vote on the Senate bill--which is why they are working their lawyers overtime to come up with ways to pass something WITHOUT going to the yeas and nays on the Senate bill. So scheduling such a vote would really hamstring the Dem caucus--and would more than likely end up with a down vote on the bill. At that point, the Dems would have to stop with their efforts to "deem and pass"--even they couldn't deem they passed a bill that had, in fact, failed on a straight vote.

So the Dems did what any good majority would do: they didn't fail "ordering the previous question," thereby keeping control of the House's agenda. That is all, nothing else.

B) A lot of hay is being made that the House leadership finally scheduled the vote to take place on Sunday, the "logic" being that they wouldn't schedule a vote if they didn't have victory assured.

I'm not so sure.

Don't get me wrong: Pelosi may have 216 lined up in spades.

But the announcement of the vote was a foregone conclusion after this morning, when House Majority Whip Clyburn demanded to know the vote leanings of his caucus by 2pm today. There was NO WAY that a vote would not be scheduled following the publication of that demand, regardless of what vote counts were given to Clyburn. To do otherwise would be to admit not only that the votes weren't there yet, but that there was a looooong way to go to get to 216. So scheduling a vote for Sunday was going to happen, period.

Of course, it's turned out to be a pretty good strategy by Dem leadership, as several "uncommitteds" have suddenly become "yes", perhaps because they, too, think that the scheduling of the vote means that its passage is inevitable.

Which, need I remind you, is why we need to elect representatives that are capable of making up their minds based on the value of the legislation, not because they want to be part of the "cool crowd".

And C) the right's biggest hope now is that "deem and pass", as it will be used in this instance, is deemed unconstitutional by the courts. Conservative judicial luminaries are starting to weigh in, stating that "splitting" the bill in two in order to declare one part "passed" (and forwarded to the President for signature) while the second part goes to the other chamber for a vote violates Article 1, Section 7--in other words, "deem and pass" only works constitutionally if the bill that is "passed" in one chamber is also "passed" in the other chamber. The second the Senate changes a comma of the reconciliation bill--and they likely will--then the whole thing falls apart because both chambers have not voted to pass the same bill.

So what does history have to say about this? First, the source: Field v Clark, 1892--the "precedent" that was referred to by the DC Circuit Court and upheld on appeal in 2006 when the Dems made the case that the House and the Senate did not pass the same bill (what later became known as the Deficit Reduction Act). In Field, the court was asked to determine 3 things, one of which seems particularly pertinent today: if the journal entry of the bill, as recorded in both chambers, does not match up between the chambers, then did the chambers vote on the same bill? The court, as has been noted in several places, deferred to the authority of the chambers' executive officers, noting that there " not a statutory declaration that the journals are the highest evidence of the facts stated in them, or complete evidence of all that occurs in the progress of business in the respective houses, much less that the authentication of an enrolled bill by the official signatures of the presiding officers of the two houses and of the President, as an act which has passed Congress and been approved by the President, may be overcome by what the journal of either house shows or fails to show." In other words, the journal entries do not overcome the "word" of the presiding officers of the two houses.

And I'm fine with that. So what gives, you might ask?

Only the following: "The argument, in behalf of the appellants, is that a bill, signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. In view of the express requirements of the Constitution, the correctness of this general principle cannot be doubted. There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, not in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress."

So Field did not establish the chamber journal as the final word on the text contained in a bill. It also, however, allowed that the Speaker and the Senate Majority Leader could not just declare a bill as passed in their respective chamber.

The question becomes: at what point in the eye of the courts does the presiding officer overstep their bounds?

Field held that one section--approx. 150 words in length--did not violate the Speaker's perogative. In 2006, it was decided that one number did not amount to "different bills"--although that one number had about 2 BILLION dollars of impact on the bill.

But with the Health Care bill, we're talking about a 2000-plus page monstrosity that the Speaker just wants to "deem" as passed as its own bill in order to forward it to the President.

Methinks there might be some room here to get a court to entertain hearing arguments.

Here's to hoping, anyway.


Anonymous Anonymous said...

thank you

1:49 AM  

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