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Sunday, April 03, 2011

Beldar finds surprises in the Congressional Record about H.R. 1255, but no clear rebuttal of Dems' (and others') constitutional critique of it

The Congressional Record of April 1st's floor proceedings in the U.S. House of Representatives includes a very long floor discussion of H.R. 1255, about which I posted earlier today. Much of it is typical partisan sniping along the lines of "You mean old Republicans haven't passed any bills creating jobs and now you won't compromise" or "You spendthrift Dems created this problem because you couldn't pass any budget at all for FY2011, so we're having to force the Senate to act."

But some portion of the Democratic members' discussion must be read as fairly — and fairly persuasively — raising the question of H.R. 1255's failure to gain, and perhaps even to seek, Senate approval or a presidential signature. If the GOP had a persuasive answer to that complaint, I sure couldn't find it in the floor debate. There are hints of an argument, hints maybe of precedent. There's a repeated and clear profession of intention on the part of many House Republicans that H.R. 1255 not be self-enacting, and that it instead would require Senate approval, and then either a presidential signature or a veto override, to become law. So maybe there's a procedural or parliamentary argument I just haven't read, heard, thought of, or (possibly) understood.

But then, too, there was also a short and very unequivocal statement by one House Republican — Rep. Louie Gohmert (R-TX) — that he believes H.R. 1255 to be unconstitutional.

The only excuse I can make for the length of what follows is that what I've left out would make it five or six times longer if included. I've tried to be fair and judicious in my selection of what to include, but I can't guarantee against an inadvertant shortfall in that regard. If I misunderstood or didn't know what something was, it's entirely possible that I wouldn't have recognized it as relevant and might not have included it.

I'll quote at length the best of the Dems' objections and complaints that are relevant to the "skipping the Senate and the POTUS" argument — from Rep. Louise Slaughter (D-NY) — below, but I want to proceed in roughly chronological order corresponding to how the various arguments were made on the floor.  So first, here's the best I can find by way of a GOP response before the first vote:

Mr. [Rob] WOODALL [R-GA, H.R. 1255's principal sponsor] ... This bill does two things, the underlying legislation does two things: It both gives the Senate an opportunity to come out from under its paralyzing inaction and pass H.R. 1 [i.e., the House GOP's "Full-Year Continuing Appropriations Act, 2011," which it passed in February]; and, it says that if the Senate does not, if the Senate fails to act — we are not asking the Senate to do exactly what we want them to do. We are asking them to act. If they fail to act, that Congress will not get paid. Congress will not get paid. My colleagues on the left won't get paid, my colleagues on the right won't get paid, and my colleagues in the Senate won't get paid....

Still fairly early in the morning, the first vote was held — "The vote was taken by electronic device, and there were — yeas 219, nays 172, not voting 41." But a "motion to reconsider was laid on the table." Rep. Woodall sought and received unanimous consent that all members would have five days to revise and extend their remarks. And then, after another statement about how the budgetary delay and uncertainty is hurting the economy and costing jobs, came this:

Mr. WOMACK [R-AR]: ... Madam Speaker, this has to stop. The political gamesmanship going on in the upper Chamber might make for good headlines in the capital press, but it is hurting our Nation. That's why I've offered this bill to self-impose a deadline on Congress, and I'm asking my colleagues to join me in supporting H.R. 1255 to start the clock on the Senate to pass something we can agree to in funding government for the remainder of this year by April 6, or assuming a government shutdown, expect to have our pay withheld until we can reach agreement.

Here's a YouTube clip which includes that:

You can see that the House was almost empty, as is typical. I think this was for the TV cameras back home. Throughout the day, the Congressional Record references the voting being done electronically, and I'm mildly ashamed not to be up-to-date on whether that means members had to return to the floor to vote, or whether they could do it remotely (e.g., from their offices).

Next, one of the rather more articulate attacks, from which I'm going to quote at length because it also effectively summarizes all of the arguments made by other Dems on the subject we're exploring:

Ms. [Louise] SLAUGHTER [D-NY]: ... Madam Speaker, over 200 years, the House of Representatives has seen almost everything. From the days as a young nation, to modern day America, the exchange of ideas and the debate of legislation is a rich and proud tradition that moves our country forward. Unfortunately, today's legislation abandons this proud history and marks a new low in the United States House of Representatives. As you know, the new majority started off the session with reading every section and every piece of the Constitution of the United States to show our reverence for it, but this morning that Constitution has been kicked under the couch out of sight, lest its presence in the room restrict what is attempting to be done here today. Indeed, this legislation proposes that we throw away 200 years of legislative history and upend the fundamental process of how a bill becomes law.

Despite the urgent and dire issues facing our constituents, here we are, the U.S. House of Representatives, considering legislation that has no chance of becoming law. Today's legislation would "deem" a bill that the Senate has already voted down as passed by that very Senate. It would take a remarkable mind to even come up with such an idea. This notion, while clever, will never pass through the U.S. Senate. And let me remind you that what we're doing this morning, saying that we're going to bypass the Senate, would not do anything at all unless the Senate passed it of themselves saying, forget about us. It's simply not going to happen.

I'm intrigued by the "while clever" comment. It makes me think there's some at least arguable procedural cleverness to what the GOP was doing. I just don't know what, yet, that might have been. But Rep. Slaughter was just getting going, and continued with this:

The Republican majority claims this bill is a solution to a government shutdown. I hope that discussions regarding the solution to a government shutdown are taking place in offices between Senate and House Members and representatives of the administration as we speak. They are the people who can avoid that. The majority claims this bill is a solution, as I said. If this is their only solution, America is in big trouble. The solution to a government shutdown is to meet the Democratic Party at the negotiating table, not to propose scrapping the entire legislative process simply because the majority party refuses to tell the right wing of their party "no."

I am sad to say that today's legislation is more befitting an entry to Grimm's Fairy Tales than to this august body. I think it demeans the House to pretend to do the impossible, to pretend to do what we can't. Does the majority believe that majority confers supernatural powers upon them to bypass the United States Senate?

In the House of Representatives, there are written rules for how the legislative process proceeds, rules that were crafted by Thomas Jefferson, rules that have been tried and true since the founding of this legislative body. These rules have helped lead our country through debates much more fractured than this. From civil war to civil rights, the rules of the House have seen us through struggle and strife and kept our country strong. Today's bill would throw away these rules and very much upset Thomas Jefferson.

Every one of us knows as schoolchildren that there is no way for a bill to become law without both chambers acting on it, a conference committee to meet if necessary, and the signature of the President of the United States. I wish that I were not standing here having to explain to my colleagues how a bill becomes law. I said yesterday, and I must say it again, that I hope we have warped no children's minds. Anyone who may be watching the perversion of the process today and any teachers who are guiding children through this process, take courage, because you can see the video that will explain once again, "I am a bill." Never before has anyone seriously considered the idea that one House can pass a bill and decide it will be the law of the land. Hopefully no party will ever try such a far-fetched tactic again.

Rep. Slaughter — who chaired the House Rules committee in the last Congress — next remains polite, but also gets sorta-kinda personal about how ObamaCare got passed:

Just last year, the procedure to "deem and pass" legislation through the House was derided by Republicans as the "Slaughter Solution," a procedure we ultimately chose not to use. At the time, Speaker Boehner called the deem and pass process "an affront to every American." Now he brings his own "dream and pass" legislation to the floor.

There was considerably more back and forth from various members, apparently including at least some reading aloud of the Constitution, but then Rep. Woodall weighed back in on the topic that this post is about (boldface mine):

Mr. WOODALL: ... There is no deeming in this bill. And I give my colleagues on the other side of the aisle the benefit of the doubt that they know that and that is just the spin for today.

There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn't want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President's desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.

Now, that is critically important; one thing and one thing only this bill does: gives the Senate the opportunity to say, you know, for whatever reasons — and the reasons are still a mystery to me — we can't pass legislation in the Senate. We can defeat things all day long, but we can't pass anything. I'm not sure why that is. This bill says: but none of us want a shutdown.

Now, I have got to be honest, Madam Speaker. I am beginning to wonder if "none of us want a shutdown" is actually a true statement, because there are some folks who seem to be driving us right down that road.

This is a bill that just gives us another option, another arrow in our quiver to say, if you cannot act, Senate, if you are paralyzed by inaction, pass this bill, and we will continue those negotiations while H.R. 1 is the law of the land.

I would like to understand this. I don't; it seems to contradict itself, and potentially also to contradict what Rep. Woodall said specifically about "deeming" at the end of the day (see below). But then there's this (boldface mine):

Mr. WOODALL: Madam Speaker, I yield myself 15 seconds to say what I fear will fall on deaf ears, and that is that H.R. 1255 will not become the law of the land until the Senate passes it and the President signs it. The Senate passes it and the President signs it. That is the only thing we're talking about doing here today.

Alrightee! "Ding-ding-ding," my friend Milhouse will surely say, "This validates my theory that even the House GOP expects H.R. 1255 to be only a House-passed bill — and not an enacted law — unless and until it goes through the regular process!" What it doesn't do, unfortunately, is explain how that intent was embodied in the language of H.R. 1255.

Thereupon Rep. Sheila Jackson Lee (D-TX) accused Republicans of "killing off seniors and those in classrooms" with the spending cuts they're demanding. Seriously, she said that on the floor of the U.S. House of Representatives — and it's just so very Sheila! that nobody really bothered to notice. I'm surprised she didn't take the opportunity to allege that George W. Bush steals Girl Scout cookies.

It appears that after a bit more back and forth, there were two more votes on motions to reconsider, with the GOP holding its majority each time.

In the afternoon, Majority Leader Eric Cantor spoke about the need for action on a budget bill, but if he directly defended or explained the constitutionality of H.R. 1255 as against the Democrats' arguments that it purports to skip Senate or presidential approval, I couldn't find that passage. But of course, many others spoke too when the time allotments began to get really tight, typically only two minutes (boldface mine):

Mr. [Tim] GRIFFIN [R] of Arkansas: ... I would like to say real quickly that what we have seen here in the last few minutes is a colossal waste of time. You had a bunch of folks saying, Madam Speaker, that this is unconstitutional. I just want to clarify so we can move past that and my colleagues can focus their arguments where it matters.

We intend for this bill, like all other bills, to pass the House, to pass the Senate, and be signed by the President. I too am a JAG officer from the Army, and I think that the JAG officer, Madam Speaker, from the Air Force would understand that this is a constitutional bill, like the other bills that we introduce here.

Again, a strong statement of intent that H.R. 1255 not be read to be self-enacting without passage in the Senate, but no real explanation of how that's so.

But then, after a typically nasty but otherwise unoriginal set of remarks by Minority Leader Pelosi, we eventually come to a GOP up-and-comer in the House who has a surprise (again, boldface mine):

Mr. [Louie] GOHMERT [R-TX]: We're here because the Democratic majority last year did not do their job, did not give us a budget, did not due proper appropriations, and now the Senate has had the same problem. So I applaud anybody's efforts in trying to move the ball down the road so that we can appropriate. I just wish the Senate would do their job now and take care of it. But for a bill to say provisions that pass the House are hereby enacted into law violates my conscience and the Constitution. I cannot vote for it.

So if there's a GOP rationale, Rep. Gohmert didn't get the memo, or else found it unpersuasive. Rep. Gohmert was a state-court trial and appellate judge before he upset long-term Dem Congressman Max Sandlin in 2004, and he's been reelected three times, most recently (in 2010) as a Tea Party favorite. He's one of my favorites from what I think is a pretty strong Texas GOP delegation in the U.S. House of Representatives. But he certainly didn't equivocate over this vote, nor clam up about his reasons for it. And you can bet that a series of Democratic Reps then proceeded to throw Rep. Gohmert's statement back in the GOP members' faces with gusto and glee (as I'm sure he knew they would).

But wait! There's more!

Mr. [David] SCHWEIKERT [R-AZ]: ... It has been fascinating. I accept that I'm a freshman, and I know it's April Fool's Day, but it's been funny hearing the discussion about how this isn't constitutional.

Now, let me see. I'll walk through this.

It's a piece of legislation with a trigger mechanism in it. Okay. I know the other side does not like that trigger, but it still would require the Senate to pass it and the President to sign it....

And then Rep. Woodall makes the same argument (I think) that Milhouse has been making from the text of H.R. 1255:

Mr. WOODALL: ... [S]o I'll just read one more time:

Having passed the House, having passed the Senate, and be signed by the President.

That's the regular order.

Next follows a cameo by a book sold in the Congressional Gift Shop, "House Mouse, Senate Mouse." Man, I thought bloggers were snarky until I read this debate.

And finally, a lengthier summing up by Rep. Woodall, from which I'll omit the further "Schoolhouse Rock: I'm a Bill" references:

I just want to read from the bill. It saddens me. I'm so thrilled that so many Americans watch what we do here on the House floor to hold us accountable, and I'm so saddened by all the misinformation that's circulated. I read here directly from the bill:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the Departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House, are hereby enacted into law."

This bill that we send to the Senate, for the Senate to pass, and the President to sign, those provisions are hereby enacted into law. Now, I just want to study that a little bit closer. If the House has not received a message from the Senate stating that the Senate has passed a measure providing for the appropriations of the United States Government.

Folks may be wondering, Madam Speaker, why is it that we're doing that now? Wasn't that supposed to be done last September? Yes, it was....

He moved on to other topics, but was interrupted (boldface mine):

Mr. [Alcee] HASTINGS [D] of Florida: I just have a question. Do you really believe that what you're doing is constitutional?

Mr. WOODALL. Absolutely. I appreciate your asking. I appreciate your asking because having had my motives impugned throughout the day, and I know with the collegial relationship that you and I have in the Rules Committee, you know for a fact I wouldn't be here otherwise. I wouldn't be here otherwise.

Now, I'm no scholar of House activities. I know we have passed bills in this House that have incorporated things by reference before, and I'm sure we will do it again, not outside the process. To suggest — and you appreciate this, I say to my friend from Florida — to receive constitutional instruction from the team that brought us ObamaCare is troubling at the most basic levels.

Mr. HASTINGS of Florida. Will the gentleman yield again for yet another question?

Mr. WOODALL. I would be happy to yield to the gentleman.

Mr. HASTINGS of Florida. Do you have any precedent for the constitutionality of this particular measure? And I urge you based on what you just said, there have been measures that were deemed, but that was when they were agreed upon, but there is no authority anywhere for us to pass a law requiring of the United States Senate to undertake to do something, and I appreciate my colleague yielding.

Mr. WOODALL. Reclaiming my time, I will say that this is a unique procedure and these are unique times.

Mr. HASTINGS of Florida. Unique and unconstitutional.

Mr. WOODALL. But I will just say to you that in 1999, a Republican Congress, a Democratic President, enacted the foreign relations authorization bill, by reference, in an appropriations bill. That's what we're doing today.

There's the hint of a precedent, but I don't know its details, nor whether it's genuinely apt and on point. Someone's obviously explained it to Rep. Woodall, but it's just as obvious that he couldn't repeat any of the details of that explanation.

Rep. Woodall earlier insisted that H.R. 1255 does no "deeming," and that's confusing, because the whole point of "incorporation by reference" is that you "deem" something to be written into one document that actually is only written out in full in some other document. Particularly from Rep. Slaughter's defensiveness, I'm guessing that by insisting that there's "no deeming," Rep. Woodall meant to distinguish this situation from the way ObamaCare ultimately was passed.

I think this is the YouTube clip of Rep. Woodall's closing:

And after another half hour or more of entirely repetitive argument by the Dems that wasn't nearly as polite, eloquent, or persuasive as Rep. Slaughter's had been, there were more votes, and votes about votes, all resulting in H.R. 1255 being re-passed and re-re-passed by the House.

Perhaps my friend Milhouse will find nuggets I've missed in what I've quoted, or in the full text I've linked but not quoted, to support his take on this. I hope so; as I wrote at Patterico's, "I’m not much of a parliamentarian, so I’m going to hold out hope for an explanation that relies on some very technical provisions of the House Rules or some prior full-fledged statute which would put a whole ‘nuther complexion on this." There are hints of prior precedent that the GOP may be relying on, and having read only a little bit between the lines now, I'm quite sure that someone on the GOP side did indeed study this issue before the bill was filed, and there is some kind of procedural argument why it's valid. But I haven't read that memo.

Rep. Woodall did a nice job for a rookie of arguing the policies and political intentions behind the bill (and an excellent job of keeping his temper and remaining courteous even when mocked), but he did a damn poor job of trying to knock down the Dems' arguments. If there is a way to knock them down, Speaker Boehner needs to designate someone else to do that, and soon. (I nominate Fred Thompson, who of course is no longer in Congress, but has a better screen presence, and better communication skills, than anyone who still is.)

Posted by Beldar at 10:02 PM in Congress, Law (2011), Politics (2011) | Permalink

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Comments

(1) boris made the following comment | Apr 3, 2011 10:45:38 PM | Permalink

Suppose (arguendo) the language that appears to make the bill self enacting can be parsed according to Milhouse rules. And yet the appearance is intentional.

They public may be inclined (tricked?) into asking "why is the government shut down when the congress passed a self enacting budget?"

The expected democrat response would be "the government is shut down because congress can't pass a budget by itself, it needs our approval and we refuse". Forces them to take credit for a shutdown.

(2) Milhouse made the following comment | Apr 3, 2011 11:17:24 PM | Permalink

Throughout the day, the Congressional Record references the voting being done electronically, and I'm mildly ashamed not to be up-to-date on whether that means members had to return to the floor to vote, or whether they could do it remotely (e.g., from their offices).

They have to vote from the floor. (Though it is possible for a member to push another member's button, thus voting on his/her behalf, either with or without permission. This is against the rules, and quite possibly against the law, but I don't know how tightly this is enforced. There was a huge scandal in Israel a few years ago, when a member of Knesset was caught on camera voting for a colleague who'd stepped out for a potty break.)

(3) Boyd made the following comment | Apr 3, 2011 11:20:57 PM | Permalink

I tend to agree with Milhouse, and here's my own take on all of this: HR 1255 is, by turns, 1) a bill to provide political cover to the House majority when the continuing resolution runs out, b) a reasonably innovative way to accomplish this desired end, and iii) a terribly written piece of legislation if the above is what they wanted to accomplish.

Granted, I'm not a lawyer or a politician (note to self: thank God for both of these in tonight's prayers), but some would believe that those two "deficiencies" actually give me a leg up on most elected officials.

(4) Milhouse made the following comment | Apr 3, 2011 11:41:48 PM | Permalink

Alrightee! "Ding-ding-ding," my friend Milhouse will surely say, "This validates my theory that even the House GOP expects H.R. 1255 to be only a House-passed bill — and not an enacted law — unless and until it goes through the regular process!"

Indeed. And Woodall, as the bill's principal sponsor, ought to know what it says and does.

What it doesn't do, unfortunately, is explain how that intent was embodied in the language of H.R. 1255.

How about the very first line: "Be it enacted by the Senate and House of Representatives"? What more do you need? What other language have you ever seen in any bill, on any subject, that requires it to go through the usual process of enactment? Why would bills include such language? They're legislative bills after all, and we all know how they become (or don't become) acts. They don't have to keep saying it over and over again. The puzzle is why anyone imagines this bill is different.

Slaughter and Gohmert both sound like crazy conspiracy theorists, insisting that the bill purports to do something that's impossible, that the sponsor keeps telling them it doesn't, and that not a word in the bill implies that it does. Slaughter I can understand; she's just being cynical, like Michael Moore fanning the flames. She doesn't need to actually believe what she's saying. But I wonder whether Gohmert also believes that someone staged the 11-Sep-2001 attacks, the moon landings were faked, flouride is a mind control drug, or the Fed is a private company through which the reptiloids own the economy. You say he was a judge; if so I don't think much of his ability to read legislation. Did you ever appear before him, or have professional dealings with him?

Let me be very clear about this: the bill says that the provisions of HR1 "are hereby enacted into law". This is the language that Gohmert, and apparently you, find so troubling. Would you be just as troubled if it had said "the provisions of the President's Debt Commission's report", or "the provisions of the column by Mr John Smith published on page 12 of the Woop-Woop Times, Reporter, Mercury, and Examiner on 1-Apr-2011, and titled A Modest Proposal For Our Solons In Washington"? It could just as easily have done. A law may incorporate by reference text from any document; this text happens to come from a bill that the House passed. Doing so no more enables the House to unilaterally make laws than my other examples would bestow legislative power on a presidential commission or on a random editorialist.

(5) Milhouse made the following comment | Apr 4, 2011 12:29:06 AM | Permalink

Beldar and others have wondered what this bill could possibly achieve that HR1 didn't. If the Senate's ready to act on HR1 then it will, and if it's not then why would it pass this.

My answer was that there may well not be any difference between them, and it's not necessary that there be one; the House may simply be giving the Senate a second chance to vote on the same bill, meanwhile sending the public a message that it has passed a budget, twice, while the Senate has done nothing, and therefore the blame for any shutdown lies with the Senate.

But here's a clue that might point at a different answer:


There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn't want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President's desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.
[...]
This is a bill that just gives us another option, another arrow in our quiver to say, if you cannot act, Senate, if you are paralyzed by inaction, pass this bill, and we will continue those negotiations while H.R. 1 is the law of the land.

This sounds to me as if he's implying that HR1255 is temporary in a way that HR1 would not be. That passage of the exact same provisions in this form would allow negotiations to continue, while passage of the original bill would put an end to the process for the rest of the year. I'm not sure why that is; what is special about HR1 that its passage would foreclose negotiations and adjustment. But maybe it's something to do with the budget process, and the rules that both houses have adopted for budget bills. If HR1255 doesn't count as a budget bill for the purposes of those rules, then this may allow the Senate a way to resolve the immediate crisis without (as it may feel) giving away the farm.

This is all speculation, though. I don't know. And I'm happy with my original answer, that this bill simply duplicates HR1, and was passed for political purposes of which I approve.

(6) Beldar made the following comment | Apr 4, 2011 12:39:17 AM | Permalink

Milhouse I agree with most of what you're saying. I certainly have no problem with the general concept of incorporation by reference. I certainly have no problem with the preface language in all House and Senate bills that refers to a sort of latent "enactment" which only matures, in the ordinary course, upon the occurrence of some future event (like the passage of the same bill by the Senate and either the president's signature or a veto that's overriden).

You're right, too, that my problem for today's discussion is just with that key phrase, the extra "enacted" phrase. And I'd probably have no problem if the key phrase in H.R. 1255 were revised to read:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, then all of the provisions of H.R. 1 (as passed by the House on February 19, 2011, and incorporated herein by reference) may be relied upon and treated by the Senate, the President, the Judiciary, and anyone else as having been automatically re-passed by this House, such that those same provisions may immediately be passed as well by the Senate through passage of either this bill or H.R. 1, and thereafter presented to the President pursuant to Article I, Section 7 of the Constitution in the same manner as any other bill passed by both this House and the Senate.

I think that's what they were trying to do. I think that would have incorporated a clear, and probably valid, conditional re-passage — for whatever that's worth. I'm still not sure why or how it could be worth any more than H.R. 1 was worth to begin with; and I don't know what the senators were talking about when they claimed that H.R. 1 has already been rejected by the Senate, because that's not what the government website says about the status of H.R. 1.

Nor do I see how this in any way "forces" the Senate to vote on anything, be it H.R. 1255, H.R. 1, or any other funding measure. Whatever language it uses, or whatever it thinks it's doing or intends to do, the House can't enact a new law by itself.

So I'm inclined, I think, to agree with Boyd (#3) and others (over on Patterico's) who agree with you that there was never any intention to make a unicameral self-enacting law that avoids the Senate and the POTUS, but that this was just a dreadful piece of drafting and a not-much-better explanation for that on the floor.

To answer your question, I didn't work with or practice before Rep. Gohmert before he went to Congress. I suspect he and Ted Poe, another former Texas judge (who, again, I knew of but didn't practice before, since his court handled criminal cases exclusively), simply held the own partisans to the same standards for clear drafting as they'd hold their opponents. But that's completely a guess.

And unless there's some magical explanation that none of us have yet thought of, then at best the House GOP and, in particular, its leadership is guilty of good intentions ineptly attempted, and of being caught absolutely flat-footed when the Dems (led, capably if cynically, by Slaughter) blew it up on them. The Dems, of course, were being intensely hypocritical when they faulted the House GOP for not circulating this 72 hours before bringing it to the floor; based on their own recent and vastly more outrageous shenanigans (see, e.g., ObamaCare, again), they lack standing and are equitably estopped from arguing about a lack of GOP transparency. But perhaps if that had been done, someone would have caught and fixed the error before it reached the floor, or at the very least someone could have amended the key sentence to moot this entire controversy.

I understand the time pressures, but that's actually all the more reason not to put first-termers in charge of shepherding this through the House (even if a winning margin was virtually guaranteed). Rep. Gohmert gave his colleagues a conspicuous black eye, but it's because they stumbled into his fist. I would not have voted for this bill in this form either.

(7) Gregory Koster made the following comment | Apr 4, 2011 1:17:58 AM | Permalink

Dear Mr. Dyer: Many thanks for all the work you've put into this. My reaction on reading the bill was that it was unconstitutional. Milhouse's remarks made me think that there was something more to this than my first reaction allowed. Your work has done much to clear it up. But it's a bad bill that in its present form, should have been voted down. The Tea Party came into being demanding action and straightforwardness. This bill is not likely to be acted on, nor is it straightforward. Passing it merely confirms the equation:

Congress = tricky disingenuous scoundrels who are so caught up in "inside baseball" tactics that they'll let the country go to hell even while they pass less and less comprehensible bills.

That's not good for the Tea Party, the GOP, or the nation. Let the Dems keep their monopoly on bad faith tactics, done in the dark. The country needs action and this trickiness, while getting an A from any law school, isn't going to do the job.

If by some miracle the Senate were to pass it, let me point out that the Prez doesn't have to sign it for it to become law. All The One has to do is what he does best---nothing, while golfing, watching basketball and stuffing his snout---for ten days, and the bill will become law without his signature. This would continue his practice of voting "present" and be right in character.

Sincerely yours,
Gregory Koster

(8) Beldar made the following comment | Apr 4, 2011 1:27:24 AM | Permalink

Mr. Koster, thanks for the kind words. I don't think there was an intention by the House GOP to engage in what Rep. Keith Ellison (DFL-MN) described as "unconstitutional Washington 'tricknology' and 'trickeration.'" I put the time into trying to figure this out in hopes of finding a better explanation than that nearly the entire House GOP is clueless about, or defiant of, basic constitutional provisions. I'll settle for mere ineptitude, compounded by inexperience and haste. In other words, I think this wasn't a trick play, but a fumbled snap from center.

(9) Milhouse made the following comment | Apr 4, 2011 2:15:12 AM | Permalink

Beldar, the second "enacted" phrase is not extra. The language you propose —

may be relied upon and treated by the Senate, the President, the Judiciary, and anyone else as having been automatically re-passed by this House, such that those same provisions may immediately be passed as well by the Senate through passage of either this bill or H.R. 1, and thereafter presented to the President pursuant to Article I, Section 7 of the Constitution in the same manner as any other bill passed by both this House and the Senate

— is not only unwieldy, it's also misleading. The correct English and legal term for what this bill does to the provisions of HR1 (or rather would do to them if it were to become law, which it won't be) is "enact them into law". They may not merely be "relied upon and treated" as law, they would be law. That's what "enacted" means. The first "enacted" phrase refers to the whole bill; the second "enacted" phrase is what the bill does, among other things, which is to enact the provisions mentioned.

As I wrote earlier, you would surely have had no problem with the term "enacted" had the referenced document been a report or a column or even a blog post. Had the bill said "the proposal made by Mr William Dyer at http://beldar.blogs.com/beldarblog/2011/04/an-brilliant-idea-i-had-in-the-shower-this-morning.html is hereby enacted into law", you would have understood "hereby" to mean "by means of this act", and you would have understood that like any bill it won't become an act unless it passes the usual process.

So what's confusing about the existing language? Merely that the referenced document, whose provisions are being incorporated into this bill, happens itself to be a bill the House passed some time ago? How does that change anything? Those who fell for Slaughter's cynical trap are in my opinion just not thinking clearly.

(10) Beldar made the following comment | Apr 4, 2011 3:17:47 AM | Permalink

Milhouse I applaud your tenacity! I just can't agree that "pass" and "enact" are fungible synonyms in this context. The Constitution says "pass." The prefatory language about "enact" at the beginning of all bills refers explicitly to action by both chambers, not just one. I would indeed have a problem if the House, by itself, purported to "enact" a bill into law regardless of whether that bill, in turn, did or did not rely on some other source which it incorporated by reference.

I agree that in casual conversation or writing, even very well educated and knowledgeable people often treat "passed" and "enacted" as synonyms. But that's a different context than here. Besides being a usage distinction that the Constitution (in Article I, Section 7) and the Congress (in the standard preface) have traditionally made, the distinction between a bill merely being "passed" and it being "enacted" is very useful. Used carefully and with the precision we have a right to expect of Congress, each term attends a crucially different stage, and can be used to signal that stage.

To use your concrete example, had the bill said "the proposal made by Mr William Dyer at http://beldar.blogs.com/beldarblog/2011/04/an-brilliant-idea-i-had-in-the-shower-this-morning.html is hereby passed," or "is hereby passed by the House," then I would have understood "hereby" to mean "by means of this act," and I would have understood that like any bill it won't become an act of Congress unless it also is passed by the other chamber (and then either signed by the POTUS or, yes, enacted into law by virtue of a veto override). ("Passed into law" is uncomfortably close to enacted, and I would probably resist that.)

Had the bill instead said "the proposal made by Mr William Dyer at http://beldar.blogs.com/beldarblog/2011/04/an-brilliant-idea-i-had-in-the-shower-this-morning.html is hereby enacted," I would instead probably think — as Dems have accused the GOP of intending — that one chamber was trying to skip the other and the White House. If it said "hereby enacted into law," I'd be pretty sure of the attempted dodge.

The extra language I proposed is unwieldy, I agree, but that's because the notion of re-passing H.R. 1 with an amendment cutting off pay for Congress and the POTUS, and then making that amendment contingent on a particular uncertain future event, is a pretty sharp deviation from the norm anyway. Were I writing such an odd-ball bill, I would go out of my way to make crystal clear what it attempted to do and what it did not attempt to do, and I would expressly disclaim any suggestion that the bill could somehow skip one chamber.

But that's just polish — overkill inflicted with the admitted benefit of hindsight. Instead, the House GOP could have mooted this whole debate, and saved itself great embarrassment and haranguing, merely by an amendment replacing three words with one, to make H.R. 1255 to say H.R. 1's provisions "are hereby passed" instead of "are hereby enacted into law."

I'm still not convinced that there would be a good justification for passing H.R. 1255, whether with my simple proposed three-word amendment or my much more complicated re-drafting to explain and rule out. But even the three-word amendment would have cured the constitutional impossibility that Dems say the House GOP intended.

(BTW, love your hypothetical URL. The "a/an" glitch is exactly the kind of mistake I routinely create during editing and too often fail to catch, and many of my best ideas have arrived while I was showering.)

(11) boris made the following comment | Apr 4, 2011 8:24:21 AM | Permalink

If I understand both sides ...

... the phrase "hereby enacted into law" is being criticized because it is prone to misinterpretation. All it really means is "Passing this bill, HR1255 by House, Senate, and POTUS, will have the effect of enacting into law HR1" by an alternate route in a different wrapper.

If it can be parsed that way then the uproar is misguided and the Democrats are probably trying to create a fuss over nothing (again).

(12) MI made the following comment | Apr 4, 2011 8:59:13 AM | Permalink

1. Incorporation by reference of extrastatutory material via "hereby enacted into law" language has been done many times over the past quarter-century. For example, a 1999 appropriations act (*) provided that:

The provisions of the following bills are hereby enacted into law:
. . . .
(8) H.R. 3428 of the 106th Congress, as introduced on November 17, 1999 . . . .

I've collected other examples in a post here:

aleksandreia.wordpress.com/2011/04/03/incorporation-by-reference-and-the-government-shutdown-prevention-act/

2. The "hereby enacted into law" language has been deemed permissible under the Presentment Clause. See Hershey Foods Corp. v. USDA, 158 F. Supp. 2d 37, 41 (D.D.C. 2001) ("Congress may incorporate by cross-reference in its bills if it chooses to legislate in that manner. Nothing in the Presentment Clause, or elsewhere in the Constitution, demands otherwise."), aff’d, 293 F.3d 520 (D.C. Cir. 2002). More generally, as noted in a recent GAO letter report, "[l]egislative incorporation by reference is well founded historically and the Supreme Court has accepted it as a legislative tool without objection." U.S. GOV’T ACCOUNTABILITY OFFICE, B-316010, CONSOLIDATED APPROPRIATIONS ACT, 2008—INCORPORATION BY REFERENCE 9 (2008).

(*) Act of Nov. 29, 1999, Pub. L. No. 106-113, § 1000(a), 113 Stat. , 1536 (1999).

(13) Milhouse made the following comment | Apr 4, 2011 11:02:08 AM | Permalink

Beldar, your proposed language in your latest comment would not do at all.

"The proposal...is hereby passed" is meaningless; what does it mean to pass a proposal? The House passes bills, which go on to become law (or don't), and resolutions, which express its joint opinion; what does it mean to "pass" a proposal? How does a "passed" proposal differ from an "unpassed" one, and how does it become a law?

"The proposal...is hereby passed by the House" is even worse. Remember, this is not a resolution of the House; it's a bill for an act, which is enacted by both houses. Your proposed language would read, in full: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled ...the proposal...is hereby passed by the House"! Really? Both houses have agreed that your proposal was passed by the House; now what? The President signs HR1255 -- now he agrees that the House passed your proposal too; now what?

Acts of Congress, all acts of Congress, enact laws. Acts of Congress are by definition the word of both houses. Bills are drafts for acts.

OK, here's another f'rinstance: when you submit to the court proposed instructions to the jury, or proposed orders to be made by the Court, do you phrase them in your own person, or in the Court's person? Does that mean you're usurping the judge's position?!

(14) Patterico made the following comment | Apr 4, 2011 11:41:38 AM | Permalink

I think Milhouse and MI are right.

As much as I ranted about this, I had to swallow hard to admit it.

I explain here:

http://patterico.com/2011/04/04/whoops-that-horribly-unconstitutional-bill-passed-by-house-republicans-is-probably-constitutional-after-all/

(15) Beldar made the following comment | Apr 4, 2011 11:18:48 PM | Permalink

Milhouse (#13): "Provisions," not "proposals."

(16) Milhouse made the following comment | Apr 4, 2011 11:54:21 PM | Permalink

Beldar, I was referring to the proposal in your hypothetical blog post. But Congress doesn't pass provisions either. It's just as meaningless to pass a provision as it is to pass a proposal. Bills, resolutions, and motions are subject to passage or failure; proposals and provisions are not. They are enacted, by means of an act, which used to be a bill.

(17) Jeffrey Sine made the following comment | Apr 9, 2011 9:34:41 AM | Permalink

"Amendment 27 - Limiting Changes to Congressional Pay

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

It seems to me that without a new amendment to the constitution repealing this amendment nothing can be changed.

It is my belief that we require "our employees" (all govt employees) that before they make an attempt at introducing any changes or enactment of new laws that it first pass the constitutional sniff test.

Maybe I look at things in too simple a context, but maybe we need more of this, HR 1255 fails the constitutional sniff test and is a waste of any time or money.

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