Does presidential signing order matter with regard to health bill?
Mark.Scarberry at pepperdine.edu
Sat Mar 20 14:46:45 PDT 2010
I could never find the text of what the Slaughter Rule was going to be. At times it seemed it was going to provide that the vote for the Senate bill would be effective only if the Senate passed the reconciliation bill; perhaps that was going to be accomplished by the Speaker holding the Senate bill and not allowing it to be presented to the President until and unless the Senate passed the reconciliation bill. That seemed to create problems with delegation of power to the Speaker. At other times it seemed that there was going to be a vote only on the reconciliation bill, with the rule previously having been adopted that the vote on the reconciliation bill would be deemed to be a vote for the Senate bill. That created its own problems, some of us thought. I suppose all of this is now moot, at least temporarily, with the House leadership abandoning the Slaughter approach, whatever it would have been.
But suppose now that the House passes both the Senate bill and the reconciliation bill separately, that the Senate passes the reconciliation bill, and that the President then signs them both.
**Does it matter which he signs first? **
Suppose he chooses to sign the reconciliation bill first. Then it becomes law, first, but then when he signs the Senate bill then the Senate bill becomes law. Wouldn't conflicting provisions then be resolved in favor of the bill that became law later, the Senate bill?
So is there a delegation to the President of what the law will be, based on which he signs first? Perhaps that's not a problem, since the President could just choose to sign the Senate bill and veto the reconciliation bill, but this does give the President a way of choosing the Senate bill over the later-passed reconciliation bill without having to veto the reconciliation bill. In fact, he gets to choose to put into law all the parts of the reconciliation bill that aren't in conflict with the Senate bill, or alternatively to put into law the entire reconciliation bill, depending on which he signs first. At least that would be the result under the usual approach that the bill that becomes law later will govern over the bill that becomes law earlier. Something about that does not seem right; it's not quite a line item veto, but is it perhaps a delegation of power to the President contrary to the structure of the Constitution?
Suppose the President signs them both, as he presumably has pledged to do. But suppose he signs the reconciliation bill first and then later concludes, with an "Oh what a surprise!", that the Senate bill's provisions prevail over the conflicting provisions of the reconciliation bill. It would just be an "accident" due to the order of signing. All the House members who voted for the health bill in reliance on the reconciliation provisions would be told, "The President did what he pledged to do; he signed both bills. But the law leaves us with the provisions you wanted not being effective. Well, that's the law."
Or am I being too cynical?
From: conlawprof-bounces at lists.ucla.edu on behalf of Steven Jamar
Sent: Sat 3/20/2010 1:08 PM
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: House leadership drops idea of deeming Senate bill passed
no doubt this decision is a direct result of our discussion. :)
On Sat, Mar 20, 2010 at 4:04 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu> wrote:
Quoting from the Wall Street Journal's webpage:
Democrats Plan Straight Vote on Health-Care Bill
House Democratic leaders will hold an up-or-down vote on the health-care overhaul bill approved by the Senate, dropping an idea that would have "deemed" the bill passed with adoption of a smaller companion bill, House Majority Leader Steny Hoyer said. ...
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Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
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