Andy McCarthy, who has yet to meet a torture technique he doesn’t love, has a long, long, looonnng article at NRO bemoaning the “Slaughter of the Constitution” (it’s a pun — get it?) via the constitutional travesty known as “deem and pass” (or the self-executing rule — which, come to think of it, sounds like a torture technique Andy should know about, if he doesn’t already). Anyway, here is the constitutional scholar now:

At the Examiner, Mark Tapscott points out that when the Republican-controlled Congress used a “self-executing” rule very similar to the “Slaughter rule” to raise the debt ceiling in 2005, Rep. Louise Slaughter — along with Rep. Nancy Pelosi and Rep. Henry Waxman — went to court to try to reverse it, arguing that it was a blatant violation of the Constitution’s procedure for passing legislation (art. I, sec. 7).

The bad news for present purposes is that they lost the case. The D.C. Circuit in Public Citizen v. U.S. District Court upheld the procedure. Upheld in this case does not mean endorsed. The Court did not say the self-executing rule was constitutional. It said it could not reach the question due to the standards of deference that apply between departments of government: If the presiding officers of both houses of Congress attest that their respective chambers have passed a piece of legislation, the Court is required to accept those representations as conclusive.

That doesn’t mean it is proper for government officials to execute a procedure that violates the Constitution, nor does it mean that a presiding officer should attest something that is not true. It does, however, suggest that it may be an uphill battle to get a court to declare the process null and void.

Mark is correct to point out that raising the debt ceiling is (regrettably) a routine, uncontroversial practice. Byron made a similar point yesterday in running down the handful of times the “self-executing” procedure has been followed. The key here is that in each instance, at issue was something that was non-controversial or almost ministerial — not, as with heathcare, an unpopular, bitterly opposed, ragingly controversial socialization of the private economy.

“Unpopular, bitterly opposed, ragingly controversial socialization of the private economy.” Er, right. The only thing that’s raging here is Andy McCarthy’s fevered delusions.

Also, of course, IOKIYAR:

For a while, Republicans were awfully worked up about using the reconciliation process to pass a health-care related budget fix, despite the GOP’s repeated use of the same procedure. Now Republicans are headed for the fainting couch over use of the self-executing rule, despite the GOP’s repeated reliance on the same procedure.
[…]
In a nutshell, the House would vote once — approving the sidecar measure and “deeming” the Senate bill as having passed. The Senate bill would then head to the White House for a signature, while the budget fix would head to the Senate.As expected, the responding tantrum is nearing full force. The WSJ editorial page is outraged; Rep. Michele Bachmann (R-Minn.) is suggesting laws approved through the self-executing rule aren’t laws that Americans have to follow; and assorted GOP voices, on and off the Hill, are characterizing the deem-and-pass approach as unconstitutional.

Of particular interest were complaints from Rep. David Dreier (R-Calif.), the ranking member on the House Rules Committee, who called use of the self-executing rule “very painful and troubling.” It’s interesting — Dreier found the rule neither painful nor troubling when he used it in 2006.

Quite understandably, given the speed with which events are moving and the obscurity of these procedural rules, lots of people (including yours truly) have been and still are very confused about what is being done and for what reasons. As usual, Ezra Klein provides help for the befuddled (emphasis is mine):

The issue is how to sequence the Senate health bill, which the House doesn’t like, with the package of fixes (including, Pelosi said, the elimination of the Nebraska and Florida deals, the delay of the excise tax, more affordability and oversight provisions and more funding of community health centers), which the House does like. There are a number of procedural options on the table, but today, Pelosi said that she favors the “deem and pass” strategy.Here’s how that will work: Rather than passing the Senate bill and then passing the fixes, the House will pass the fixes under a rule that says the House “deems” the Senate bill passed after the House passes the fixes.

The virtue of this, for Pelosi’s members, is that they don’t actually vote on the Senate bill. They only vote on the reconciliation package. But their vote on the reconciliation package functions as a vote on the Senate bill. The difference is semantic, but the bottom line is this: When the House votes on the reconciliation fixes, the Senate bill is passed, even if the Senate hasn’t voted on the reconciliation fixes, and even though the House never specifically voted on the Senate bill.

It’s a circuitous strategy born of necessity. Pelosi doesn’t have votes for the Senate bill without the reconciliation package. But the Senate parliamentarian said that the Senate bill must be signed into law before the reconciliation package can be signed into law. That removed Pelosi’s favored option of passing the reconciliation fixes before passing the Senate bill. So now the House will vote on reconciliation explicitly and the Senate bill implicitly, which is politically easier, even though the effect is not any different than if Congress were to pass the Senate bill first and pass the reconciliation fixes after. …

Is all of this constitutional? The answer, according to Jack Balkin, seems to be: possibly not, but it can be made constitutional:

… The argument is simple: To satisfy Article I, section 7’s requirement of bicameralism and presentment, both houses must pass the same bill for the President to sign. If they pass different bills, no law is created, even if the President signs both.
[…]
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.

Kathy Kattenburg

PAST CONTRIBUTOR.