Hooey on Healthcare Reform from Michael McConnell

Writing today in the opinion page of The Wall Street Journal (full text here), former Tenth Circuit Court of Appeals Judge Michael McConnell argues that it would be unconstitutional for Democrats to utilize the "commonly used" tactic (the words of The Washington Post, not my own) of a self-executing rule to package a vote on the Senate's healthcare reform bill along side fixes to that bill. According to McConnell, such a move would violate Article I, Section 7 of the Constitution, which states that "in order for a 'Bill' to 'become a Law,' it 'shall have passed the House of Representatives and the Senate' and be 'presented to the President of the United States' for signature or veto."

Yale constitutional law professor Jack Balkin does a good job of slapping down this argument:

Despite Judge McConnell's concerns, which are textually well founded, there is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule.

If that weren't sufficiently clear, not all that long ago, a group of Congressmen filed suit in federal district court to have declared invalid the Deficit Reduction Act of 2005, which, as a result of an error by a clerk, was not actually passed in the same form by both the House and Senate -- then under Republican control. Citing the 1892 Supreme Court decision in Marshall Field v. Clark, the federal district court for the Eastern District of Michigan threw out the Congressmen's challenge:

Each of the courts that have addressed the identical issue presented here have held that enrolled bill rule announced in Marshall Field still applies today. Thus a claim of unconstitutionality for violation of Article I, Section 7, is not legally cognizable where an enrolled bill has been signed by the presiding officers of the House and Senate as well as the President. [internal quotation marks omitted]

In layman's terms, the court held, following more than a century of Supreme Court precedent, that individual Members of Congress have no valid federal claim where a bill has been certified as passed by both the Speaker of the House and the President of the Senate, and then signed into law by the President of the United States. If a court upheld as law a bill not passed into law in the same form by both chambers of Congress, it's hard to see how a court would strike down a bill passed by the majority vote of both Houses.

And to add just one more wrinkle, it is unclear just who would have standing to bring a suit challenging healthcare reform legislation. In order for a law to be successfully challenged, a plaintiff must not only have a valid claim -- which, as discussed above, is far from apparent -- he also must have the judicially recognized capacity to sue. McConnell doesn't touch this issue, and it is unclear why. Courts have been loath to extend standing to minority lawmakers believing themselves to be aggrieved by the tactics of the majority, and the Democratic Congressmen who filed suit in the Conyers v. Bush decision discussed above were found to lack standing (in addition to be lacking on the merits). If challengers to the healthcare reform legislation could prove that they had a majority of either chamber on their side on the issue they might be deemed to have standing -- but considering that healthcare reform, if it does pass, will have garnered at least a 216-vote majority in the House and a 50+1 majority in the Senate, it's hard to see how they would have standing to sue. 

I am not an attorney and this should not be read as legal advice. But at least from my vantage, McConnell's argument appears to be hooey, and nothing more than another political argument to try to make it harder for the Democrats to pass meaningful healthcare reform.

Tags: 111th Congress, Michael McConnell, healthcare reform (all tags)



Demon pass

So if reconciliation fails in the Senate, does the Senate bill become law?  If so, then why take this silly approach to passing it?  Just do it the old-fashioned way.  Don't use Republicans as the guide on this.

by the mollusk 2010-03-16 01:40PM | 0 recs
RE: Demon pass

Yes, it will become law regardless. There will be two votes anyway.

I suspect it's all just politics. Some, probably a small number, don't want to go on record for certain provisions of the senate bill - probably the excise tax - in fear it will be used against them at some point. So it's a bit of mental gymnastics.

by vecky 2010-03-16 04:40PM | 0 recs
RE: Demon pass

I get that part of it.  But I don't think it's necessarily a wise move.  It just presents the naysayers with such a large target.

by the mollusk 2010-03-16 05:34PM | 0 recs
Reconciliation already has the votes

The main hurdle right now is for the amended bill to clear the house, and word is that it's got the votes there - once it makes it to the Senate, since the bill is largely in the same form it already has the votes.  So the question isn't whether reconciliation will fail but whether or not it will clear the house -


The GOP has been reduced to a Dog and Pony show.



by Trey Rentz 2010-03-16 01:45PM | 0 recs
RE: Reconciliation already has the votes

I'm trying to get inside the heads of House members who would prefer to do the "deem and pass" thing, but not vote on the Senate bill directly.  The reasons for resorting to this would seem to fall into two categories:  1) House members don't trust the Senate to pass the reconciliation bill; 2) House members want to be able to say that they did not vote for the Senate bill as it was.  The first reason, if anyone actually thinks this, seems to be illogical almost on its face.  The second reason holds a little more water, but also seems to open up a House member to charges that he/she voted for their own complicated, backroom deal.  So does making yourself able to say "I sent that bill back to the Senate so they could clean it up!" really outweigh the obvious talking points the deem and pass strategy provides the GOP?  The answer to this doesn't seem obvious.

by the mollusk 2010-03-16 01:58PM | 0 recs
Deeply flawed

The problem with this whole thing is, the bill is deeply flawed, uses all sorts of smoke and mirrors, doesnt actually lower cost or in the long run improve access or qaulity care. This bill is a pig with lipstick. Further on average 55% of the american public has stated their objection to this bill. They have also expressed their anger over what they rightly see as all sorts of closed door deals, rule bending and the like. So not only is this bill a piece of crap but Americans are hip to the fact that its a piece of crap and that the Democratic party is attempting to give us what we dont want. Add to that the fact that Obama with said during the campaign that he would support mandates, wouldnt support a bill without public option, wouldnt support reform that would not be cost effective. He mocked Hillary on the mandate. He wouldnt support the Wyden Bennett Act becuase he said it would be too hard to pass, rather he chose to support a bill loaded with insurance company giveaways.

If they pass this bill, I am dont with this party and the President. I will support a 3rd party and work to see that every incumbent is voted from office. We are trillions in debt and these guy are trying to pass a deeply flawed bill that will do nothing but increase the debt.


by adb67 2010-03-16 03:08PM | 2 recs
RE: Deeply flawed

That's one thing it will not do - rather the debt will be reduced by $100 billion over 10 years.

by vecky 2010-03-16 04:43PM | 0 recs
RE: Deeply flawed

I agree with you this bill is junk. Its full of financial smoke and mirror. This bill wont fix the problem, rather it will create a bigger headache. The onyl bill I have seen I can support is Wyden Bennett and the President is too weak kneed and hypocrital so he didnt support it. I want this bill to fail becuase if they pass this piece of trash, 2 things will happen. First, we will be slaughtered in November and Two it wil accomplish nothing. How anyone can support this terd is beyond me.

by BuckeyeBlogger 2010-03-16 07:19PM | 0 recs
RE: Deeply flawed

Why do you support Wyden-Bennett?

by vecky 2010-03-16 07:50PM | 0 recs
RE: Deeply flawed

Because its a much simpler bill and essentially extends the Federal Employees Health Plan to the public. Its cleaner and it will work better in the long run. It works well and has been cost efficient for the Federal Government. And as many have said, if it s good enough for them, why not the rest of the country?

by BuckeyeBlogger 2010-03-16 08:55PM | 0 recs
RE: Deeply flawed

It's not a simpler bill either in intent or in policy. It expands federal government expenditure on HC by $1.3-$1.4 Trillion a year along with heavy taxes on businesses and companies to pay for it. The implementation phase alone - where people are forced to give up their current insurance plans in return for an uncertain pay increase and find their own plan will extremely difficult and convoluted. It's only saving grace is that it's seen a big step towards single-payer.

So what's the real reason you support it?

by vecky 2010-03-16 09:22PM | 0 recs
RE: Deeply flawed

First I notice you left out the full text from the CBO analysis on Wyden Bennett:

Overall, our preliminary analysis indicates that the proposal would be roughly budget-neutral in 2014. That is, our analysis suggests that [the] proposal would be essentially self-financing in the first year that it was fully implemented. That net result reflects large gross changes in Federal revenues and outlays that would roughly offset each other. More specifically, under [the] proposal, most health insurance premiums that are now paid privately would flow through the Federal budget. As a result, total Federal outlays for health insurance premiums in 2014 would be on the order of $1.3 trillion to $1.4 trillion. Those costs would be approximately offset by revenues and savings from several sources: premium payments collected from individuals through their tax returns; revenue raised by replacing the current tax exclusion for health insurance with an income tax deduction; new tax payments by employers to the Federal government; Federal savings on Medicaid and SCHIP; and state maintenance-of-effort payments of their savings from Medicaid and SCHIP...For the years after 2014, we anticipate that the fiscal impact would improve gradually, so that the proposal would tend to become more than self-financing and thereby would reduce future budget deficits or increase future surpluses."


You also failed to mention:

The size of the standard deduction for 2009 would range from $6,000 for individuals to $15,210 for couples with children, with incremental amounts for additional children. As a standard deduction, this reduces the income reported as subject to tax. However, this deduction would phase out for higher-income taxpayers, reducing to zero for couples earning over $250,000.

  1. Mandates that employers provide salary and wages increases over a two year period essentially equal to the amount paid previously for basic healthcare insurance premiums, as employers no longer have to provide basic healthcare coverage.
  2. Employers pay a new tax equal to between 3 percent and 26 percent of the national average premium for the minimum benefits package for each employee, depending on their firm size and amount of gross revenues per employee.

Is there some reason you left that information out?

by BuckeyeBlogger 2010-03-16 10:16PM | 0 recs
RE: Deeply flawed

I didn't leave any information out. I specifically mentioned both the costs (1.4$ Trillion per year), and the new taxes on businesses (3 - 26%) to pay for it and the supposed equivalent wage increase. All of these are pretty complex issues... which you have failed to address.

Don't get me wrong - Wyden's HSA would be a huge step towards single-payer. It's your "support" for it that I am questioning.


by vecky 2010-03-16 11:38PM | 0 recs
Deem and Pass

The healthcare reform that is scheduled to pass is a wide ranging set of legislation - its composite form would on the surface appear to be a monster 2400 page bill

What the house is doing  - imho - is aggregating other bills such as Alan Grayson's bill - and guaranteeing in a backroom deal the house reps that support real change - that the votes will be on the floor for the additional changes.

In the end, the "deem and pass" voters in the house are  passing the reconciliation fixes and deeming the Senate bill passed as part of that.  And those changes are significant.

In the end, when everything goes to implementation it should be clean. Right now the big hurdle that the legislation has to clear is the deeply flawed process that it ran into - in the senate - where the lobbyists rewrote massive sections of the law , added the 'Nebraska' compromise, etc. etc.

There is very strong well of support for changes to the Senate version - what happens from the House is now very straightforward: the "deem and passers" will end up being recorded has having voted for a stronger bill.

And in the end, with all the lobbyists cut out of the loop (which will happen if HCR passes) the Senate will be free to work and should be able to get the set of changes that the house is sending - done.

It's effing hilarious how every paid-off editor from every front page out there is trying to tell everyone HCR is stalled out and we won't see it happen. It will happen in a matter of +Days+


by Trey Rentz 2010-03-16 04:09PM | 0 recs
RE: Deem and Pass

looks like it will happen.


funny how things go when the President and Congressional Leadership actually twist arms. Obama's even been meeting with Democrats (not an error - it is not supposed to be "Republicans" this time) to try to get them to support it.

The newest rumor is that Kucinich is going to support it - after Obama gave a speech in his district in which Obama cited a woman in his district on her death bed asking Kucinich to vote for it.

Again, I wish Obama did even a little of that stuff for the public option or medicare expansion.



by jeopardy 2010-03-16 08:16PM | 0 recs


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