Legal Commentary

Balkin on the ?Slaughter Solution?

By Jonathan H. Adler

Stanford?s Michael McConnell thinks the so-called ?Slaughter Solution,? through which the House of Representatives to pass the Senate health care bill and a reconciliation package of amendments with a single vote, is unconstitutional.  Yale?s Jack Balkin is not so sure.  He thinks the ?Slaughter Solution? ? what he calls ?deem-and-pass? ? could be done constitutionally, but if the House complies with the applicable constitutional requirements, it might not provide House Democrats with the political cover they seek.  He writes, in relevant part:

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. . . .

The structural constitutional reason for this requirement is that members of the House must not able to avoid political accountability for passing the same bill as the Senate. The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, ?oh we didn?t pass X; that was the Senate?s decision.? If the House doesn?t accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law. . . .

Deem and pass may make some members of the House feel better by providing a sort of fig leaf, but to be constitutional the process cannot rid them of political responsibility for passing the Senate bill. If it did, they would not have created a valid law.

Full post as published by The Volokh Conspiracy on March 16, 2010 (boomark / email).