"Slaughter Rule" and Deemed Passage of Legislation

Fri Mar 12 10:30:33 PST 2010

So the vote on the rule would also be a vote to pass the Senate bill?
That seems fine to me, so long as the result is (1) that the President
then could sign the Senate bill, making it law, (2) the Senate could
refuse to pass any bill passed by the House that would amend the law
that has thus been enacted, and (3) the President could veto any bill
passed by both the House and Senate to amend the law that has thus been
enacted. 

But if the "Slaughter Rule" would authorize the Clerk of the House (if I
remember the Clerk's role correctly) to hold the bill and not send it to
the President until the Senate has passed the House amendment bill, then
there is a serious problem. In effect the House would be delegating to
the Clerk (or to the Speaker, assuming the Clerk takes direction from
the Speaker), authority to determine whether a bill that has been passed
in both houses is delivered to the President. That's not exactly a
Chadha issue, but it seems distinctly out of harmony with the
Constitution.

Mark Scarberry
Pepperdine

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bruhl, Aaron
Sent: Friday, March 12, 2010 9:29 AM
To: conlawprof at lists.ucla.edu
Subject: RE: "Slaughter Rule" and Deemed Passage of Legislation

I would approach things this way:

The Constitution says that both houses must "pass" a bill.  It doesn't
say what exactly constitutes passage.  It does say that "each house may
determine the rules of its proceedings," which indicates that there is
some latitude (not infinite, certainly) for the house itself to
determine what constitutes passage.

Suppose a resolution takes this form: "In passing this resolution, the
House is deemed to have also passed Bills X and Y."  Perhaps I'm missing
something, but it is hard for me to see the problem with this, from the
point of view of constitutional passage.  (To be sure, there might be
other objections.)  Is there some relevant difference between this
scenario and the Slaughter rule?

As Chris Schroeder points out, self-executing rules and "deemed passage"
are not novel.  See also these sources:
http://www.rules.house.gov/Archives/98-710.pdf

http://www.wilsoncenter.org/index.cfm?topic_id=1412&fuseaction=topics.pu
blications&doc_id=190504&group_id=180829

Aaron-Andrew P. Bruhl
Assistant Professor of Law
University of Houston Law Center
http://www.law.uh.edu/faculty/main.asp?PID=3839

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David Wagner
Sent: Friday, March 12, 2010 7:41 AM
To: Chris SCHROEDER; conlawprof at lists.ucla.edu; Mark Scarberry
Subject: RE: "Slaughter Rule" and Deemed Passage of Legislation

And this is consistent with INS v. Chadha and with Clinton v. New York
-- how?

David Wagner

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Chris SCHROEDER
> Sent: Friday, March 12, 2010 8:33 AM
> To: conlawprof at lists.ucla.edu; Mark Scarberry
> Subject: Re: "Slaughter Rule" and Deemed Passage of Legislation
> 
> As I understand her idea, it goes like this:  Before major legislation
> is brought to the House floor, it is typically preceded by a Rule that
> governs various procedural and other details on the floor, including
> such things as what amendments will be in order, what time will be
> permitted for debate, whether points of order have been waived, etc.
> The Rule is put together by the Rules Committee and it has to be voted
> on by the entire House prior to the bill if it is to govern the House
> debate.  One type of Rule is the self-executing rule, whereby if the
> House votes to adopt the rule, it also agrees to pass something else.
> In other words, two different legislative items are bundled together
> and passed with one vote.  I gather that Congresswoman Slaughter is
> proposing a version of the self-executing rule, whereby the Rule would
> establish that the vote on a reconciliation bill (or a so-called
> corrections bill) would be counted as a vote on the Senate health care
> bill simultaneou!
>  sly.  This bundling will be explicit in the Rule so that members will
> know that the votes they cast will have this effect.  I have never
> thought much about the constitutionality of this procedure, but the
> House uses a single vote to enact multiple, unrelated laws with some
> frequency, for instance in omnibus bills that get enacted at the end
of
> a session, or in continuing resolutions that keep the entire federal
> government functioning temporarily.  I would think that an objection
to
> the kind of Rule that Slaughter is proposing might bring down these
> other common practices as well.
> 
> Chris
> 
> >>> "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> 3/11/2010 8:55
PM
> >>>
> I'm trying to figure out just what would be involved with House Rules
> Committee Chairwoman Louise Slaughter's suggestion that the Senate
> health care reform bill could be deemed passed by the House if the
> House
> passes a bill amending the provisions of the Senate bill. Perhaps
> someone on the list knows enough to be able to explain the details of
> what is being proposed. Perhaps others on the list then would have
> comments on the constitutionality of such a "deemed" passage, which
> seems highly dubious to me, to the extent I understand the proposed
> process.
> 
> Mark Scarberry
> Pepperdine
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