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Monday, April 04, 2011

Beldar compares H.R. 1255 to an egg that will never hatch

Whether you've read my two previous posts on H.R. 1255 or not, or my friend Patterico's original post about it, I whole-heartedly commend to you Patterico's post today entitled Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All. (See also Prof. Jonathan Adler's updated post at the Volokh Conspriracy.)

Milhouse looking cool Patterico's praise for our mutual long-time commenter Milhouse is amply warranted. Speaker Boehner should track down and hire Milhouse immediately to be the House GOP's lead spokesperson on this issue. He's done a lot of superb critical thinking and argument here and at Patterico's, and a lot of legal and historical research entirely on his own, and I'm grateful to have been part of the collaborative process as he's sharpened his arguments. His work is an example of the blogosphere at its very, very best — not as consequential as Rathergate in 2004, but in the same spirit and with similar ingenuity and panache.

I agree entirely with Patterico, moreover, that nothing said by either side on the House floor can affect the constitutionality of H.R. 1255 either way. It can give clues what may have been intended, and that can be an interesting and legitimate question. What was said on the House floor, and what may be inferred from that, however, doesn't affect constitutionality; instead, constitutionality depends on the literal language of a statute once it's been duly enacted.

I still believe the key sentence we've been arguing about was horribly — and needlessly — misleading and unclear. Bad drafting by the House GOP gave the Democrats a huge club to beat the GOP over the head with, and for absolutely no good reason. That's politically stupid, and inexcusably so: When you regain control of the House, you don't want to create circumstances that can very easily, and quite persuasively, be spun to look like you're incompetent. Better draftsmanship could easily have done what the House GOP intended, and without subjecting them to ridicule or misunderstanding.

I would have voted against H.R. 1255 as it was written were I a member of the House. I could have been persuaded to vote for it with an amendment substituting one word for three, to make H.R. 1255 to say H.R. 1's provisions "are hereby passed" instead of "are hereby enacted into law."

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As for whether I think H.R. 1255 is or isn't "constitutional": Normally when we ask that, we're talking about something that's been enacted into law through the full process, including passage by both chambers of Congress and a presidential signature (or rarely, re-passage after a presidential veto). Sometimes we speculate as to whether a mere bill would be constitutional when and if so passed. So the context here is a bit different, and doesn't quite fit either of those common scenarios.

The budget provisions of H.R. 1 that were incorporated by reference into H.R. 1255 would certainly be constitutional if either H.R. 1 or H.R. 1255 were duly passed by the Senate and signed by the POTUS (or, if he vetoed either, if re-passed by both chambers with the required two-thirds majority).

The additional features of H.R. 1255 relating to Congressional and POTUS pay are more problematic, and not just because of the Twenty-Seventh Amendment. I haven't looked at that question closely, nor has that been what we've been debating yesterday or today.

So given that H.R. 1255 was passed by the House despite the Dems' mockery and without the votes of some GOP members, what happens if we get to 12:01 a.m. on April 6 without the U.S. Senate having "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011"?

That depends on what else happens, or doesn't, in the meantime.

There's a high probability — I'd guess exceeding 99% — that the Senate won't have considered H.R. 1255 by then. There's no way Reid would expedite it, nor that the GOP senators could force that.

In the extremely unlikely event that the Senate passed H.R. 1255 in the 25 hours or so that remain before April 6, though, it would go to the POTUS for consideration. Again, there's a 99%+ chance that it would be promptly — delightedly — vetoed. That would be the end of it unless both chambers re-passed it by a two-thirds majority, which I think is emphatically less likely than, say, the sun going super-nova in the meantime.

If the Senate doesn't pass H.R. 1255 before April 6, however, then knowing what we've now figured out about what the House GOP sponsors and leadership intended, we know there is literally no one on the planet who will be contending that H.R. 1255 has automatically become law. That's despite its confused language suggesting someone thought it might. This is the most likely outcome by far.

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But even if it has no constituency who would argue that it's become a validly enacted statute and part of America's binding law, is H.R. 1255 constitutional in the abstract?

I genuinely don't think that question can be answered by itself. It's like asking if an egg is a chicken or an aligator. Even if the egg insists that it's a chicken just because it (the egg) says so, or even if the egg insists that it needs no further incubation, the egg's insistence doesn't complete the process of hatching out, nor establish whether it would have become a chicken or an aligator.

And in the real world, this egg ain't ever gonna hatch.

I can answer the question in absolute confidence were it re-phrased: If the Senate has not "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, and if the Senate takes no action on H.R. 1255 in the meantime either, will H.R. 1255 automatically become a duly enacted statute that can then be subjected to analysis for constitutionality?

The answer to that question is "No." Period. And no member of the House GOP, including H.R. 1255's sponsors or the leadership, would disagree.

What was never more, at best, than a politcal gesture has mostly backfired. It's not a big deal in the great scheme of things, and is likely to be forgotten by the small segment of the public who's paid attention to it so far. (Not by me or Patterico or Milhouse, though! Or probably by you, if you're still reading this, gentle reader.) But I still hope Speaker Boehner and the House leadership will take to heart this lesson, and that they'll tread on their own toes less forcefully in the future.

Posted by Beldar at 10:56 PM in Congress, Law (2011), Politics (2011) | Permalink

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Comments

(1) Milhouse made the following comment | Apr 4, 2011 11:59:36 PM | Permalink

Hey, thanks for the job recommendation! Mr Boehner (or his flunky-in-charge-of-reading-blogs), my email address is here, and I look forward to your offer :-)

But I have to admit I didn't do any research; I just read the text of the bill and reasoned from there. The research to which I think you refer was done by MI, who is not me. Maybe s/he should get the job?

(2) Milhouse made the following comment | Apr 5, 2011 12:15:10 AM | Permalink

Srsly, I'm available for hire. If my performance in the debate at Patterico's place made anyone want to throw some work at me, I'm all ears

(3) Charles made the following comment | Apr 5, 2011 9:30:47 PM | Permalink

Congratulations, Milhouse, especially the hard work of research. I tried to make this argument over at FreeRepublic with little success.

Beldar, I actually strongly disagree with this statement of yours, (remembering that I am not a lawyer):
"with an amendment substituting one word for three, to make H.R. 1255 to say H.R. 1's provisions "are hereby passed" instead of "are hereby enacted into law.""

I think "are hereby passed" makes it sound more like you are just "wishing" the previous bill into law than the "are hereby enacted into law".

Because, I think the point of this new bill was to say that, if nothing is done by April 6, the previous bill will be enacted, rather than having nothing enacted. It's not "passed", because there will not be a house bill #1 that suddenly shows up as passed. The bill that would be "passed" would be 1255, and 1255 would, on April 6, authorize the enactment of the provisions of HR #1.

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