If Deem and Pass or “self-executing rule” is Unconstitutional Why Have Republicans Used it So Often

The arms race of rules

The conservative case against “Deem and Pass” is getting very complex, very fast. Yesterday, the argument was that it was flatly unconstitutional. But it turns out that Republicans used Deem and Pass dozens of times while they were in power. So today’s furor is that Nancy Pelosi and Louise Slaughter joined Public Citizen in a lawsuit arguing that a bill that George W. Bush signed was invalid because Deem and Pass is unconstitutional. But the court ruled against Public Citizen, Pelosi and Slaughter. Deem and Pass, well, passed. And now Democrats are using it, too.

The Right is calling Speaker Pelosi a hypocrite. That’s a strange new definition of hypocrite. Republicans, while in the majority used deem and pass (self executing rules) to pass far more legislation than Democrats. The courts ruled that it was OK. How The honorable Speaker is simply using the brick bat Republicans created to beat them with. I’m not particularly a proponent of spiteful behavior and in this case, considering Speaker Pelosi’s record of looking out for middle and working class Americans, she feels that the parliamentary procedure, having been used by Republicans and ruled legal, is a legitimate way to proceed. Is she having the last laugh. For now anyway. As Ezra points out much like reconciliation these parliamentarian battles are largely about the minority party versus the majority party. Unless the Senate in particular does something about its rules – a super majority of 55 rather than 60 seems more reasonable for example – than both parties are free to use any trick they have up their sleeve. Remember that Conservatives used reconciliation more than Democrats and now they’re using every hyperbolic attack that can fly out of Glenn Beck and Mitch McConnel’s(R-KY) back-side to demonize reconciliation. Then publicly proclaimed they would use parliamentary tricks ( amendments) to stop reconciliation of health care reform. Considering recent history of both the use of “Deem and Pass”, reconciliation and abuse of the implied filibuster, its difficult to be too damning of Speaker Pelosi should she chose to use all the legislative weapons at her disposal.

Time has a blog post up on the current history of self-executing rules. The Slaughter Solution? Another name might be the Dreier Doctrine.

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.

As the director of the Woodrow Wilson Center’s Congress Project (and former staff director of the House Rules Committee) says, I don’t like the rules, but as we can see they’re not unconstitutional. If they are the Republicans that used them will surely turn themselves in to the U.S. Marshall’s office immediately. Michelle Malkin will be bringing some of the fish she says she catches so prison life should be a little more tolerable.

Jack Balkin is not crazy about deem and pass either, but does see a way that it could be done with health care reform that does pass the Constitutional test, Is Deem and Pass Constitutional?

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.

Balkin is a lawyer so it is best to read all his what ifs and caveats. He is certainly correct that because of Article I, section 7 Pelosi might be giving conservative Democrats rhetorical cover with deem and pass, but in legal terms it will be as though those conservative Democrats did vote for the Senate bill. Once health care reform passes even Rep. Stupak(D) will be scrambling to take a share of the credit and regardless of the way it passes Republican will try to use it against them. I can see the ads now – Democrats got 30 million more Americans health care coverage, did away with insurance companies dropping people with preexisting conditions and helped control spiraling health care costs, don’t vote for those rascals. They’ll get the tea smokers vote.

Long Exposure Expressway City Lights wallpaper

city lights

Long Exposure Expressway City Lights wallpaper. For those that don’t know, long exposure photos are where the photographer manually keeps the lens open for longer than a regular still shot. It could be 15 seconds or two minutes. What’s captured is the changes in light over the time the lens is open.

Ray McGovern shames John Yoo. We have to assume that Yoo has enough of a conscience to be shamed – Yoo Besmirches Legacy of Jefferson

Sadly, the guarantees embodied in five of those first ten amendments – and in the Constitution itself – have been eroded by dubious theories promoted by Yoo, like his concept of an all-powerful “unitary executive” who can do whatever he wants to anyone unlucky enough to be judged an “enemy” by the leader during “wartime,” even an open-ended, ill-defined conflict like the “war on terror.”

Not even the Great Writ of habeas corpus escaped Yoo’s sophistry – the fundamental right, wrested from King John of England in 1215, to seek judicial relief from unlawful detention. Even King George III was constrained by habeas corpus, and Madison and Mason were careful to include that basic guarantee in the Constitution itself (Article One, Section 9).

But Yoo and some fellow lawyers saw the ancient legal right as impinging on President George W. Bush’s unlimited powers.

After the 9/11 attacks, Yoo propounded theories that elevated Bush beyond the bounds of federal or international law. As Yoo has acknowledged, his opinions could allow the President to crush a child’s testicles to get his father to talk, or to willfully annihilate a village of civilians.

“Sure,” Yoo responded when a Justice Department investigator posed the latter hypothetical.

Many are aware of John Yoo’s role in serving up legal “justification” for “enhanced interrogation techniques,” including the near-drowning of waterboarding. But fewer know that the Convening Authority for the Military Commissions at Guantanamo, military judge Susan Crawford, has said that those techniques meet the “legal definition of torture.”

Joe Conason look at conservative wunderkind Rep. Paul Ryan’s budget blueprint. Ryan’s proposal’s are a step by step guide on how to continue the Bush-Neocon legacy of national financial ruin – Paul Ryan’s populism: Raising taxes on the middle class. Conason’s column is the easily digestible version of a report he links to by The Center on Budget and Policy Priorities,  The Ryan Budget’s Radical PrioritiesProvides Largest Tax Cuts in History for Wealthy, Raises Middle Class Taxes, Ends Guaranteed Medicare, Privatizes Social Security, Erodes Health Care

Contrary to claims that the Ryan plan is fiscally responsible — which reflect a misunderstanding of CBO’s analysis of the proposal — the plan would leave the federal budget in dire straits for decades as a result of its massive tax cuts for wealthy households and its diversion of Social Security payroll taxes to private accounts. The plan attempts to reduce deficits and debt many decades into the future by making deep cuts in Social Security’s defined benefits and by eliminating guaranteed Medicare benefits and substantially cutting back on medical assistance for low-income families and seniors. Yet even with these sweeping changes, the plan fails to achieve its fiscal goal, since federal debt under the proposal would rise over the next four decades to unsustainable levels far in excess of 100 percent of GDP. The proposal also would seriously erode employer-sponsored health insurance coverage for working Americans and their families without instituting the accompanying reforms in health insurance needed to create a viable substitute. All in all, the Ryan Roadmap charts a radical course that, if they understood it, few Americans likely would want to follow.

Medicare and Republicans. It’s like playing an old game of Pong. They go back and forth. One day their panties are in a knot because of their imagined cuts that will kill grandma and the next day they’re making cuts so deep they’d bankrupt the program. Ryan – who has been described by the media and Republicans as a rising star of movement conservatism for longer than I can remember – also brings us Bush’s privatization of Social Security 2.0 where let’s give Wall St. our Social Security funds, you know, as a reward for their bombastic raid on the nation’s wealth. The tea baggers like Ryan. The tea baggers are supposedly populist who do not think they should have to reward Wall St’s mistakes. So Ryan and his plan is just another chapter of policies and prescriptions where much back pedaling and rationalization is required. Ryan does know that Social Security is an insurance program, not an investment program? He’s a tea bagger conservative rising star that’s all that matters.