SCOTUS may yet intervene on Slaughter rule

Stanford Constitutional law professor Michael McConnell,whose argument that the Slaughter Rule is unconstitutional we cited to the other day, explains that the Constitution forbids the Slaughter rule technique and argues that while the Supreme Court normally avoids interfering with Congressional Rules, this is far different.
This goes back to that bombshell parliamentarian ruling insisting that Obama has to sign something before the Senate can start on reconciliation. The whole point of the Slaughter strategy originally, as I understood it, was to make it impossible for Obama to sign the Senate bill into law until Reid passed a fix matching the House's. Instead of voting separately on Bill A (Reid's Senate bill) and Bill B (a reconciliation fix), the House would integrate them into Bill AB - which Obama couldn't sign until Reid passed B, too. That's how Pelosi was going to assure wavering Dems that the Senate would keep its promise to pass something. If they didn't, O-Care would be dead. In other words, the point was never to split Bill AB back into separate bills after it passed (I think) but, on the contrary, to keep it intact. The parliamentarian destroyed that possibility, and yet, bizarrely, despite the potentially catastrophic constitutional flaw, they're ... still going to use the Slaughter strategy. The idea, I guess, is that there's some political benefit to letting House Dems claim that they technically never voted for Bill A, Reid's bill, only the new and improved Bill AB. But if reconciliation collapses in the Senate, all they'll be left with is Bill A and a killer GOP talking point that the new health-care law of the land was, by the Democrats' own admission, never technically voted into law. Super.

As for the separation of powers argument that the court shouldn't and won't second-guess Congress on its own procedures, I know there's some semi-precedent for it but ... really? So if Reid and Pelosi hold a joint presser tomorrow summarily declaring that the Senate bill and the fix shall now be considered duly passed, John Roberts and the gang would nod at that? Even I'm not that pessimistic.

Clarice Feldman


Stanford Constitutional law professor Michael McConnell,whose argument that the Slaughter Rule is unconstitutional we cited to the other day, explains that the Constitution forbids the Slaughter rule technique and argues that while the Supreme Court normally avoids interfering with Congressional Rules, this is far different.

This goes back to that bombshell parliamentarian ruling insisting that Obama has to sign something before the Senate can start on reconciliation. The whole point of the Slaughter strategy originally, as I understood it, was to make it impossible for Obama to sign the Senate bill into law until Reid passed a fix matching the House's. Instead of voting separately on Bill A (Reid's Senate bill) and Bill B (a reconciliation fix), the House would integrate them into Bill AB - which Obama couldn't sign until Reid passed B, too. That's how Pelosi was going to assure wavering Dems that the Senate would keep its promise to pass something. If they didn't, O-Care would be dead. In other words, the point was never to split Bill AB back into separate bills after it passed (I think) but, on the contrary, to keep it intact. The parliamentarian destroyed that possibility, and yet, bizarrely, despite the potentially catastrophic constitutional flaw, they're ... still going to use the Slaughter strategy. The idea, I guess, is that there's some political benefit to letting House Dems claim that they technically never voted for Bill A, Reid's bill, only the new and improved Bill AB. But if reconciliation collapses in the Senate, all they'll be left with is Bill A and a killer GOP talking point that the new health-care law of the land was, by the Democrats' own admission, never technically voted into law. Super.

As for the separation of powers argument that the court shouldn't and won't second-guess Congress on its own procedures, I know there's some semi-precedent for it but ... really? So if Reid and Pelosi hold a joint presser tomorrow summarily declaring that the Senate bill and the fix shall now be considered duly passed, John Roberts and the gang would nod at that? Even I'm not that pessimistic.

Clarice Feldman


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