an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Professor and (former Judge) Michael McConnell writes a sequel to his previous op-ed in the Wall Street Journal, reiterating his argument that use of a self-executing rule in the House of Representatives is unconstitutional. As McConnell notes, I sent a letter to Rep. Slaughter (which I reprint below) that states that the rule that the House plans to use is constitutional. Judge McConnell responds:
Balkin['s letter] assert[s] that a "rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House's powers under Article I, Section 5, Clause 2."
But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.
But I think in this case, McConnell himself is not addressing the point in issue. As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill. As I understand it, the language in question will be a standard formulation which has been used by both parties for many years. It will go something like this: "Effective upon passage of [whatever the reconciliation bill is called], the House hereby concurs in the Senate amendments to H.R. 3590." (H.R. 3590 is the House measure the Senate used as the shell to create its own bill.)
McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.
But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.
What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill. Every major bill out of the House is accompanied by an internal rule that sets up procedures for debate, amendment and voting. The internal House rule that mentions the two bills is not itself a bill (rules for bills can't be bills because the other house never votes on them); it's just an internal vehicle for setting the House's ground rules, and it doesn't consolidate the two bills into a single measure. Therefore the House is not, as McConnell suggests, "hiv[ing] the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration." There's no hiving off because there were always two bills. Just one vote.
All this is particularly tiresome and formalistic. Having to rehearse these arguments is like having to wonder about how many angels can dance on the head of a pin. If McConnell wants to make hyperformalist arguments to junk the bill, supporters can make hyperformalist arguments in response. But this shows the point at which we have come to in this debate over a very important piece of legislation. I sympathize with Judge McConnell's larger political point: the House really should have the political fortitude to schedule two separate votes on the Senate bill and the reconciliation measure. But this political objection is not a constitutional objection.
McConnell goes on to deal with the problem of whether a challenge could get anywhere in the federal courts because of the enrolled bill rule in Marshall Field v. Clark, which, as I've noted before, pretty much slams the door on any court challenge. McConnell (who in addition to being a distinguished jurist is also an absolutely first-rate litigator) tries valiantly to make use of an obscure footnote in a 1990 case, United States v. Munoz-Flores (1990), which, he suggests, might have secretly overruled or limited Marshall Field without anyone noticing it. Here is the text of the footnote:
JUSTICE SCALIA . . . contends that Congress' resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). But Field does not support his argument. That case concerned "the nature of the evidence" the Court would consider in determining whether a bill had actually passed Congress. Id., at 670. Appellants had argued that the constitutional Clause providing that "[e]ach House shall keep a Journal of its Proceedings" implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. I, 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id., at 670-671. In the absence of any constitutional requirement binding Congress, we stated that "[t]he respect due to coequal and independent departments" demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id., at 672. Where, as here, a constitutional provision is implicated, Field does not apply.
Nice try, but no cigar. It's important to remember that in Field, another constitutional provision *was* at stake-- the bicameralism clauses of Article I, section 7, the very clauses that McConnell relies on in his argument against the health care bill. Since the Court distinguishes Field by actually repeating its holding, it's hard to read this footnote as overruling Marshall Field v. Clark or holding that litigants can now challenge enrolled bills under the bicameralism clauses of Article I, section 7.
Rather, what Munoz-Flores seems to be saying is that challenges to laws under the Origination Clause of Article I, section 7, Clause 1 (which requires that all bills for raising revenue originate in the House of Representatives) present a different question from the question in Marshall Field v. Clark (and the question in the present controversy over health care reform). Marshall Field v. Clark holds that as soon as a bill is attested to by the presiding officers of the House and Senate and enrolled, courts won't enquire any further into whether the text of the bill passed by the House is the same as the bill passed by the Senate. The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence. But when a constitutional challenge claims that a bill started in the Senate when it should have started in the House, the Court regards this as something it can look into, because the text of the Constitution does not leave it to Congress to authenticate this particular fact. Instead, courts can take evidence on where the bill began.
This seems to be the most reasonable way of reading Munoz-Flores. And if it is, then the enrolled bill rule still applies, and this particular challenge to health care reform will still go nowhere in the courts.
* * * * *
Here is the text of the letter I sent to Rep. Slaughter yesterday:
March 18, 2010
The Honorable Louise M. Slaughter Chair, House Rules Committee 2469 Rayburn, House Office Building United States House of Representatives Washington, D.C. 20515
Dear Representative Slaughter:
Questions have recently been raised in the press about the constitutionality of the House of Representatives using a self-executing rule to pass health care reform. The rule would allow the House to pass the Senate’s health care reform amendments to H.R. 3590 along with the House’s proposed reconciliation measure in a single vote.
I write to explain why the use of a self-executing rule for these purposes is consistent with the Constitution.
Under Article I, section 7 of the Constitution, a bill does not become a law until it is passed by both houses of Congress, presented to the President for his signature, and the President then signs the bill or otherwise allows it to become law without his signature. These are sometimes collectively referred to as the requirements of bicameralism and presentment.
In order to satisfy the requirements of bicameralism and presentment, the two houses must pass bills with identical language. Clinton v. City of New York, 524 U.S. 417 (1998).
As I understand it, the rule to be employed by the House for the consideration of the reconciliation measure will state that, upon passage of the reconciliation measure by the House, the House concurs in the amendments to H.R. 3590 passed by the Senate. This language means that the House agrees to pass the same language as the amended bill passed by the Senate.
If this is the case, then the language of this self-executing rule complies with the requirements of Article I, Section 7. The Constitution does not require that the House take a separate vote on the Senate amendments to H.R. 3590. Under Article I, Section 5, Clause 2, the Constitution gives the House of Representatives, like the Senate, the power to “determine the rules of its proceedings.” A rule which consolidates a vote on a bill and accompanying amendments, or, as in this case, a reconciliation measure and an amended bill, is within the House’s powers under Article I, Section 5, Clause 2.
/s/ Jack M. Balkin /s/
Jack M. Balkin Knight Professor of Constitutional Law and the First Amendment, Yale Law School