Yesterday, Speaker of the House Nancy Pelosi (D-CA) endorsed the rumored Slaughter Rule to send the Senate passed Obamacare bill to the President without a direct up-or-down vote in the House. Don’t believe those on the left who are trying to argue that because Republicans used deeming resolutions when they were in power, it is ok for Democrats to use a similar tactic to pass legislation without a vote.
Under this procedure, the House would vote on a rule setting up debate. The House would then skip a vote on the Senate passed version of Obamacare and move directly to a vote on reconciliation amendments to that Senate passed bill. If reconciliation passes, then the House will deem the Senate bill to have passed the House without a direct vote. As Michael McConnell wrote yesterday in the Wall Street Journal, this is yet another reason Obamacare would be unconstitutional.
Pelosi explained the need for this procedure yesterday: “I like it, because people don’t have to vote on the Senate bill.” Many Democrats could vote for the rule and claim that they are against the Senate bill.
A Wall Street Journal Op Ed today, points out that this procedure is unprecedented because never before has Congress passed a comprehensive reform bill using this tactic:
As Stanford law professor Michael McConnell pointed out in these pages yesterday, “The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form.” If Congress can now decide that the House can vote for one bill and the Senate can vote for another, and the final result can be some arbitrary hybrid, then we have abandoned one of Madison’s core checks and balances. Yes, self-executing rules have been used in the past, but as the Congressional Research Service put it in a 2006 paper, “Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills.” They’ve also been used for amendments such as to a 1998 bill that “would have permitted the CIA to offer employees an early-out retirement program”—but never before to elide a vote on the entire fundamental legislation.
Article 1, Section 7 of the U.S. Constitution states, “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States.” If the House does not have a direct vote on the legislation, this seems to be a violation of the explicit language of the Constitution.
Many on the left are relying on a Congressional Research Service Report (CRS) for the proposition that the Slaughter Rule has been used on numerous occasions. According to CRS, self-executing rules are a “two for one” that describes “when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up.” Now many times this has happened to incorporate amendments before a bill receives an up or down vote or it can be used to get a bill to conference.
The self-executing rule can be used to deal with bills containing amendments added by the Senate. The CRS report cites a few examples of self-executing rules to “enact significant substantive and sometimes controversial propositions.” The first example CRS identifies is that “on August 2, 1989, the House adopted a rule (H.Res. 221) that automatically incorporated into the text of the bill made in order for consideration a provision that prohibited smoking on domestic airline flights of two hours or less duration.” The legislation to prohibit smoking on domestic flights was made part of another bill, then that other bill received a vote. This is very different, because the health care reconciliation measure will not be incorporated into the Senate passed version of Obamacare and the reconciliation measure will be sent to the Senate for separate consideration.
Speaker of the House Nancy Pelosi and other House leaders are readying the Slaughter Rule and the American people should watch this process closely. The left will try to say that because Republicans have done it in the past, then they can do the same. The Constitutional question is on the table and there is no direct precedent for the House to pass a reconciliation measure which deems a massive health care bill to have passed without a direct vote.
On December 25th there was a clear failure to connect the dots that could have prevented Umar Farouk Abdulmutallab from boarding a plane bound for the U.S with a bomb strapped to his body. However, as explained last week at Heritage by former Homeland Security Advisor, the Hon. Kenneth Wainstein, the U.S. would not have even been in the position to try and piece together this intelligence information before the Patriot Act lowered the walls between intelligence and law enforcement.
Immediately after 9/11, intelligence operators realized that they possessed too small of a tool shed to effectively fight terrorism. As Mr. Wainstein explained, Congress can take a lot of credit for responding with the 2001 passage of the Patriot Act and subsequent amendments of the Foreign Intelligence Surveillance Act (FISA). Yet, there is no way to say that the intelligence and law enforcement community have every tool they need, because the terrorist threat is evolving every day. Add to this fact that criminal investigators often have more powers than national security investigators, due to historic fears of abuse of authority and lack of sufficient oversight, and the result is that in many cases the U.S. is fighting terrorism with one hand behind our backs.
Now, many of the tools created in response to 9/11 are beginning to weaken even further. For example, on February 28th three key provisions of the Patriot Act are due to expire following a 60-day extension. To avoid another 9/11 or other tragedy Mr. Wainstein suggests several legislative proposals such as making these key provisions permanent. Fighting the long war against terrorism truly demands a “Time for Certainty in Counterterrorism Policies.”