Posted by MataHarley on 19 March, 2010 at 3:58 pm. 9 comments already!

The nation is promised “a vote” this weekend. What the media seems to miss is… a vote on what?

To make the issue more confusing, the House released 2309 pgs of HR 4872 over the past weekend, which, according to news accounts in the past days, had grown to 2409 pages with amendments. (Here’s the link on GovTrack.)

In a similarly baffling move, little of which was noted by an asleep at the wheel media, another HR 4872 bill, titled AMENDMENT IN THE NATURE OF A SUBSTITUTE TO H.R. 4872, AS REPORTED, followed by the language to “…Strike all after the enacting clause and insert the following: was released. This “substitute” HR 4872 is now 153 pages.

The “substitute” amendment HR 4872 appears to “fix” what is called “the Senate bill”… which is actually an amended version of House bill HR 3590 – the bill originally penned by that icon of ethics, Charles Rangel and introduced into Congress September of last year.

This means that for any elected representative to actually read what they are voting for… in some fashion… they have to bounce back and forth between the original Senate passed 2409 (what is it about that number??) pages to the 153 page “substitute” amendment/fix bill to figure out what’s going on in legislative text…

…. and oh, BTW, all within 72 hours.


Then, of course, there’s procedure of the proceedings. Is the House going to first vote on the Senate bill, and then vote for the “substitute” amendment bill?

Or is the House going to offer a Resolution that creates a Special Rule, amending the House Rules that becomes a self-executing rule, *then* vote on some version of HR 4872?

Excerpts from a CRS Report from 2006 (linked above):

Definition of “Self-Executing” Rule. One of the newer types is called a “self executing” rule; it embodies a “two-for-one” procedure. This means that 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. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision. It was automatically agreed to when the House passed the rule. Rules of this sort contain customary, or “boilerplate,” language, such as: “The amendment printed in [section 2 of this resolution or in part 1 of the report of the Committee on Rules accompanying this resolution] shall be considered as adopted in the House and in the Committee of the Whole.”

Traditional Use. Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills. As mentioned in the precedents (House Practice by Wm. Holmes Brown and Charles W. Johnson), self executing rules for these purposes eliminate “the need for a motion to dispose of the [Senate] amendment.” Brown and Johnson further state that such resolutions are sometimes called “hereby” special orders “because the House, in adopting the resolution as drafted, ‘hereby’ agrees to the disposition of the [Senate] amendment as proposed by that resolution. If the House adopts a resolution, no further action by the House is required. The [Senate] amendment is never before the House for separate consideration.” “Hereby” or self-executing rules have also been used to adopt concurrent resolutions correcting the enrollment of measures or to make other technical changes to legislation.

Either process requires two votes. One to accept the Senate bill as is, or to first vote for a House Rule change, followed by voting on some version of HR 4872.

While it’s unlikely Pelosi is apt to tip her strategic hand, the only recourse she has is to strive for the Resolution-Substitute Amendment vote. Using this method, the House actually votes for accepting the Senate amended HR 3590 as written, and without a guarantee the Senate will also accept the “substitute amendment” bill unchanged…. but can then say “I didn’t vote for the Senate bill… I voted for a Rule Change”.

What is the reality left is the Senate bill becomes law, and… as CRS states…. “….neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” [Added: Senate version of HR 3590] provision.”

Again, we return to a leap of faith by House Dems. That leap meaning that they suck it up and accept the Senate version as law – a bill that clearly they do not sanction – and “hope” for no “change” by the Senate in that fix it bill. Or worse yet, they reject the fixes.

Then there becomes the question… is any House Dem going to put their career on the line by dodging the vote on a bill they rejected by playing the House Rule game… hoping their constituents won’t notice? How many are willing to commit political seppuku with their party in order to pass health care they do not support? And if they do, what was their price?

It all depends upon the bribery, the payola offered, and the quality of spin designed to get them off the hook. One thing is certain… the population is paying attention. Passing off simple rule tricks is not going to be unnoticed.

BUT, BUT…. IT’S BEEN USED BEFORE, THE DEMS SAY

Naturally the rallying cry of protest from Dem talking points is how often the GOP has used the procedure of “deemed passed”, or the self executing rule, before. But for what on these occasions?

Two sources should give the intellectually curious some perspective. The first being the same CRS Report linked above, listing “contemporary use” examples as of 2006.

Examples from the Congressional
Record will illustrate:

* 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.

* On March 19, 1996, the House adopted a rule (H.Res. 384) thatincorporated a voluntary employee verification program — addressing the employment of illegal immigrants — into a committee substitute made in order as original text.

* H.Res. 239, agreed to on September 24, 1997, automatically incorporated into the base bill a provision to block the use of statistical sampling for the 2000 census until federal courts had an opportunity to rule on its constitutionality.

* A closed rule (H.Res. 303) on an IRS reform bill provided for automatic adoption of four amendments to the committee substitute made in order as original text. The rule was adopted on November 5, 1997, with bipartisan support.

* On May 7, 1998, an intelligence authorization bill was made in order by H.Res. 420. This self-executing rule dropped a section from the intelligence measure that would have permitted the CIA to offer their employees an early-out retirement program.

* On February 20, 2005, the House adopted H.Res. 75, which provided that a manager’s amendment dealing with immigration issues shall be considered as adopted in the House and in the Committee of the Whole and the bill (H.R. 418), as amended, shall be considered as the original bill for purposes of amendment.

On March 16th, James Dupree noted more precedents in his article, including incidents of both parties while in the majority dating back to 1933, 1948, as well as 17 incident between 2001 and this Congress.

None are tandamout to accepting such vast new, and expensive policy as this step process towards nationalized health care.

The most controversial was the self-executing rule used to correct errors between chamber bill texts on the Deficit Reduction Act of 2005. Since so many like Wiki here, you can take it for what you will. I suggest you give minimal consideration and primarily a quick overview of the events… ). In 2006, Henry Waxman wrote then minority leader, Pelosi, that the experts he consulted stated the passage of the law was unconstitutional, bypassing the Bicameral Clause of the U.S. Constitution.

My my how times change, yes? Those defending this process today sang a different tune just a few years ago. But what’s a political party to do when it’s your pet project at risk?

Several entities brought lawsuits challenging the law. Public Citizen, a legislative watchdog group, filed suit in US District Court for the District of Columbia. Attorney James Zeigler filed a similar suit in the United States District Court for the Southern District of Alabama. A case brought by an education finance company, OneSimpleLoan, is currently before the Supreme Court of the United States, Docket No. 07-492, on a petition for writ of certiorari to the Court of Appeals for the Second Circuit.

Representative John Conyers, ranking member of the House Judiciary Committee, and ten other members of the House of Representatives sued President Bush (see Conyers v. Bush), the Cabinet Secretaries, and others in an action in district court in Detroit; the case was dismissed on November 6, 2006, citing the representatives’ lack of standing.

Wiki is behind the times as the SCOTUS has ruled in the OneSimpleLoan case, part of which was challenging the constitutionality of the Deficit Reduction Act in 2005.

In all instances, the High Court upheld the circumstance of the bill’s passage using evidence that was officially printed and signed by the Speaker of the House, the President of the Senate, and the President as conclusive evidence that the bill passed. This observation is also referred to as the “Enrolled Bill Rule”.

Interestingly enough, during the DRA days, Columbia University’ David Sandler penned a paper advocating that it was time for the Enrolled Bill Rule options to go. Obviously were it as simple as just making sure there was a printed version, and having all three signatures, to enact law, the potential for legislative abuse in unquestionable.

But branches of power do not seek to usurp or intrude upon another branch’s power. And as Sandler notes the High Court observed the Constitution does not prescribe *how* to enact legislation, and that journal entries of yeas and nays were not a mandate of if a law was validly passed. In fact, in Marshall Field & Co. v Clark 143 U.S. 649 (1892), then Justice Harlan stated it was largely out of branch respect for such faith in the proceedings as being Constitutional.

As the president has no authority to approve a bill not passed by congress, an enrolled act . . . having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the
United States, carries on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the [content of the] act . . . is in conformity with the constitution.42

But as with all things SCOTUS, their arguments and opinions address only the specifics before them, and not sweeping generalities.

So the more pertinent question would be, is the task of SCOTUS to examine the Constitutionality of legislative proceedings? Or not? If Pelosi takes the path I’m guessing she will – voting for a Specialty Rule vis a vis a Resolution, and then the Amendment-Substitution bill and firmly entrenching the Senate version of O’healthcare as law – we’ll certainly be finding out.

THE LANDMARK LEGAL FOUNDATION
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

In addition to the myriad of lawsuits being prepped, as I posted on late December, a new one has emerged that specifically questions the proceedings of Congress, and it’s applicability to passage of such wide sweeping policy.

Landmark Legal Foundation and Constitutional attorney, Mark Levin, have a draft brief ready to file in event of passage via Special self-executing Rule. Titled a “Declaratory” and “Injunctive Relief”, it is a petition to the court to determine status of a matter involving the parties, without awarding damages, while the request for the “injunctive relief” is a request for the courts to require the parties to do, or not do action that may result in injustice. In this case, it would be a request to stay enactment of the bill until hearings and challenges are final.

Levin and his attorney on the brief, Arthur F. Fergenson of Ansa Assuncao, LLP in Maryland, are well aware that the “enrolled bill rule” is likely to be used as a defense. Saying, in essence, that their refusal to rule upon the constitutionality of such a procedure can allow Congress to basically use the Enrolled Bill Rule merely to shield themselves from judicial scrutiny… the antithesis to the Separation of Powers foundation.

31. The courts risk much in not acting in this case. For if the Enrolled Bill Rule were to block consideration of this deliberate adoption of a procedure to repeal the Bicameralism Clause, then the House and Senate will be free to adopt any such procedures in the future, assured that they will be immune from judicial review under any and all circumstances. After all, if the House can pass a rule that “deems approved” one measure on adoption of a separate measure and keep that maneuver from judicial scrutiny, then it, and its companion Chamber the Senate, can do anything. There can be no doubt that the day after a ruling in this case that no judicial review is permitted, the House and Senate would be free to adopt as procedures a lineitem veto through use of multiple enrollments of unitary appropriations bills, deeming every item in the bill as a separate bill. See, e.g., Gressman, Observation: Is the Item Veto Constitutional?, 64 N. Car. L. Rev. 819 (1986). Everything about the House’s action invites chaos: economic, political, and constitutional. Under the specific facts presented here, the Congress has forfeited any claim to judicial deference.

Landmark’s brief does cite Clinton v the City of New York, which struck down Clinton’s line item veto act from the middle 90s, and Marshall Field (linked above), as well as INS v Chadha in 1983, which questioned whether an Act of Congress to deport Chadha was a constitutional action.

Chadha was battling deportation demands. He applied for suspension of the deportation order and, after a hearing, an Immigration Judge acting on behalf of the AG granted the suspension. The House then passed a Resolution, vetoing the suspension. Then….

Chadha moved to terminate the proceedings on the ground that 244(c)(2) is unconstitutional, but the judge held that he had no authority to rule on its constitutionality and ordered Chadha deported pursuant to the House Resolution. Chadha’s appeal to the Board of Immigration Appeals was dismissed, the Board also holding that it had no power to declare 244(c)(2) unconstitutional.

Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that 244(c)(2) is unconstitutional. The Court of Appeals held that 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution. [462 U.S. 919, 920]

The Supreme’s agreed with the Appellate… saying:

1. This Court has jurisdiction to entertain the INS’s appeal in No. 80-1832 under 28 U.S.C. 1252, which provides that “[a]ny party” may appeal to the Supreme Court from a judgment of “any court of the United States” holding an Act of Congress unconstitutional in “any civil action, suit, or proceeding” to which the United States or any of its agencies is a party. A court of appeals is “a court of the United States” for purposes of 1252, the proceeding below was a “civil action, suit, or proceeding,” the INS is an agency of the United States and was a party to the proceeding below, and the judgment below held an Act of Congress unconstitutional. Moreover, for purposes of deciding whether the INS was “any party” within the grant of appellate jurisdiction in 1252, the INS was sufficiently aggrieved by the Court of Appeals’ decision prohibiting it from taking action it would otherwise take. An agency’s status as an aggrieved party under 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. Pp. 929-931.

A suit not mentioned by the Landmark draft brief is an opinion when the High Court did use additional scrutiny to verify the validity of a bill’s passage by consulting the journal in US v Ballin 144 U.S. 1 (1892). From Justice Brewer writing the majority opinion:

Two questions only are presented: First, was the act of May 9, 1890, legally passed? and, second, what is its meaning? The first is the important question. The enrolled bill is found in the proper office, that of the secretary of state, authenticated and approved in the customary and legal form. There is nothing on the face of it to suggest any invalidity. Is there anything in the facts diselosed by the journal of the house, as found by the general appraisers, which vitiates it? We are not unmindful of the general observations found in Gardner v. Collector, 6 Wall. 499, 511, ‘that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial nind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.’ And we have at the present term, in the case of Field v. Clark, 12 Sup. Ct. Rep. 495, had occasion to consider the subject of an appeal to the [144 U.S. 1, 4] journal in a disputed matter of this nature. It is unnecessary to add anything here to that general discussion. The constitution (art. 1, 5) provides that ‘each house shall keep a journal of its proceedings;’ and that ‘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.’ Assuming that by reason of this latter clause reference may be had to the journal, to see whether the yeas and nays were ordered, and, if so, what was the vote disclosed thereby; and assuming, though without deciding, that the facts which the constitution requires to be placed on the journal may be appealed to on the question whether a law has been legally enacted, yet, if reference may be had to such journal, it must be assumed to speak the truth. It cannot be that we can refer to the journal for the purpose of impeaching a statute properly authenticated and approved, and then supplement and strengthen that impeachment by parol evidence that the facts stated on the journal are not true, or that other facts existed which, if stated on the journal, would give force to the impeachment. If it be suggested that the speaker might have made a mistake as to some one or more of these 74 members, or that the clerk may have falsified the journal in entering therein a record of their presence, it is equally possible that in reference to a roll-call and the yeas and nays there should be a like mistake or falsification. The possibility of such inaccuracy or falsehood only suggests the unreliability of the evidence, and the danger of appealing to it to overthrow that furnished by the bill enrolled and authenticated by the signatures of the presiding officers of the two houses and the president of the United States. The facts, then, as appearing from this journal, are that at the time of the roll-call there were present 212 members of the house, more than a quorum; and that 138 voted in favor of the bill, which was a majority of those present. The constitution, in the same section, provides that ‘each house may determine the rules of its proceedings.’ It appears that in pursuance of this authority the house had, prior to that day, passed this as one of its rules: [144 U.S. 1, 5] ‘Rule 15. … (3) On the demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.’ H. J. 230, Feb. 14, 1890.

Note that, in this instance, they upheld the validity of the law’s passage, but it was by verifying that thru the journal.

If the House decides to pass the Senate version of HR 3590, SCOTUS will find no such journal entry on that bill since they never voted for it, but only for a rule change Resolution.

Will this pass muster in the courts? It’s hard to say. But there are some guarantees… if the House manages to bribe enough House Dems to take that leap of faith, enacting the Senate version of HR 3590… with or without changes… it will be met with a legal onslaught of lawsuits on many levels. From State’s Rights to procedure.

The push back by the states doesn’t escape the DLCC either. On March 17th, they sent out a call to action, citing that three states have already passed legislation to “gut” O’healthcare, and 35 more states have introduced legislation to do the same. This puts a windfall of opposition to the questionably legal, and certainly unethical procedure of it’s passage.

If such a bill passes – no matter what the method – the progressive leaders of this nation are in error if they think the battle is won. Their bigger battles have just begun.

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