Various conservative scholars and legislators are lining up to file suit if the health bill passes on a “self-executing” rule. As I stated earlier, I believe the tactic violates the principles of good government but not the Constitution. However, this could be an interesting challenge and could raise a couple of novel questions. I will be discussing this issue on tonight’s Countdown.
To get to the legal issues, one has to first strip away the deep layers of hypocrisy from both parties. First, the Democrats long condemned this tactic when used by the Republicans and the use of a self-executing rule in this case is a transparent effort to avoid accountability. Indeed, in a remarkably frank and self-defeating statement, Speaker Pelosi praised the tactic as a way for members to avoid voting directly on the unpopular Senate bill. It is not enough for Democrats to say that “there is no other way to get this done.” In our system it is often as important how you do something as what you do. This is the wrong way to pass this bill and Democrats should have the integrity to condemn the tactic with the same conviction as when it was used by the Republicans.
Second, the disgust expressed by the GOP is equally transparent and hypocritical. Republicans used this tactic over three dozen times when they were in control of the House. It did not seem to offend their sensibilities back then or beckon the arrival of tyranny. Moreover, while usually used for less important measures, it has been used on substantial legislation ranging from its first use in dealing with creditworthiness in the Depression to the line-item veto to the recent Family Medical Leave Act.
Putting aside the super-heated rhetoric, there is an interesting constitutional question. Article I, Section 7 states:
“ Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
The use of a self-executing rule has been used dozens of times, including 49 times in the last session. However, only a handful of final bills have passed by this approach — as opposed to resolutions or legislation at an early stage.
The fact that the deem and pass tactic has been used for decades does not mean that the Court could not declare it to be unconstitutional. Yet, Article I does not clearly define what constitutes the necessary vote by each house. The members will enter yeas and nays on the reforms and language adopting the Senate bill. The courts are highly deferential to Congress in setting its own internal rules and procedures. In 1892, the Court held in Marshall Field and Co. v. Clark 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.’” However, the Supreme Court also (in a later decision) stated that, while deferential, it still retains the authority to “to review the constitutionality of congressional enactments.”
The challenge, however, would first have to establish standing by picking litigants with a cognizable injury — a question that will be challenged by the Democrats.
This proved a problem in a challenge to the Deficit Reduction Act of 2005 when the Republicans brushed over a clear conflict between the House and Senate versions — the House allowing Medicare payments for 36 months and the Senate version allowing 13 months. Democrats challenged that it was not the same language as required under Article I, Section 7, but lost in court.
The GOP would ironically rely on a prior loss before the Court; the 1998 decision in Clinton v. New York striking down the Line Item Veto Act as unconstitutional. In 1983, INS v. Chadha, the Court struck down a law that permitted a single house of Congress to nullify certain regulatory decisions. In 1988, in Clinton v. City of New York, dealt with the variation on this theme with the delegation of power by Congress to the president. In both cases, the Court emphasized the need for procedural correctness in Congress. Justice John Paul Stevens wrote that each house has to approve the same text and the bill must receive a presidential signature.
The weight of these decisions favors the Democrats on the “deem and pass” tactic.
The Senate, however, could prove a serious problem. The GOP would need to find a single line in this lengthy bill that would call for a parliamentary ruling. The Senate bill would have to be identical to the House or risk being sent back to the House. If the Parliamentarian ruled for the GOP, the only way to avoid the meltdown would be for Vice President Joe Biden to overrule the Parliamentarian. That would be viewed as even more controversial and inimical to good order than the deem and pass tactic.
For the full story, click here.
Ok, next…..
Prof Turley,
Thank you for your detailed description of this muddle. As one who spends his retirement confronting governmental hypocrisies, those problems are so overwhelmingly common that I doubt many of us will make a difference before we finally just give up the cause to protect our own sanity.
http://www.politico.com/news/stories/0310/34702.html
FFLEO,
I concur. Often when I don’t post for a day or two it is simply because I need a some time off from the news for my brain to cool down. The ever increasing bad news is enough to wear at even the most stoic of people. It is one of the reasons I look forward to Sundays here at our little salon, just to see what goodness the Prof has found to share from the animal kingdom.
By the way, great posts on Fess Parker. It’s sad to see him go, but I’ll have to say it seems like he lived his life on his own terms. Would that we all be so fortunate.
Nice job on Countdown, Professor. I thought your comments about how this bill could face major problems in the Senate was absolutely correct. It seems like the first health care bill redux. Those House Dems are gonna be sorry — again.
PS. I have to say, I really prefer O’Donnell to Olberman when I watch. He’s much more intellectual and practical, and much less bombastic.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and next oblige it to control itself.” —James Madison
Buddha,
Ol’ Fess took me back to the neat 1950s. Sure things were not perfect for all in society and we were dirt poor white folk. However, there was abundantly more honesty and civility then than now, where absurdity is the commonplace rule.
Parker was a success in everything he did.
I have to admit that I do not see the legal issue that Prof. Turley suggests. I can still remember Dick Cheney casting his tie breaking vote on an important bill during one of times the Republicans used the reconciliation rule. I do not see any difference in Biden overruling the parlimentarian. Now, that being said, I don’t necessarily agree with the need to use the Deem and Pass technique.
“The lawyer’s truth is not Truth, but consistency or a consistent expediency.”
~Henry David Thoreau
“That, if those who administer the General Government be permitted to transgress the limits fixed by the compact, by a total disregard to the delegations of power therein contained, an annihilation of the State Governments, and the erection upon their ruins of a general consolidated Government will be the inevitable consequence: that the principle and construction contended for by sundry of the State Legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the Government and not the constitution, would be the measure of their powers: that the several States who formed that instrument, being; sovereign and independent, have the unquestionable right to judge of its infraction: and that a nullification by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.” ~~Thomas Jefferson (The Kentucky Resolution)
I’m pretty sure this is James Madison.
“Necessity and expedience are the pleas of the tyrant”
Duh,
Who is this Thomas Jefferson character? I can’t find him in my Texas History book!
rafflaw,
Give the it a little more time. He always finds a way to make an appearance when we need him.
rafflaw,
As long as the Republicans are in charge of the school board of Texas they can rewrite history anyway they want.
So I am sure that Jefferson will have fought at Alamo I, not to be confused with “The Alamo.”
Here is the latest campaign lit.
Thomas Jefferson…Gone
Dear [Name Change],
Removing Thomas Jefferson from Texas textbook standards?
Tell Rick Perry it’s time to stop playing political games with our kids’ future.
Last week the Texas State Board of Education (SBOE), led by Rick Perry’s appointee, voted to remove Thomas Jefferson from social studies textbook standards. That’s right. Thomas Jefferson — Founding Father, author of the Declaration of Independence, and a world-renowned scholar who advocated democratic, limited government — was deleted from a list of historical figures who inspired political change.
Why?
Because Governor Rick Perry provided no leadership or voice for mainstream Texans against people who decided to substitute their political agenda for the judgment of professional historians.
If we want Texas to be a state of opportunity, we cannot let it become an object of ridicule.
Help me stop this. Please email Rick Perry today. Tell him our kids’ education is not a political game to be influenced by ideologues and partisan politics.
This is a pattern for Rick Perry.
Perry’s previous appointed chair of the SBOE openly bragged about allowing his extreme views to skew history textbooks. His antics as chair were so extreme that the Texas Senate refused to confirm him a second time, and he was recently defeated by Republican primary voters. Governor Perry’s current appointee as chair wanted Supreme Court Justice and civil rights pioneer Thurgood Marshall removed from a section on citizenship because he is “not particularly known for [his] citizenship.”
And under Perry’s appointed chair’s leadership, last week the board passed more than 100 amendments to Texas’ social studies textbook standards, without a single classroom teacher or historian in the discussions.
Tell Rick Perry you’ve had enough. It’s time to stop playing political games with our kids’ future.
I respect the sincerity of Texans who hold different views of what our students should and should not be taught. But we should have a governor who finds common ground and moves our state forward, rather than appeasing people intent on pursuing partisan agendas in public offices.
Thank you for helping me work for you, replacing a governor who works for his own political future with one who works for the future of all Texans.
Sincerely,
Bill White
P.S. Please forward this message to your friends, family, colleagues, and anyone you know with children in Texas’ public schools who will be affected by the SBOE’s new textbook standards.
E-mail Rick Perry
Contribute today
Pol. adv. paid for by Bill White
Duh:
”
I’m pretty sure this is James Madison.
“Necessity and expedience are the pleas of the tyrant”
*****************
That lien has a interesting genealogy. Actually it was James Buchanan who wrote those exact words,but it mimicked Madison’s sentiments very nicely. Buchanan said:
“The committee believe that it is the imperative duty of Congress to repeal, without delay, any of its acts in contravention of the Constitution, be the consequences what they may. If Congress had no power to pass such
laws, they are null and void, and ought not to remain on the statute book; if such be really necessary, the power that created the Constitution can and will amend it. Necessity and expedience are the pleas of the tyrant ; amendment, the dictate of the Constitution. By pursuing the former course, we trample upon the Constitution; by following the latter, we go back to the people, the original source of all power.” (1831)
Madison was a tad more eloquent:
“There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong”
Actually, I think Buchanan was quoting William Pitt the Younger in his speech to Parliament::
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” (1783)
To further muddle the mess, they both likely plagiarized Milton:
“”And with necessity, / The tyrant’s plea, / excus’d his devilish deeds”, John Milton, Paradise Lost, Book iv, line 393(1667)
Thanks Mespo! Original or echo, it seems to still ring true.
AY,
good luck with that campaign, but Perry and his fellow Republicans have no shame. To deny our true history for the crap that they are replacing it with is a cultural crime. There can be no respect for someone who thinks Calvin is more important than Jefferson. It is an intentional attempt to remove any reference to the separation of church and state.
Duh:
There is nothing new under the Sun.”
~Ecclesiastes 1:9
I found a response to the “Request for Assistance” posted by AY.
“State Board of Education Chairwoman Gail Lowe on Friday criticized some media outlets for reports indicating that Thomas Jefferson was dropped from the social studies curriculum standards tentatively approved by the State Board of Education last week. Lowe and other Republicans on the board – including the seven-member bloc of social conservatives – did vote to remove Jefferson from a world history standard that requires students to study great political thinkers such as John Locke and Thomas Hobbes.”
http://educationfrontblog.dallasnews.com/archives/2010/03/state-board-of-education-chair.html
I haven’t had a chance to look into it any deeper.
I guess I really should post the other two paragraphs. The quoted paragraph above, when left standing on its own, comes across as more of a ‘so what’ than an explaination.
Here’s the other two:
But, Lowe pointed out, Jefferson remains in the standards for U.S. history and government, and is second only to George Washington in the number of times his name is mentioned in the social studies standards. “To say that the State Board of Education has removed him (Jefferson) from the (curriculum standards) is inaccurate and irresponsible,” Lowe said in a news release. “No study of American history would be complete without his inclusion.”
“While Lowe said Jefferson’s placement in the world history standards was inappropriate, that position has been challenged by Democratic gubernatorial nominee Bill White and various groups, including the progressive Texas Freedom Network. “This isn’t a contest to see how many times someone is included in the standards,” said TFN President Kathy Miller. “The issue is why the board did not want students to learn that people struggling for freedom around the world have looked for more than two centuries to Thomas Jefferson and his ideals for inspiration.” The board is scheduled to resume debate on the social studies standards in May.
If deem and pass were found to be unconstitutional, would that mean that anything that had been passed using that strategy in the past would have to immediately be voided or ruled invalid due to the way in which the law came into being?
All of this reminds me that tomorrow is the last day of the 2010 Sunshine Week–March 14 through March 20, 2010–recognizing the FOIA, State Public Records Acts/Laws, and Open Meeting laws.
“Sunshine Week: Your Right to Know”
http://www.sunshineweek.org/
I am no constitutional lawyer, but I read that language as requirements for over-riding a presidential veto. I would see normal passage of a bill coming under Article 1, Section 5,
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”
“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”
Nice job on Countdown. Professor you need to be exposed to a wider audience. Unfortunately the TV ratings for Countdown, are no so good.
Olberman should have stuck with sports and I think MSNBC realizes that now, O’Donnell has done a good job in place of Olberman and as they say in sports, he’s outta there.
It was nice to see you mentioning the blog. The more you say, as I discuss on my blog, the more that will be coming. I’m sure you’ve noticed an uptick as of late.
P.S. Keep smiling
Sunshine, ain’t no sunshine FFLEO.
Just in case,those who missed tis last night:
http://www.msnbc.msn.com/id/3036677/#35957056
Professor Turley,
If the Republicans prevail in their legal challenge of ‘deem and pass’, please answer this rhetorical question: would the ruling also invalidate previous laws passed by other congresses? Or would it only invalidate laws passed by *Democratic* congresses?
Legal hermeneutics eh?
The interpretation of Art. I, Sec. 7 if done as usual, should follow the rules of “statutory interpretation”.
First there must be a determination as to whether or not the text is ambiguous.
That is determined by resolving whether reasonable persons could interpret it differently (more than one reasonable interpretation possible).
Another aspect close to that, is whether any reasonable interpretation would conclude wiht an absurd result.
In other words, yes it could mean thus and such, but that would be absurd, so the only textual interpretation to pass both aspects is the textual interpretation that is advanced by a reasonable person and which does not end up with an absurd result.
Art I. Sec. 7 refers to “Every bill which shall have passed the House of Representatives and the Senate” going to the president for signature or veto [This is not ambiguous because it is subject to only one reasonable interpretation].
Next comes “if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated” which means there are two types of bills at this point: 1) those that become law by presidential approval; 2) those that do not (vetoed).
Those that are vetoed are returned to see if the veto can be overcome with a 2/3 majority vote thereby to become law anyway, over the prior veto of the president.
The controversial text is “But in all such cases …”, the interpretive controversy being does this apply only to vetoed bills, or does it apply to the “Every bill” text at the beginning of this Sec 7?
The result of applying it only to vetoed bills that face a 2/3 majority vote is that very, very few bills would have the vote of Senators and House members recorded.
That would seem to be an absurd result in a society claiming government should be open, and thus the voters should know how congress members vote on each and every bill so they may vote them out or return them depending on their votes.
If the courts do not, however, think that is an absurd result, they could use the pari materia rule of interpretation, as well as looking at who said what about Sec 7 during the constitutional convention, and see where that leads.
Deem and Pass has been abandoned by the democrats.
Thanks SM
I wonder if the Deem and Pass strategy was simply a ruse by the Dems to distract the Republicans?? That can’t be that smart, can they?
rafflaw Are you ready for Gov. Brady? You will think you are in Texas if he wins and he is leading in the polls.
Swarthmore Mom,
I know Brady is ultra-conservative, but he is not very well known in Northern Illinois. As of now, I would think Quinn may win, but it may depend on who is chosen for the Lt. Gov. spot.
rafflaw,
The First Klans group was sun off after the Civil War?
AY,
I am not sure I understand your post.
Sorry rafflaw,
The first Klan was founded in 1865 by a Tennessee veterans of the Confederate Army Nathan Bedford Forrest.
Catch this his Great Grandson went on the be none other than Nathan Bedford Forrest III (April 7, 1905 – June 13, 1943) a Brigadier General of the United States Army Air Forces.
That is a little scary! It is a little nuts that the KKK is still alive and well. You would think that the country would be past the discrimination, but if you read the tea baggers signs, you know that equality is a pipe dream.
The first Klan was founded in 1865 by a Tennessee veterans of the Confederate Army Nathan Bedford Forrest.
And is one of the reasons Jacksonville, Florida will, IMHO, will always have a black cloud hanging, pun intended, over it.
Nathan B Forest High School, Jacksonville, Florida.
Jacksonville has long been known for it’s racist overtones. It has consistently been THE highest murder rate per population/county the last ten years. It has a deep religious community mainly Baptist. Back in the seventies Jacksonville city theme was “The Bold New City of the South” but was like the Wild Wild West and in some respects, still is. We just had two students take a female student to a city park and both took turns firing single shots to her head. Victim has not readily identifiable at the crime scene. Jacksonville sucks.
There were calls for his name to be removed and calls for him to remain.
Nathan Bedford Forest High School has been embroiled in a push by many to change the name of the Jacksonville Florida facility. The Duval County School Board held a three hour hearing last night and then voted 5-2 to keep the name of the early Ku Klux Klan leader, who was Grand Wizard, first era.
Board held a three hour hearing last night.
That was Nov 4, 2008
Here’s one woman who stands in favor of the confederates from a historical perspective.
Jacksonville City Councilwoman Glorious Johnson Sets Precedent by Attending Confederate Memorial.
http://blackpoliticalthought.blogspot.com/2008/04/jacksonville-city-councilwoman-glorious.html
AY are you a civil war buff?
I enjoy reading and at present I am reading a book about all of the Leaders of the Civil War. I would suspect that High School is named after the General.
It is. Most people are unaware that North Florida was like the last strong hold for the confederates as they were pushed further south.
Battle of Olustee
http://americancivilwar.com/statepic/fl/fl005.html
Reenactment Every Year
Feb 13th – 14th at the Olustee Battlefield State Park.
http://www.olusteefestival.com/
Battle of St Johns Bluff
http://americancivilwar.com/statepic/fl/fl003.html
I grew up on St Johns Bluff Rd.
bdaman,
Most people could not name 7 states that were involved in the civil war. Yes, there were a number of decisive victory’s for the south and the north in Florida. The one that gets me is Fr Hood is named after a very good general from the civil war but had a number of problems.