By MICHAEL W. MCCONNELL
In just a few days the House of Representatives is expected to act on two different pieces of legislation: the Senate version of the health-care bill (the one that contains the special deals, "Cadillac" insurance plan taxes, and abortion coverage) and an amendatory bill making changes in the Senate bill. The House will likely adopt a "self-executing" rule that "deems" passage of the amendatory bill as enactment of the Senate bill, without an actual vote on the latter.
This enables the House to enact the Senate bill while appearing only to approve changes to it. The underlying Senate bill would then go to the president for signature, and the amendatory bill would go to the Senate for consideration under reconciliation procedures (meaning no filibuster).
This approach appears unconstitutional. Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.
Rep. Louise Slaughter (D., N.Y.), chair of the House Rules Committee and prime mover behind this approach, has released a letter from Yale Law School's Jack Balkin asserting 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.
Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.
Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.
Whether the courts would entertain such a challenge is a harder question. The "enrolled bill doctrine," announced by the Supreme Court in Marshall Field v. Clark (1892), holds that the courts will not question whether a bill certified as having passed both houses of Congress was properly enacted. More recently, in United States v. Munoz-Flores (1990), in a footnote, the Supreme Court stated that Field concerned only the "evidence" the courts would consider in such a challenge and that when "a constitutional provision is implicated," the enrolled bill doctrine would not apply. These holdings are not easy to reconcile. The D.C. Circuit, in a 1995 case, essentially said that it did not understand the Munoz-Flores footnote and thus would not follow it.
The Supreme Court might well hold that Field governs only questions of historical fact, while Munoz-Flores governs questions of constitutional interpretation. In Field, the question was what text passed the two houses of Congress; there was no doubt that only what the two houses passed could be treated as law. Here, by contrast, there will be no dispute about what occurred in the House; the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, "The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . ."
One thing is sure: To proceed in this way creates an unnecessary risk that the legislation will be invalidated for violation of Article I, Section 7. Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.
Mr. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center.
