Constitutional Text and Discontinuity

So what does the Constitution say about discontinuity? Let’s start our analysis at what might seem like an odd place (strike that, what is an odd place), an email from the Clerk of the Australian Senate:

I have always thought that, as your Constitution has no prorogation or dissolution, and as both of your Houses are continuing bodies (notwithstanding that all of the House seats turn over at the same time), it makes little sense to speak of different congresses, sessions or terms, and the convention of bills dying at the end of a “term” also has no basis.

Email from Harry Evans, Clerk of the Senate, Parliament of Australia, to Seth Barrett Tillman (Nov. 4, 2004), reproduced in Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110thSenate Enact a Bill Passed by the 109thHouse?, 16 Cornell J. L. & Pub. Pol’y 331 (2007).

I presume by “term” Mr. Evans was referring to the “term” of a congress, rather than to the terms of individual members of congress. The 20thamendment, after all, provides that “the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” This language is explicit in distinguishing a legislator’s term from that of his or her successor (or predecessor).

The original Constitution, on the other hand, says less about this subject:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

                   * * *

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one vote.

It is true, as Evans observes, that this language says nothing explicitly about “new” or “separate” congresses or congressional terms. It also says nothing about members of the House serving for terms of precisely two years (indeed, it does not expressly say they serve for limited terms at all). One might even draw a negative inference from the fact that senators are chosen “for six years,” but no statement is made that representatives are chosen “for two years.”

One could plausibly read this text as merely requiring that each state hold a congressional election sometime during each even-or odd-numbered year (absent congressional action pursuant to section 4 of Article I, the choice would be up to each state). Once the election were held, the newly elected member might assume a seat immediately, even if the House were in session. Alternatively, this might not occur until (1) the next convening or assembly of the House; (2) the next assembly or meeting of Congress: or (3) the first assembly or meeting of Congress in the next calendar year. The text does not tell us which of these alternatives is the correct one, or whether there is no single correct answer and it is up to somebody (Congress or the states, presumably) to decide as a policy matter.

Similarly, the text does not say when the terms of House members end. The Constitution does provide specifically that senate seats are vacated at two year intervals from the date of first assembly. Again, one mightdraw the inference that the absence of corresponding language for representatives is of some significance. Perhaps the seats of House members are vacated when their successors are elected (or sworn in) and thus will vary depending on the state election schedule. Perhaps the seats are vacated when the House adjourns sine die in the calendar year during which congressional elections are held (which might or might not be the same for all states). In short, it is not clear, based on the text of the (original) Constitution alone, when House seats turn over or if they in fact all turn over at the same time.

Nevertheless, from 1789 to 1932 (when the 20thamendment was proposed), the Constitution was uniformly interpreted to require all terms for House members to begin and end at the same time and to last for exactly two years. Although the beginning point was fixed not by a constitutional provision but by an act of ordinary legislation (one by the Confederation Congress), Congress believed that it lacked the constitutional power to alter this congressional schedule no matter how inconvenient or downright pernicious it was found to be. See generally Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 715-17 (2012).

Specifically, in 1788 the Confederation Congress directed that the proceedings of the new government under the newly-ratified Constitution would commence on the first Wednesday of the following March. This date, which happened to be March 4, 1789, was thenceforth considered as the commencement date for the terms of all federal elected officials (president, vice president, senators and representatives), which terms would also expire on March 4 (of each odd-numbered year, in the case of representatives). This produced the odd result that congressional terms began on March 4 of each odd-numbered year, but the newly-elected congress did not ordinarily assemble until nine months later on the first Monday in December, which was the default date specified by the original Constitution for the annual meeting of Congress.

Another inconvenient result of this schedule was the so-called “short session” of Congress. When Congress assembled on the first Monday in December of an even-numbered year, its proceedings could last no longer than about three months, i.e.,until March 4 of the following year. At that time the terms of all House members and one-third of senators expired, and the incumbents no longer had any constitutional authority to hold their seats or perform legislative activities.

According to Evans, however, both houses of Congress, and therefore Congress itself, are continuing bodies. Professor Tillman agrees. See Seth Barrett Tillman, Defending the (Not So)  Indefensible, 16 Cornell J. L. & Pub. Pol’y 363, 368 n.22 (2007) (“I believe the House and the Senate are both continuing bodies.”). So, apparently, does Professor Prakash. See Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law35 (Jan. 2018) (“there is no [constitutional] rule that dictates that ‘Congress’ necessarily expires . . . [n]or does any text specify that, when terminated, an old Congress immediately segues into a new Congress”); id. at 36 (“one might conclude that while members come and go due to deaths, resignations, and expulsions, Congress itself never changes [and] there is (and always has been) but one, uninterrupted Congress, albeit composed of different members across time.”).

If Evans, Tillman and Prakash were correct that Congress is continuing in nature, the “short session” would not have posed much of a problem. Congress could have simply continued to sit past March 4, with two-thirds of the Senate and all re-elected incumbents unaffected, while the seats of retiring or defeated incumbents would be assumed by their newly-elected representatives. Thus, despite the expiration of congressional terms, the business of Congress could have continued without interruption. This would have been a regime of legislative continuity.

Congress, however, has never understood the Constitution to permit it to operate in such a fashion. From the very start, Congress has understood that each two-year congressional term constitutes a separate congress, with the First Congress occurring from March 4, 1789 to March 4, 1791, the Second Congress from March 4, 1791 to March 4, 1793, and so on. See Prakash, supra, at 35. As a result, all legislative business had to be completed by March 4 of each odd-numbered year, when the “old Congress” expired. See S. Rep. 72-26Fixing the Commencement of the Terms of the President and Vice President and Members of Congress4 (72d Cong. 1stsess.) (Jan. 4, 1932) (explaining the “very undesirable legislative condition” resulting from the “so-called short session,” which “enables a few Members of Congress to arbitrarily prevent the passage of laws simply by the consumption of time”); Larson, supra, 2012 Utah L. Rev. at 715-34 (describing over a century of efforts to eliminate the short session).

It is true, as Professor Prakash emphasizes, that the Constitution does not explicitly declare that each congress expires or dissolves every two years or that there is a distinction between the current congress and past congresses. SeePrakash, supra, at 35. But if one recognizes that the temporal limitation of a legislative body was a fundamental practice not only of Parliament but of the colonial/state legislatures, it seems entirely reasonable to read the Constitution’s references to “Congress” as incorporating these concepts. For example, the declaration in Article I, section 1, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives” may be interpreted as an implicit reference to the currentcongress, just as the “President” implicitly refers to the currentpresident. See generally Lawrence B. Solum, Surprising Originalism: The Regala Lecture11-12 (draft May 8, 2018) (discussing the importance of “impliciture” and other forms of “pragmatic enrichment” in reading constitutional text); cf. Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. L. & Pub. Pol’y at 336 n.11 (conceding that the language of Art. I, §1 “might support contemporaneous action as an implicit requirement of bicameral action”).

Alternatively, one might conclude that the original Constitution is silent on the question of legislative discontinuity and that the practice of treating each two-year term as a separate congress is a “mere” constitutional gloss placed upon the text from 1789 to 1932. This position becomes much harder to take, however, when one considers the adoption of the 20thamendment in 1932-33.

Again, it is true, as Prakash takes pains to point out, that the 20thamendment never expressly “dictates that a ‘Congress’ commences on January 3 of an odd year at noon and terminates on the same day and time two years later.” Prakash, supra, at 35. It is indisputable, however, that this is precisely what everyone involved in proposing and ratifying the 20thamendment understood would be the effect of that amendment. This, moreover, was not an incidental effect but part of the amendment’s core purpose.

Part of the objective of the 20thamendment was simply to eliminate the short session, which was inconvenient and inefficient for the reasons already mentioned. The other objectives related to the importance of assembling a “new Congress” as soon as possible after it was elected and ensuring that it, rather than the “old Congress,” was making important decisions. See S. Rep. No. 72-26, at 4 (“No reason has been given why a new Congress elected at a general election to translate into law the wishes of the people should not be installed into office practically as soon as the results of the election can be determined.”).

As the House report accompanying the proposed amendment explains, “[u]nder our present system, the old Congress expires on the 4thday of March of the odd years, and the first meeting of the new Congress is on the first Monday of the following December.” H.R. Rep. No. 72-345, Proposing an Amendment to the Constitution of the United States 3 (72d Cong. 1stsess.) (Feb. 2, 1932). The proposed amendment shifted this schedule so that the old Congress expired at noon on January 3 of each odd-numbered year, and the meeting of the new Congress (unless changed by law) would occur at the same date and time.

Supporters of the amendment argued that this revised schedule was not merely more efficient and convenient, but more consistent with the principles of representative democracy:

The only direct opportunity that the citizens of the country have to express their ideas and their wishes in regard to national legislation is the expression of their will through the election of their representatives at the general election in November. During the campaign that precedes this election the great questions demanding attention at the hands of the new Congress are discussed at length before the people and throughout the country, and it is only fair to presume that the Members of Congress chosen at that election fairly represent the ideas of a majority of the people of the country as to what legislation is desirable.

S. Rep. No. 72-26, at 3. These views mirror the arguments for legislative discontinuity discussed in my last post.

Professor Tillman argues that the idea of each congress expiring or dissolving was based on an inappropriate attempt to map British parliamentary practices onto a very different American legislative system. See Tillman, Defending the (Not So) Indefensible, 16 Cornell J. L. & Pub. Pol’y at 368 n.22, 376 n.46, 377 n.50, 379 n.56. However, the framers of the 20thamendment were well familiar with a century and a half of legislative practice under the Constitution, and they did not see it the way Tillman does. They believed that the Constitution needed to be amended to bring American practice more in line with that of other countries with respect to the assembling of a new legislature. Representative Celler, for example, remarked: “In no country other than ours does 13 months elapse between election and convocation of parliament. The practice in Great Britain, Canada, Australia, and New Zealand has been to make the interval between elections and the summoning of parliaments as short as possible.” 75 Cong. Rec. 3828 (1932). Another member remarked:

Mr. Chairman, I was wondering, as Winston Churchill sat over in the rear of the House a few minutes ago, what his emotions would be if, in the Parliament of England, he and his colleagues sat around for 13 months after election before they took their seats for legislative work at the next regular session. There, the English people throw out an administration upon their own vote, returning the new Parliament that then comes in and legislates, while we wait 13 months unless called here in extra session.

Id. at 383 (Rep. Frear).

In short, the framers and ratifiers of the 20thamendment clearly understood that the amendment would establish noon on January 3 of each odd-numbered year as the time when an old congress would expire and a new congress would begin. To deny that the constitutional text has this effect would seem to be an exercise in “literalism” rather than “textualism.” See Solum, supra, at 11 (explaining the difference).

 

Legislative Discontinuity: An Introduction

Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this term meant (I know I didn’t), but the lawyer elaborated that he was asking whether legislation had to pass within a certain period of time. The panelists then explained that bills must pass both houses within the two-year congressional term and that all unfinished legislative business dies at the end of each congress.

This practice is known, at least internationally, as one of “discontinuity” because legislative business does not continue past the expiration or dissolution of the legislature. I asked the Dutch lawyer later whether there are legislatures which follow the opposite practice of allowing legislation to continue even though a new legislature has been elected. He said there are, including the Netherlands and the EU Parliament. In these jurisdictions bills can remain “live” for years or even decades after they are introduced. In some cases, the original sponsor of the measure is no longer in the legislature so there is no one who can formally withdraw it.

There apparently is not a lot of literature on discontinuity, but one recent article discusses it in some depth. SeeRivka Weill, The Living-Dead, 38 Fordham Intl L. J. 387 (2015). Professor Weill explains that legislative discontinuity is “the prevailing norm in both presidential and parliamentary systems.” Id.at 389. There are, however, exceptions, including the Netherlands and the EU Parliament (so that checks out). Id.Another exception is Israel, and Weill (who is Israeli) focuses on the decision of the Knesset to adopt a rule of continuity in the 1960s.

She describes two different schools of thought within the Knesset. The pro-continuity side saw the Knesset as a continuing body. Id.at 447. This position, according to Weill, rested on a conception of the legislature as having “perpetuity and continuity similar to an artificial body, like a corporation.” Id. at 448. Under this vision, the continuity of the legislature is maintained by the passage of sovereignty from one assembly to another, just as in a monarchy the sovereignty of the King’s person passes in death to the natural body of his heir. Id.

The discontinuity side, on the other hand, believed that “each parliament is born anew.” Id.at 447. Weill argues that this conception is fundamental to representative government and that the failure to follow it “severs the link between legislative cycles and election cycles, and thus eviscerates the significance of elections.” Id.at 413. By contrast, the pro-continuity argument is mistaken because in Israel and other liberal democracies “the continuity of sovereignty rests with the people, not with their representatives.” Id. at 448. Thus, popular sovereignty “is manifested in the real power of constituents to influence the content of laws by breaking the legislative continuity and electing new representatives.” Id.

Weill also contends that as a matter of actual practice, the Knesset has not regarded itself as a continuing body. Moreover, even in the U.S. Senate, which does consider itself to be a continuing body, “the principle of discontinuity of the legislative process applies, as bills that do not become law within two years are dead.” Id.at 449.

One of the interesting aspects of this Israeli debate related to the discussion of British parliamentary practice. See id.at 404-06, 409-10. Weill explains that Great Britain was viewed as the symbol of discontinuity and that both supporters and opponents of the continuity proposal used its example in their arguments. Id.

Here, some background on British practice may be useful.

 

Discontinuity in Britain

Historically, discontinuity in Britain stems from the crown’s prerogative powers of summoning, proroguing and dissolving parliament. Once a parliament was summoned, the king could either use prorogation to end its session or dissolution to end the parliament altogether:

The Tudor and Stuart monarchs summoned parliaments not merely to request tax revenue, but also to enact policies. They also relied on prorogation to prolong the life of a favourable rather than risk dissolving it and summoning a new, potentially less pliable parliament. For example, Henry VIII used prorogation to extend the life of the Reformation Parliament to seven years; it sat through seven sessions between 1529 and 1536 and passed a variety of statutes that broke with the Holy See and established England as an independent Protestant kingdom. Charles II used prorogation to prolong the life of the Cavalier Parliament and its Royalist majority from 1661 to 1679. The Stuarts also expressed their hostility toward what they regarded as parliamentary encroachment on Divine Right by dissolving pesky parliaments. The Sovereign thus determined at his own discretion both the duration of each individual parliament through prorogation and the number of years between parliaments through dissolution.

James W. J. Bowden, Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus The Fixed-Election Laws in Canada19 (June 4, 2013). Either prorogation (end of a session) or dissolution (end of a parliament) resulted in the death of pending legislative business. See 1 William Blackstone, Commentaries on the Laws of England186-88 (1765).

As Parliament grew stronger, these royal prerogatives were to a large extent limited by statute and practice. Bowden, supra, at 19-22. Eighteenth century parliaments had a statutory maximum life of seven years and the dissolution of one parliament was routinely followed by the summoning of a new parliament and accompanying elections for the House of Commons.See1 Blackstone, at 177-78, 189.

Even today, the queen formally exercises the powers of prorogation and dissolution, though in practice she does not exercise her own discretion but acts on the advice of the prime minister. SeeWilliam McKay & Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century33, 123 (2010). A new parliament is summoned by the crown and the parliament ends when It is dissolved by royal proclamation or (less commonly) by the passage of time. Id. Parliament continues to follow a rule of both legislative and sessional discontinuity (or, as it is sometimes called, “sessional cut-off”). However, sessional discontinuity is no longer absolute as some legislation can carry over from session to session. Id. at 465-66; Weill, 38 Fordham Intl L. J. at 404 n.74, 409-10.

Continue reading “Legislative Discontinuity: An Introduction”

Did Liz MacDonough Change the Process for Making Byrd Rule Determinations?

For those who don’t know, Ms. MacDonough is the Senate Parliamentarian, and in that capacity she is responsible for making preliminary rulings on what parts of the Senate health care reform bill comply with the “Byrd rule.” Without getting into the many intricacies of the Byrd rule, the basic point is that those provisions of the legislation which are compliant with that rule can pass the Senate with a simple majority vote under the reconciliation process, while those that are determined to be non-compliant must be stricken unless 60 senators (the same number needed to break a filibuster) vote to waive the Byrd rule point of order.

According to this June 20, 2017 post by Georgetown law professor David Super, MacDonough has changed the procedures for making preliminary Byrd rule determinations in a way that materially disadvantages Democrats who oppose the health care bill. Professor Super wrote:

Ms. MacDonough is by all accounts a smart and capable lawyer.  Nonetheless, she serves at the pleasure of the Majority Leader, Senator McConnell.  A prior Republican Senator Majority Leader fired one of her predecessors for making unwelcome rulings, and some current Republican senators have already called for Ms. MacDonough’s firing.  This year, she has departed from longstanding practice by meeting with Republican staff ex parte to discuss parliamentary objections rather than allowing Democratic and Republican staff to argue their points before her in a joint meeting.  Therefore, Republicans may know which items she will hold violate the Byrd Rule – and how to modify those items to achieve a favorable ruling – but Democrats do not and may not until the very last moment.

I found this charge surprising not only because it doesn’t sound like something MacDonough would do, but because I would think that there would be a much louder outcry if this were happening. (It seems a tad more important, for example, than the fact that there is a dress code for the Speaker’s Lobby).

So I emailed Professor Super for some more detail, and he graciously responded. He explained that the sources of his information were people “who were in frequent contact with Democratic staff.” These sources reported that the Parliamentarian was holding separate meetings with Democrats and Republicans and “keeping the contents of each meeting confidential from the other side.” Moreover, in the past “at the conclusion of or subsequent to the joint meetings, the parliamentarian has let both sides know what to expect.” By contrast, Democratic staff had not received any indication of MacDonough’s expected rulings on the health care bill. Super noted that “[a]lthough it may be theoretically possible that Republican staff are equally in the dark, the absence of complaints from that sector leads me to believe that they are not.”

I have no reason to doubt that Super is reporting in good faith what he has been told, but I just came across this article from June 30, which quotes several Democratic and Republican experts on the process MacDonough is following, with no indication of the irregularities Super alleges.

According to Bill Dauster, a longtime Democratic staff director for the Senate Budget Committee who just retired in May, the process is as follows: “The Democrats go in, the Republicans go in, then both of them go in together.” MacDonough has not been ruling immediately, but, according to Dauster, “she has, of late, gotten back to people by email” with her preliminary views or rulings. According to the article, this is an improvement over the process often used in the past, when staffers often did not know how the parliamentarian was leaning until the issue was raised on the floor.

There is nothing in this article to suggest that MacDonough is changing the process to make it less fair or transparent. Of course, it is possible that the author of the article did not talk to the right people. But it is also possible that Super’s (unnamed) sources were wrong, or had an agenda. Or perhaps they were upset that they had not yet received a ruling from the parliamentarian’s office, but later got one by email. (It seems that one major ruling has just come out in the last few days).

So I remain skeptical of this allegation. But if more emerges, I will update the post.

When is a Meeting not a Meeting?

When the Supercommittee says so, apparently.  According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday.

But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry seems to think so. Asked for comment on what occurred, he would say only that it was a “good meeting, we had a good meeting, a good meeting.” Not terribly informative, but the one thing that seems clear is that it was a meeting.

Maybe not. According to a colloquy between co-chairs Jeb Hensarling and Patty Murray at the organizational meeting, the term “meeting” in the Supercommittee rules refers to a “meeting for the transaction of business” as provided for by House and Senate rules. This means that sessions involving “markups of legislation and reports” are covered by the open meeting rule, but “less formal caucuses” or “working sessions” are not.

Committee markups refer to “sessions where committee members consider changes in the text of the measure or matter before them” or “determine whether a measure pending before a committee should be amended in any substantive way.” Since there are no legislative measures pending before the Supercommittee, it cannot yet conduct a markup. Indeed, even once legislative language has been drafted, it is not clear that consideration of accepting or changing such language would constitute a markup, since there is no measure formally pending before the Supercommittee.

In short, as the Supercommittee interprets its rules, all of its sessions that do not involve voting on specific legislative language appear to be beyond the scope of its open meeting rules. And it is not clear that even consideration of specific language would need to take place in open session, particularly if there is no formal vote. According to the Supercommittee’s interpretation, all of its deliberations could take place behind closed doors, with only the final vote on its report and proposed legislative language being public.

 

 

“Would You Like Tax Hikes or Spending Cuts With Your Eggs?”

John Wonderlich of the Sunlight Foundation reports on a possible closed meeting of the Supercommittee tomorrow. Initially this was described as an “executive session” of the Supercommittee; later it was “clarified” that it will be a “private breakfast meeting.”

The Supercommittee rules clearly require, at a minimum, that a vote be taken in open session in order to close a meeting to the public. Thus, if the event tomorrow qualifies as a “meeting” within the meaning of the rules, it would not be permissible.

But is it a “meeting” in that sense? According to experienced congressional counsel, a “meeting” within the meaning of the rules requires that there be some sort of formal transaction of business, as opposed to an informal “working session.” If no vote is held nor other formal action taken, presumably it can be argued that any get-together of the Supercommittee falls within the latter category. Whether or not this conforms to the spirit of the rules depends, I would think, on what actually transpires at this private breakfast.

Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.

 

“Precedents” and Presidential Addresses

As you may have heard, the President has requested an opportunity to address a joint session of Congress. His request initially was to make the address on September 7, but the Speaker responded that because of certain logistical concerns “it is my recommendation that your address be held on the following evening.”

In reference to this exchange, Luke Russert tweeted that the “House historian says public move by Boehner to tell Obama to change date is unprecedented.” To the extent that this implies that Presidents have traditionally determined the dates of their addresses to joint sessions of Congress without consultation or negotiation with the leadership, it is misleading both as to precedent and as to the advice of the House Historian.

A joint session to hear the President is convened by a concurrent resolution. See Deschler’s Precedents, ch. 1, § 3.4; see also House History: Joint Meetings, Joint Sessions and Inaugurations. As a formal matter, therefore, permission of both Houses is required; Deschler indicates that in the House the Speaker and leadership informally exercise control over the date and time of joint sessions or meetings. There is no indication that the President has the authority to set the date and time unilaterally.

Thus, it stands to reason that when the President wants to address a joint session, the White House contacts the congressional leadership and a date and time is worked out in private discussions. This seems to be the protocol that the White House was attempting to follow when it contacted the Speaker’s office. The absence of any “precedent” on this issue does not mean that there has never been any negotiation or disagreement on a date and time; it merely means that no one went public with the issue before an agreement was reached. That is all the House Historian was trying to convey.

 

Update: Russert’s tweet was linked to by this Jim Downie blog post (which in turn was cited by Jonathan Capehart in the Washington Post). Downie and Capehart, however, did not link to the original tweet, but to someone else’s selective quotation of that tweet. If one goes to the original tweet, it reads as follows: “House historian says public move by Boehner to tell #Obama to change date is unprecedented. Negotiations usually happen behind closed doors.”

In fairness to Russert, the second sentence makes his statement less misleading. The statement that “negotiations usually happen behind closed doors” is an accurate paraphrase of what the House Historian said. Of course, it also makes the first sentence entirely meaningless, at least for the purposes of apportioning blame between the President and the Speaker.

Needless to say, whoever knowingly omitted that second sentence must have intended to mislead.

 

Update 2: This Hot Air post indicates that there is some “precedent” for a Speaker refusing a presidential request to address Congress, though in that case it was President Reagan’s request to address the House, rather than a joint session. Something that the House Historian might want to note, although not inconsistent with the observation that negotiations usually take place behind closed doors.

 

 

A Court Challenge to the “Slaughter Solution”

           This Politico article  provides a good overview of the possibility of a court challenge to healthcare reform legislation if it is enacted through the “Slaughter Solution.”  The article notes that “[n]o lawyer interviewed by POLITICO thought the constitutionality of the ‘deem and pass’ approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.”

            This is important, from a practical perspective, because it provides fair warning to the congressional leadership of what may happen should the “Slaughter Solution” be employed.  The takeaway, even from lawyers on the left side of the political spectrum, is that the constitutional issues involved need to be taken seriously by the leadership, and that it is inadvisable to use this procedure if it can be avoided.  As Alan Morrison puts it, “’If I were advising somebody,’ on whether deem and pass would run into constitutional trouble, ‘I would say to them, ‘Don’t do it.’”

            Whether or not this persuades the House to use more traditional means of passing healthcare reform remains to be seen.  If it persists in using the “Slaughter Solution,” the leadership will have only itself to blame for any resulting court challenge.   

Does the “Slaughter Solution” Comply with the Constitution’s Lawmaking Requirements?

The latest procedural furor in the healthcare reform debate has been over something dubbed the “Slaughter Solution,” so-named after the Chair of the House Rules Committee.  To understand this procedure, one must recall that the Democratic leadership intends for the House to pass two separate bills.  The first is the bill that previously passed the Senate in December.  The second is the “reconciliation fix” bill, which is a new bill that will embody the changes to the Senate bill agreed upon by the leadership.

Once passed by the House, the Senate bill would go to the President and presumably become law.  The reconciliation fix, on the other hand, would still need to be passed by the Senate before it can become law.  (The hope is that the reconciliation fix can be passed by the Senate under reconciliation procedures, which will enable it to avoid a filibuster).  It is possible that only the Senate bill would ultimately become law (theoretically, although not practically, it is also possible that the President could veto the Senate bill, so that neither bill, or only the reconciliation fix, would ultimately become law).

The House could take up and pass the Senate and reconciliation fix bills separately.  For reasons that are somewhat unclear (but apparently relate to the unwillingness of House Members to take a specific vote in favor of the Senate bill), however, the House is reluctant to proceed in this manner.  The Slaughter Solution is designed to allow the House instead to pass both bills in a single vote.  To achieve this goal, the House would first vote to approve a rule that states that passage of the reconciliation fix will be “deemed” to also represent passage of the Senate bill.  The House would then vote to pass the reconciliation fix and, voila, two bills for the price of one.

There is a long, but interesting, thread at the Volokh Conspiracy regarding potential constitutional problems with the Slaughter Solution.  Professor (and former judge) Michael McConnell has also weighed in with his view that the Slaughter Solution is unconstitutional.

There are basically two objections to the Slaughter Solution.  The first is simply to the concept that the House would “deem” a bill to be passed without taking a vote on the bill itself.  It is argued that the Constitution implicitly requires that every bill be actually passed by the House (and Senate) with a vote that is, or could be, separately recorded (Article I, section 5, cl. 3 requires that the “yeas and nays” on “any question” be entered in the Journal if one fifth of either House so request).  Bills that are merely “deemed” passed, therefore, cannot become law.

Although this objection has some plausibility, it also seems artificial, in that there is arguably no substantive difference between voting to pass a bill and voting to pass a rule that “deems” the bill to be passed.  Thus, assuming that there is a constitutional violation, it would seem to be de minimis (and thus no different than other congressional mechanisms like passing bills by unanimous consent despite the absence of a quorum).  Moreover, as commenters have pointed out, the House has used “self executing rules”  for a number of years, and these rules also can “deem” a bill to have passed.  Finally, the Constitution’s recorded vote requirement does not, at least expressly, prohibit conducting a vote on a rule rather than a bill.

A more substantial objection, however, is that the Slaughter Solution requires the House to conduct a single vote on passage of two separate bills.  This is highly unusual, and perhaps completely unprecedented.  Contrary to some claims, the “Gephardt Rule” is not the same because that procedure involves only one bill (a statutory increase in the public debt limit) and one congressional concurrent resolution, which is not presented to the President and does not become law.

What is the constitutional problem with having one vote to pass multiple bills?  The answer can be found in the Supreme Court’s jurisprudence on the line item veto act, which allowed the President to “rescind” individual spending items in an appropriations act passed by Congress.  Members opposed to the line item veto argued that the line item veto unconstitutionally deprived them of their right to vote on the actual legislation that would become law by allowing the President to pick and choose which parts of the appropriations act would be given legal effect.  In Clinton v. New York, the Supreme Court held the line item veto to be unconstitutional, finding that it effectively allowed the President to create a new law different from the one actually passed by Congress.

The Slaughter Solution raises constitutional issues similar to the line item veto.  By requiring Members to vote on multiple bills at the same time, it deprives them of the opportunity to make discrete decisions on each bill.  Members are forced to make an up-or-down decision on a package of bills, but without knowing which of the bills will ultimately become law.  As Judge McConnell points out, it also deprives voters of the opportunity to hold Members accountable for their votes on each bill.  If the House votes for Bill A and Bill B together, and only Bill B becomes law, Members who voted in favor of the package can claim that they only wanted Bill B to become law on the condition that Bill A also became law.

The Slaughter Solution is most closely analogous to the “separate enrollment” version of the line item veto.  Under this proposal, a bill passed by Congress would be “deemed” to consist of multiple individual bills, which would be separately enrolled, and which could then be individually vetoed by the President.  The constitutionality of this version of the line item veto was debated in Congress in the 1990s, but Congress ultimately chose to pass the “enhanced rescission” version instead, which was eventually struck down by the Supreme Court.

It could be argued that the “separate enrollment” device could survive constitutional scrutiny because it better complies with the formal requirements of Article I than the enhanced rescission version.  On the other hand, Elizabeth Garrett notes that the “extended debate in the Senate may reflect the reality that separate enrollment was really no less constitutionally problematic than enhanced rescission, and, given, its deeming provision that allowed all the little bills to pass without separate votes on each, its constitutionality was perhaps more dubious.” In short, the Slaughter Solution raises serious constitutional issues in that it permits the passage of multiple bills with a single vote.

The Role of Reconciliation Instructions

For those who are trying to follow the nearly incomprehensible debate over reconciliation, it is worthwhile keeping in mind the controlling reconciliation instructions, which are contained in Sections 201 and 202 of the Concurrent Budget Resolution for Fiscal Year 2010.  The exact language of these instructions turns out, it appears, to be critically important. For example, the reconciliation instructions instruct the Senate Health, Education, Labor and Pensions Committee to report changes in laws within its jurisdiction to reduce the deficit by $1 billion for FYs 2009-2014.  But the heathcare “fix” bill, which the House and Senate leadership wishes to pass through reconciliation in order to bypass a Senate filibuster, would not contain such savings.  According to this article in the Hill, the solution to this problem is to combine the healthcare fix with a completely unrelated bill regarding student loans, which is scored as achieving net savings for the government. The article states: “A Senate Democratic aide noted that the student lending measure would be necessary for the HELP Committee to craft a reconciliation bill that produced the required savings. Without piggybacking on the lending bill, it would become more difficult to use reconciliation to pass healthcare fixes under the HELP Committee’s jurisdiction.” As Dave Barry would say, I am not making this up. The 2010 reconciliation instructions are set forth below: SEC. 201. RECONCILIATION IN THE SENATE. (a) COMMITTEE ON FINANCE.—The Senate Committee on Finance shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS.— The Senate Committee on Health, Education, Labor, and Pensions shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the Senate, not later than October 15, 2009, the Senate committees named in subsections (a) and (b) shall submit their recommendations to the Senate Committee on the Budget. Upon receiving all such recommendations, the Senate Committee on the Budget shall report to the Senate a reconciliation bill carrying out all such recommendations without any substantive revision. SEC. 202. RECONCILIATION IN THE HOUSE. (a) HEALTH CARE REFORM.— (1) The House Committee on Energy and Commerce shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (2) The House Committee on Ways and Means shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (3) The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) INVESTING IN EDUCATION.—The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the House, not later than October 15, 2009, the House committees named in subsections (a) and (b) shall submit their recommendations to the House Committee on the Budget. Upon receiving all such recommendations, the House Committee on the Budget shall report to the House a reconciliation bill carrying out all such changes without any substantive revision..