From the diaries by Erick
Lefty pundits nationwide are currently dismissing GOP objections against the Democratic “deem and pass” health care strategy, on the ground that the GOP has itself used “deem and pass” for many years. Robert Schlesinger, opinion editor at U.S. News and World Report, writes:
The GOP used self-executing rules [i.e. “deem and pass”] 35 times in 2005-2006 alone (the last time the Republicans ran the House). Back then Democrats sued to end the practice and the GOP defended it in court. Ornstein asks: “Is there no shame any more?” Well … no.
It’s true that the GOP has used “deem and pass” before. Big deal. I’ve used a gun before, but that doesn’t mean I fired it like the maniac from Fort Hood. When the GOP used “deem and pass,” that was done legitimately. In contrast, the imminent “Slaughter Solution” would use “deem and pass” in a completely unconstitutional manner.
Democrats cite the GOP’s use of the so-called “Gephardt Rule” as precedent for the Slaughter Solution. In a nutshell, here’s how the Gephardt Rule works. There is only one legislative measure according to the Gephardt Rule: a joint resolution. Yes, folks, a joint resolution can be passed by both houses and be signed by the president, and then it has the force of law. According to the Gephardt Rule, the joint resolution is generated as follows: the House takes a single vote that passes both a (non-legislative) continuing resolution in addition to the (legislative) joint resolution, although the joint resolution is merely “deemed” to have passed instead of passed explicitly. The joint resolution then goes to the Senate. If the Senate approves, the President signs the joint resolution, and it thus becomes law. Everything is perfectly constitutional, though a bit dodgy.
Contrast the Slaughter Solution which involves approval of not one but two legislative measures in a single vote. In that single vote, the House approves a Reconciliation Bill explicitly, while implicitly deeming that the Health Care Bill has passed too. Maybe that’s not so bad, but what happens next is much worse. The president would then sign the Health Care Bill, without signing the Reconciliation Bill that the House had just explicitly voted for.
According to the Gephardt Rule, all of the legislative stuff that the House votes for is approved verbatim by the Senate and signed by the President. But according to the Slaughter Solution, only some of the legislative stuff that the House votes for becomes law, while the rest dangles in legislative limbo. That is a flagrant violation of Article I, Section 7 of the Constitution, not to mention the Court’s interpretation of Article I, Section 7 in the case of Clinton v. New York.
In summary, “deem and pass” may not be such a stinky strategy, especially for minor bills. But Obamacare is no minor bill. More importantly, It’s the unconstitutional way that Dems want to use “deem and pass” that is stinking up the place.
And the bottom line is this: as far as I know, never in U.S. history have two bills been approved simultaneously by a single House vote, with one of those bills then going to the Senate and the other going to the President for signature. Certainly, never in U.S. history have two bills been approved simultaneously by a single House vote, where the bill going to the President was intended to be amended by the bill going to the Senate. Such schemes are unconstitutional, and allow the House to speak with a forked tongue. The President cannot constitutionally approve only part of the legislation that the House votes for; he must approve all or nothing.