~ Just Another Twisted Path to Health Care

Just when you think the road to Health Care Reform can’t get any more twisted, the Democrats uncover a new rule.

The House of Representatives has a problem. They have a health care bill they need to pass, but it is so bad no one wants their name tied to it, so Speaker of the House Nancy Pelosi announced a new path way to making Heath Care Reform law. It’s called “deem and pass” or “self-executing rule”.

The House of Representatives can vote on an amendment and then, if it passes, deem that the original bill it was to amend is also passed. This way no one has to actually vote on the original bill and have to defend their vote to their constituents (i.e., voting for those great deals for Nebraska, Louisiana, and Florida.) The only problem is that amendments are used to amend LAWS. A bill doesn’t become a law until it is voted on and passed by both the House and Senate and signed into law by the President.

What a nice little short cut. They should have named it “no vote’ as in no vote required. Which does wonders for governmental transparency or accountability as the Wall Street Journal points out How Democrats may ‘deem’ ObamaCare into law, without voting.

This two-votes-in-one gambit is a brazen affront to the plain language of the Constitution, which is intended to require democratic accountability. Article 1, Section 7 of the Constitution says that in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate.” This is why the House and Senate typically have a conference committee to work out differences in what each body passes. While sometimes one house cedes entirely to another, the expectation is that its Members must re-vote on the exact language of the other body’s bill.

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.

A constitutional challenge will likely await “Deem and Pass” if it is used according to Politico’s Fred Barbash:

Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let’s pretend.’ ‘Deems’ means it’s not true.”

Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.

– snip –

And in both cases, the court said that while Congress can make its own rules for its own convenience, those rules must “be exercised in accord with a single, finely wrought and exhaustively considered procedure” set out in the Constitution.

Justice John Paul Stevens, writing for the court, defined the procedure in the line-item case as having three steps: approval of a bill by one house, approval of the “exact text” by the other house, and a presidential signature. “The constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law,’” he wrote.

But, of course, Nancy Pelosi, Henry Waxman, and Louise Slaughter already knew this because in 2005 they filed amicus briefs against Republican using a self-executing rule as Larry Johnson pointed out in his post The Audacity of Hypocrisy.

Lawrence O’Donnell tackles “deem and pass” on Morning Joe (really starts at 2:00 mark)

Vodpod videos no longer available.

O’Donnell then goes on to explain, if the bill and amendment passes, what the American people will end up with – over and above subsidizing the health insurance industry.

Increased taxes – Since half the new coverage comes from a Medicaid expansion, which creates an unfunded mandate on states whose budgets are already broke. Does any one see higher state taxes on the horizon.

Increased premiums – Being able to review premium rates, doesn’t translate into lower rates. Insurance lawyers will see to that. Just ask California.

Cut benefits – The tax on premium plans isn’t to help pay for the cost of health care. It’s a way to let insurances cut benefits — and their costs.

Additional topic discussion here.


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