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Slaughter Solution Violates Nondelegation Doctrine

By: AndrewHyman (Diary)  |  March 13th, 2010 at 01:56 PM  | 

RESIZE: AAA

The House is considering whether to have a single vote on two bills at once: (1) the Senate Health Care Bill and (2) the Reconciliation Bill.

The two bills that the House is now contemplating directly contradict each other. For example, one says that Nebraska gets the “Cornhusker Kickback” and the other says Nebraska does not get the “Cornhusker Kickback.”

I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter to pick which meaning they like best.

Congress could use the same approach to allow a line-item veto, by passing a thousand budgets instead of one, and letting the President pick whichever one he likes best.  And that would also violate the nondelegation doctrine.

UPDATE (3/14/2010): Just to clarify, I’m skeptical that the judiciary would get involved based on this nondelegation argument, even though I think it’s a correct argument.  On the other hand, I do believe that the judiciary might very well get involved based on the following constitutional provision:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him…

So, if the House votes on two bills at once, the President must approve that vote “before the same shall take effect,” because the vote at least partially requires the Senate’s concurrence.  The President cannot pick and choose which part of the House vote to approve, and the House vote cannot have any effect unless the President approves it.

The framers saw all this coming.  You can read about it here in the Heritage Guide to the Constitution.

UPDATE #2 (3/14/2010): Former US Circuit Judge Michael McConnell has weighed in with an opinion piece in the Wall Street Journal arguing that the Slaughter Solution is unconstitutional.

UPDATE #3 (3/16/2010): Several more constitutional scholars are voicing doubts about the Slaughter Solution.  I have yet to hear about any precedent in the entire history of the United States for the Slaughter solution: the House votes for two bills in a single vote, only one of which is approved by the Senate, and the President signs that one bill into law.

COMMENTS

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  • Viet71

    adhere to the Constitution in terms of certain of its procedures.

    In Powell v. McCormack (1969), the Court held the House could not refuse to seat a duly elected member who met the constitutional requirements for being elected to the House. The Court specifically held the challenge brought by Adam Clayton Powell did NOT involve a nonjusticiable political question.

    • AndrewHyman

      True, but the Court has always seemed a lot more concerned about interbranch delegation than intrabranch delegation. Interbranch delegation jeopardizes the separation of powers, whereas intrabranch delegation jeopardizes things like bicameralism, so they’re both very important in my book.

  • reverelth

    I don’t think it’s over the top to mention Slaughter Solution and Obama’s impeachment in the same breath. If enacting laws passed in definance of the Constitution does not represent Presidential malfeansance, than what does?

    • Achance

      It makes us look stupid!

  • David123

    In accordance with the rules, the House votes on the Senate bill verbatim – and it loses; this is the prefered outcome of all Republicans, pro-life Democrats, and Democrats who disagree with the Senate bill for some other reason. Republicans/conservatives win

    In accordance with the rules, the House votes on the Senate bill verbatim – and it passes; this is the prefered outcome of most Democrats, but maybe not enough to pass it. However, if HCR is enacted this way, it will have been enacted properly [although mistakenly]. Democrats and leftists win

    In accordance with the rules, the House passes a different bill – and it goes to conference where differences between the house and senate bills are ironed out. Tie: under this option HCR can be fillibustered for a looooong time, so nothing gets passed for a looooong time.

    The House passes a different bill than the Senate AND SENDS IT TO THE PRESIDENT WITHOUT CONFERENCE. This is not in accordance with the RULES [ie the Constitution], The Democrats/leftists CHEAT. This is probably the worst possible outcome for Democrats and leftists – because the whole thing will get thrown out as Unconstitutional. And instead of “I WON” the slogan will be “I CHEATED”. Opponents of this form of HCR will not like losing a fair vote, but they will be furious at losing an unfair, unconstitutional vote.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    grounds upon which to strike down obamacare in addition to the violation of the rule requiring yay/ney votes in a journal.

  • JadedByPolitics

    WE The People are here to block them at EVERY TURN! They think they are smart and WE The People are here to remind them that the Founders were SMARTER! Bring it you liberal POS’s & WE will work day and night to rid this country of Constitution breaking Democrats, they can go home to listen to their Constituents tell them how ashamed of them they are!

  • AndrewHyman

    I doubt that SCOTUS would get involved based on nondelegation, because it’s only the action of one house, rather than the action of both houses of Congress. After all, SCOTUS often strikes down statutes, but not mere bills that are yet to be enacted.

    All the same, I do think it’s unconstitutional for the House to pass multiple contradictory bills at the same time. Certainly it’s a lousy way to legislate.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    I’m not so sure, esp given that the mandates can be cured by calling them what they really are: taxes under the 16th amendment.

    What do you think is the liklihood that SCOTUS strikes down any of ObamaCare and on what grounds?

  • AndrewHyman

    I think SCOTUS might be more likely to get involved based on a constitutional provision that no one has been talking about yet:

    Every order, resolution, or vote to which the concurrence of the House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States, and before the same shall take effect, shall be approved by him….

    If the House takes a ?vote? for both the Reconciliation Bill and the Health Care Bill at the same time, then this ?vote? cannot take effect without the President?s approval. Thus, even if the President approves the Health Care Bill, the Health Care Bill cannot take effect unless the President also approves the Reconciliation Bill that the House voted on simultaneously. And, the President cannot approve the Reconciliation Bill unless the Senate passes it verbatim. Conclusion: if the House takes a simultaneous vote on the Health Care Bill and the Reconciliation Bill, then the Health Care Bill cannot take effect unless the Senate approves the Reconciliation Bill verbatim.

  • Menlo

    The “mandate” in the senate bill isn’t really a “tax” since they can take your property or put you in jail for failure to pay.

  • Viet71

    The tax imposed under Amendment XVI is based on one’s income…is a function of one’s income.

    As I understand the mandates, they will be the same regardless of income (i.e., they will be determined without regard to income). Only the subsidies will depend on income.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • AndrewHyman

    I slightly flubbed the quote:

    Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him….

    I left out “Senate.” That doesn’t affect my analysis at all, though.

  • avgjo

    Thanks!