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Tuesday, March 16, 2010

Slaughtered By Self-Execution

Take your pick of the name to call the apparent Democratic Party plan to pass the Senate health care bill by not voting on it.

Democrats plan to use a procedure where a separate reconciliation bill, which would be subject to a vote, would contain language "deeming" the Senate bill passed.

Call it the Slaughter Solution (after the Congresswoman Louise Slaughter, D-NY) or the Self-Executing rule.

Either way, the use of such a procedural device on a bill this sweeping will call into question the legitimacy of the legislation (both constitutionally and politically).

David Axelrod challenged Republicans to "make my day" by running against the health care bill in the November elections.

We will not have to make Axelrod's day, because Democrats will have slaughtered themselves through self-execution.

Update: Many commenters are wondering about the constitutionality of the "Slaughter Solution." This Politico article has a good, plain-English explanation with quotations from law professors.

Related Posts:
Absurdity Defined
The "All You Can Eat" Reconciliation Buffet
Pick Up The Phone

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  1. They will stop at nothing to get their way. The question now is, how far will We the People be willing to go to stop them?

  2. We will go all the way with every (non-violent) means at our disposal to stop/repeal this. While I have faith in people like Paul Ryan, John Thune and Scott Brown, I don't believe that other GOP leaders (yes, I'm looking at you Mr. Graham) have the spine to do what is necessary to save our liberties. That means that it will be up to us and our allies in the House and people like Mrs. Malkin and Professor Jacobson to help continue our fight even if this monstrosity passes.

    I do agree with Michelle Bachmann; if this bill passes via the Slaughterhouse Rule, we should not in any way comply.

  3. JMM, it depends on whether or not American Idol is on.

  4. To me it is a good example of the theory of the constitution as a living document. Most people seem to think that only the judicial branch enjoys such thoughts.

    The only check on this Rule (as opposed to a law or amendment) is the next change in government or the judicial branch, when it gets there.

    The only thing standing in the way of Democrats are their own conscience from external and internal pressure and more formally nine judges.

    I'm hoping the old dead Constitution I have understood through the years is like a Zombie and will return to defeat this monster.

  5. The question is: Are Republicans prepared to challenge the constitutionality of this legislation in court should it pass?

  6. If they're planning on passing HCR without voting on it, then what do you think they're taking whipcounts for? I mean, really. I've seen some talking points that stretch things, but this really takes the cake.

  7. This violation of the US Constitution is tyranny. Criminal tyranny.

    "Slaughter House Rule" and "Deem-and-Pass" (read: "Demon Pass") are NOT Constitutional, per Article 1 Sec. 7, which clearly states that A Bill must be VOTED on by BOTH houses, and that a roll call VOTE with names recorded is to be done by BOTH houses on the IDENTICAL Bill before the President signs it into Law.

    Slaughter, as Rules Committee Chair, and Pelosi, as Speaker of the House, violate their oath to the US Constitution by creating and supporting this "rule" to circumvent the Constitution to avoid the House voting on this Bill. Outrageous!

    Remove them from office!! And - don't wait until November! These people are tyrants, criminal tyrants!!

  8. They're not very confident that they'll have the votes to pass this thing in the House, that's why they are preparing the Slaughter House Rule. Desperately, they're trying to work both ends because they are so near the finish line and, like an exhausted runner who collapsed miles back before he could cross it, they're gasping for air while they claw and drag themselves on the ground doing anything to survive and convince themselves that they're really winning.

  9. Mandating health care MAY be a game changer. But see HotAir

    They provide this citation from a decision made in a suit brought by Ralph Nader:

    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).

    I'm out of my league here - take it away attorneys.

  10. While I'm happy to use anything that can be used to deep six Obamacare, I'm struggling to see how this is unconstitutional. The Constitution requires bicameralism and presentment. The Senate has voted on this bill, and the President will presumably sign it, so the issue is the House.

    Under the Slaughter rule procedure—at least as I understand it—there will be a vote in the House, and everyone will understand that it is the vote on the Senate Obamacare bill. The only difference between this and a "normal" vote is that the vote will be called a vote on the rule rather than a vote on the bill, and the vote will be for two measures at once. I'm not sure that these distinctions suffice to make the vote unconstitutional, at least not so clearly so as to engender court intervention (even setting aside the enrolled bill rule hurdle). I could see a member of Congress basing a vote against the rule on Constitutional objections, but it seems much closer—a question of labels rather than of substance—than folks seem to be assuming.

    I suppose that the real issue here is whether the House can vote on two bills in a single vote, rather than the precise form (voting for them via the proxy of a "self executing rule" rather than directly) taken by that vote. But even then, the precise Constitutional issue escapes me. So long as the House votes on a bill, and understands that it is voting on a bill, Article 1 § 7 would seem to be satisfied.

  11. Sam, that's a tempest in a teapot. Tapscott has simply misread the case, and Ed doesn't seem to have read it at all. Public Citizen had nothing to do with a self-executing rule. It was a case arising from the House and Senate passing slightly different versions of the same bill, not the process by which the House passed it.

  12. What part of "the Bill has already passed" does anyone here understand? Plus just last week you guys were saying that the Constitution allowed for Congress to make its own rules (when it something you wanted done.) The hypocrisy is very few young people respect you old conservatives. We see through this, this Constitution by convenience.

  13. DINORightMarie said...
    "Article 1 Sec. 7 … clearly states that … a roll call VOTE with names recorded is to be done by BOTH houses on the IDENTICAL Bill before the President signs it into Law."

    Art. 1 § 7 requires no such thing in terms, and Art. 1 § 5 forecloses any such inference. If section 7 required a recorded roll call vote, section 5's requirement that there be a recorded roll call vote on any given piece of the house's business at the request of one fifth of the members would be nugatory.

  14. Trackback: http://republicanheretic.wordpress.com/2010/03/16/the-slaughter-solution-obamacare-and-constitutionality/

  15. HotAir.com explains why we won't win in court on the Slaughter Rule:

    ...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.

    "Guess who opposed the Slaughter Rule in 2005?"

  16. lgstarr,

    If what you say is correct, what is to stop Pelosi, Obama and Reid circumventing Congress altogether?

    My guess is that if they use the Slaughterhouse Rule, Chief Justice Roberts et al will be only too happy to consider any case that challenges Obamacare

  17. Let me go out on a limb here and say that I doubt the Democrats are this stupid. I say that, of course, in a comparative sense, because they do very dumb things!

    But I just doubt they are going to try to adopt this legislation via a trick, at least one having such an enormous constitutional magnitude attached to it.

    The "beneficial" political consequence (passing the bill) from their point of view would be lost if a Federal District Court Judge did take jurisdiction and ruled against them, noting that this porcess did not result from some minor error, or a minor change entered into, such as following a conference process, but that it was by their own admission an open effort, as was said by the Speaker herself, to avoid the clear constitutional requirement of Article I, § 7 that the bill pass both the house and the senate.

    She said so in her quote in the Washington Post article the Professor linked above:

    "But I like it," she said, "because people don't have to vote on the Senate bill."

    In other words, Pelosi has openly admitted she wants to use the process because it allows all the members of her conference to avoid performing an express constitutional duty! To "do" reconciliation they must pass the Senate Bill and it must be signed, according to the parliamentarian.

    So if anything, she herself stuck the dagger in the heart of this "Slaughter rule" ploy when she said that.

    No, this has all the earmarks of a diversion to draw attention to some other idea their leadership has in mind.

    Maybe I'm giving her too much credit, but I suspect Speaker Pelosi trotted it out there for that reason -- to draw the focus of attention temporarily to something they do not really intend to do.

    I think it is "chum in the water" intended to provoke a feeding flurry, one that will be set aside at the last second in favor of some other strategy . . . the real hook!

  18. I offer this timely reminder/excerpt from The Declaration of Independence:

    ...That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    This new batch of home-grown tyrants need to be reminded thus...

    They govern by consent. Period.

    I like to start a recall of of these offices like what they are threatening with Robert Menendez (D-NJ)...

    NJ Tea Party strikes back at Senator Menendez for supporting Obamacare

  19. The last time I saw such an unrelenting desire to engage in self-immolation was during the 60's when Buddhist monks in Vietnam had a burning desire to turn themselves into bags of Kingsford.

    The 3rd Reich had a better chance to survive when the Russians surrounded Berlin.

  20. Suppose that the bill passed by this slaughterhouse rule and the pres signed it, but the reconciliation failed. Suppose further that in November the Congress flips both houses to the republicans and that each chamber then enacts a resolution saying the previously passed slaughterhouse bill was in violation of the rules of the House and thus is deemed disenrolled under the Marshall Field guideline.
    Under what standard of deference could the Courts then rule the bill to be valid and enforceable?

  21. For those who are depending on the "fact" that "It's unconstitutional to ram this through without a vote", please see:

    "The Slaughter Solution Will Probably Pass Constitutional Muster"



    Both articles point out that the Court will NOT willingly wade into an argument about HOW legislation was done. If the process is complete (The House Leader certifies it passed, the Senate leader certifies it passed, and the President signed it) it's a virtual certainty that the Supreme Court will allow the law to stand.


  22. Ed Morrissey at HotAir has linked to and quoted extensively from Michael E. McConnell's piece in the Wall Street Journal claiming that the employment of the "Slaughter rule" would be unconstitutional.

    He also cites Andy McCarthy's opinion in NRO that the abuse inherent in the Democrats' threatening to use past precedent in "policy review" cases as a basis for intentionally employing the trick passing a huge health care bill would be seen as undermining the legitimacy of the constitutional process.

    Notice that there are not a lot of Democrats out there backing up the Speaker on this one!

    Imagine explaining that one at a Town Hall meeting with your constituents?

    "Well, I thought the Speaker's strategy of employing a sneaky trick to get the bill passed was a really good idea! So, I supported her on that."

    The more they make it clear they don't have the votes without employing such a questionable trick, the less likely that it would be upheld if challenged because it makes it clear they were intentionally skirting the constitutional process mandated by Article I, § 7 that the bill pass both houses.

    That is why I think the Democrats must have some other gambit in mind, and that this is only a diversion.

    Either that, or they are suicidal.

  23. Showbiz111, at that point, nothing would happen, because the bill will have been enacted, and "repeal of statutes, no less than enactment, must conform with Art. I." INS v. Chadha, 462 U.S. 919, 954 (1983); Clinton v. New York, 524 U.S. 417 (1998).

  24. This is not a 'fiscally neutral discussion'. The health insurance industry is being ripped to bits while the facists discuss how/when they will take over. Damage done. Thank you Obama, Pelosi, Reid, etc.

  25. Can we force them to pay back, out of their own pockets, to recompense the Health insurance industry?

    Of course not. So all our premiums go up, and they created the crisis, that demands their solution.


  26. Protest Slaughter Rule:

    No Vote No Census


  27. This Post's caption is an excellent play on words.
    But I'm not sure how the rule works. Is the House acceptance of the Senate Bill conditioned on the Senate passing the reconciliation package, or is the Senate Obamacare deemed passed regardless of whether the Senate passes the House revisions?

  28. Mark, the House's acceptance of the Senate bill is conditional on the House passing the reconciliation package. At that point, as you say, "the Senate Obamacare deemed passed regardless of whether the Senate passes the House revisions."

    I agree with "A_Nonny_Mouse" that this isn't a question that the court is likely to want to take on, but if I had to brief the case, I would point to Munoz-Flores of an example of the enrolled bill rule's outer limits. The court has peeled back the veil and looked at process questions, at least when the issue was fairly clear. Even then, however, you have to get past the presumption of constitutionality, and I suspect that a case challenging Obamacare on these grounds is likely to end up in that graveyard. There are other, stronger challenges to the statute.

  29. We are Americans, not European, not Chinese, not Russians. We don't have a thousand years of indentured servitude baked into our DNA. Our nation was built on dreams and free will. No poor public education or generational welfare will change that, it may slow it down, but it will not stop the fact we are a free people, by creed and by history.

    The progressives have done a good job, but sooner or later, the free ride will stop and people will wake up. If Obamacare passes, we boot the "yes" people out of office. Then we support the state representatives who pass laws refusing to accept Obamacare at the state level (there is plenty of court arguments here). If the states fail then it will be up to us to refuse to comply. Our history is filled with examples of bad laws falling by the wayside because the people revolted against them.

    The question will be how violent the feds will become to force submission. Will they fine, arrest or jail us? And if comes to that, what will we do?

    Read the book- (www.revoltthebook.com) for one possible outcome.

  30. Concern over the employment of the "Slaughterhouse Rule" may be cutting, at least in some areas.

    For example, Democrats trying to wrangle votes for passage of the Senate Bill cannot be happy with Democrat Congressman Jason Altmire of Pennsylvania's historic 4th District, currently a suburban and rural district lying north and east of Pittsburgh.

    The Congressman has openly conceded that one of the things he hears most about from his constituents is their unhappiness with the process, telling Fox News that, in general, they do not like the "reconciliation" process, and with regard to a specific question on the "Slaughterhouse Rule" itself, Atmire said that, as for "the self-implementing rule that you're talking about, where you wouldn't have a formal vote on maybe the most important policy of the past forty years, I have a big issue with the way they're doing the process. I think it's wrong and my constituents don't like it."

    RollCall actually reports that Senator Blanche Lincoln, (D-Arkansas) is using the issue politically against her primary opponent, challenging Lt. Gov. Bill Halter to join her in criticizing the maneuver, noting that he had called for "more accountability in Washington" and adding that " the House should vote on the Senate health bill under normal rules."

  31. Thanks for the reply Simon. Nice blog (www.stubbornfacts.us). I wonder if Speaker Pelosi will refrain from endorsing the Senate Bill as "passed" until the Senate acts on the revisions. Can't she postpone the formality of indicating it as passed and thus block it from reaching the President's desk until the revisions bill is acted upon?

  32. Fascinating, isn't it how the leaders of the Democrat Party say they think, as compared with how they really act?

    Seems to me there is frequently a real disconnect.

    For example, they say they consider one of their top legislative initiatives to be the elimination of the secret ballot for rank-and-file union members -- the "card-check" legislation. Now, they obviously take that position in order to help solidify the power of union leadership to control voting.

    Yet, the Speaker and Hoyer also now favor the use of a highly controversial "secret ballot" maneuver, one which would allow members of the Democrat caucus in Congress to avoid casting an up-or-down vote on the Senate healthcare bill altogether, one which they need to pass, but which the Speaker acknowledges, many of the House Democrat members do not want to actually vote for.

    So, Nancy says it should be "secret ballot" time for Members of the House!

    "But I like it," she said, "because people don't have to vote on the Senate bill."

    Gee . . . it rings kind of hollow whenever they claim they are for the average guy, doesn't it?

    In fact, the only way I can think of to reconcile the two -- and, heck throw in healthcare bill too -- is to describe it all as "trickle-down control."