Once upon a time, some Democrats were opposed to Slaughter-like solutions

Posted by: ST on March 16, 2010 at 10:39 am

And you’ll never guess which three. Well, maybe you will. Mark Tapscott writes:

But put aside the present for the moment and step into my time machine. Dial the date selector back to 2005 when the Republican majority in Congress approved a national debt limit increase using a self-executing rule similar to the Slaughter Solution.

Guess who went to federal court to challenge the constitutionality of the move? The Ralph Nader-backed Public Citizen legal activists. Here’s the argument they made:

“Article I of the United States Constitution requires that before proposed legislation may “become[] a Law,” U.S. CONST. art. I, § 7, cl. 2, “(1) a bill containing its exact text [must be] approved by a majority of the Members of the House of Representatives; (2) the Senate [must] approve[] precisely the same text; and (3) that text [must be] signed into law by the President,” Clinton v. City of New York, 524 U.S. 417, 448, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998).

“Public Citizen, a not-for-profit consumer advocacy organization, filed suit in District Court claiming that the Deficit Reduction Act of 2005, Pub.L. No. 109-171, 120 Stat. 4 (2006) (“DRA” or “Act”), is invalid because the bill that was presented to the President did not first pass both chambers of Congress in the exact same form. In particular, Public Citizen contends that the statute’s enactment did not comport with the bicameral passage requirement of Article I, Section 7 of the Constitution, because the version of the legislation that was presented to the House contained a clerk’s error with respect to one term, so the House and Senate voted on slightly different versions of the bill and the President signed the version passed by the Senate.

“Public Citizen asserts that it is irrelevant that the Speaker of the House and the President pro tempore of the Senate both signed a version of the proposed legislation identical to the version signed by the President. Nor does it matter, Public Citizen argues, that the congressional leaders’ signatures attest that indistinguishable legislative text passed both houses.” (Emphasis added)

And now for the kicker, guess who joined Public Citizen in that suit with amicus briefs:

Nancy Pelosi
Henry Waxman
Louise Slaughter

Hmm. Now, is this not a flip-flop of epic proportions? Of course it is. The left will be quick to point out that Republicans are “flip-flopping” on the issue of Slaughter-type solutions. Not so fast, says Andy McCarthy:

The bad news for present purposes is that they lost the case. The D.C. Circuit in Public Citizen v. U.S. District Court upheld the procedure. Upheld in this case does not mean endorsed. The Court did not say the self-executing rule was constitutional. It said it could not reach the question due to the standards of deference that apply between departments of government: If the presiding officers of both houses of Congress attest that their respective chambers have passed a piece of legislation, the Court is required to accept those representations as conclusive.

That doesn’t mean it is proper for government officials to execute a procedure that violates the Constitution, nor does it mean that a presiding officer should attest something that is not true. It does, however, suggest that it may be an uphill battle to get a court to declare the process null and void.

Mark is correct to point out that raising the debt ceiling is (regrettably) a routine, uncontroversial practice. Byron made a similar point yesterday in running down the handful of times the “self-executing” procedure has been followed. The key here is that in each instance, at issue was something that was non-controversial or almost ministerial — not, as with heathcare, an unpopular, bitterly opposed, ragingly controversial socialization of the private economy.

I think Democrats are mistaking a customary short-cut for a substantive precedent.

Yeah, I’ll say.

In related news, opponents of ObamaCare are making their voices known today by marching on Washington.    Pat Austin has the who, what, when, and where of what’s happening.

Update – 11:40 AM: It’s heating up even more on the Hill:  House Republicans to force vote on Pelosi’s Slaughter House solution

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  • 11 Responses to “Once upon a time, some Democrats were opposed to Slaughter-like solutions”


    1. Simon says:

      This meme is rapidly getting out of control, and I can’t understand how. Tapscott is wrong: the Public Citizen case did not challenge a self-executing rule. Read the case. Heck, read what Tapscott himself posted; it explains, in as many words, what the case is about: the defect complained about was that “the bill that was presented to the President did not first pass both chambers of Congress in the exact same form. In particular, Public Citizen contends that the statute’s enactment did not comport with the bicameral passage requirement of Article I, Section 7 of the Constitution, because the version of the legislation that was presented to the House contained a clerk’s error with respect to one term, so the House and Senate voted on slightly different versions of the bill and the President signed the version passed by the Senate.” That is a totally different issue to the instant question, which is how the House shall vote on the bill.

    2. steveegg says:

      Two more items from the actual Public Citizen case:

      – The Speaker of the House, Dennis Hastert, signed the “corrected” enrolled version without sending the correction back to the House for a vote.

      – The appellate court cited a case from 1892, Marshall Field & Co. v. Clark, in which the majority said, “Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act . . . should at any and all times be liable to be put in issue and impeached . . . . Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.” (emphasis added)

      Given that both Marshall Field and Public Citizen stated that the enrolled version as signed by the leadership of the Houses is the “conclusive” and “unimpeachable” record of what “passed” the Houses of Congress, I’m surprised that Pelosi, Byrd, Obama and Biden are even concerned with votes at all. After all, once the leadership of Congress is set, if the only accepted word of what was passed is what the Speaker of the House and either the Vice President or the President Pro Tempore of the Senate say was passed, why have a vote at all?

    3. Simon says:

      Steve, Marshall Field addresses (and Public Citizen applies; cf. Justice Scalia’s concurrence in Munoz-Flores) the level of scrutiny that courts will apply to procedural challenges to statutes in litigation, not the Constitution’s requirements for those processes. Think of it as being akin to the political question doctrine—impeachments, for example. Nixon holds that federal courts will not generally review issues arising from impeachments, but that lack of review doesn’t in any way detract from Congress’ obligation to follow the rules.

    4. steveegg says:

      If there’s no review, there’s no way to ensure Congress upholds its obligation to follow either the rules or the Constitution.

    5. Simon says:

      Steve, I agree, but the theory behind these cases is that the voters will ensure that Congress upholds its obligations. (The same theory underpins Chevron deference in the administrative law context: the agency is accountable to the public via the President.)

      The only alternative is a robust, maximalist conception of judicial review that treats the elected branches like unruly children whose homework will be marked by the Court. It’s a vision that I support, because I find the notion that the political branches will follow the Constitution not just unbearably pollyannaish in theory, but falsified in practice. Nevertheless, historically, it hasn’t been one that has been popular with conservative crowds. Your rationale is essentially the premise of Flast v. Cohen: there has to be judicial review of establishment claims because the political branches can’t be trusted. (Of course, one can accept this premise without accepting the court’s conclusion that the rules must therefore be bent to ensure a supply of litigants.)

      John Hart Ely caricatured the tension between the visions of Justices Frankfurter and Black: Frankfurter, the conservative, thought that everything should be reviewed, but lightly, while Black, the liberal textualist, thought that only some things should be reviewed, and with close scrutiny. I tend to side with Black, except that my focus on what should be reviewed is rather different. It seems to me that cases implicating the structural constitution should be reviewed with exacting scrutiny. Unfortunately, the down side is that you tend to produce an uncomfortably powerful and self-assured judiciary.

    6. steveegg says:

      Guess what, Simon. The elected branches are unruly children.

    7. Simon says:

      Steve, I agree, and as I said, I support treating them as such. I’ve been beating this drum for a while. ;)

      As to whether the courts are likely to do anything, Public Citizen looks to the enrolled bill rule, and I think that the court may well hew to it as a general rule. Munoz-Flores illustrates the limits of the rule, however. There, although Justice Scalia advocated reliance on the enrolled bill rule, the court was willing to peel back the curtain and entertain the question of whether the origination clause was offended by the law at issue. The only member of that majority still on the court is Justice Kennedy, but it does show (and might be thought precedent for the proposition) that the enrolled bill rule has limits, particularly when the inquiry can be guided by relatively clear and judicially-manageable standards. In this instance, the constitutional question isn’t clear—not nearly so clear as the critics would have it—so if the court took a case arising from these shenanigans, the court might call it a political question, it might call it a presumption of constitutionality, or (most likely lead by Justice Scalia), it might find the enrolled bill rule the strongest ground for rejecting the challenge. Either way, what I don’t see is the court striking down Obamacare on the basis of the slaughter solution. There will be stronger, better challenges.

    8. Dave B says:

      There is one other difference with the current situation. The citizenry won’t give a rat’s ass whether or not the Democrats vote for the actual bill or whether they vote to “deem” that it passed. As a matter of fact I believe that it will exacerbate the situation for the Democrats in 2010. Nobody’s going to buy that they “didn’t” vote for the bill that completely changed the landscape of our Republic.

    9. Kate says:

      Very interesting review Simon, thanks for your insight. I was wondering how the court might treat this and on what cases it might be based, but I don’t have the time or access to cases to do so.