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Stanford Law School professor Michael McConnell on the Constitutional challenge to the Slaughter solution on Obamacare.

Tuesday, March 16, 2010

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HH: We start at 30,000 feet with the big question with Mike McConnell. Judge McConnell served for many years on the 10th Circuit Court of Appeals. He is now a professor at Stanford University Law School. Before he went onto the court, he was a deputy solicitor general of the United States back in the good old days of the Reagan years. And he joins me now from Stanford. Judge McConnell, welcome, good to talk to you.

MM: Thank you.

HH: Yesterday in the Wall Street Journal, you wrote a piece that’s gotten, well, amazing traction. It’s been reproduced at Powerlineblog.com, it’s in everyone’s e-mail box. Did you expect a little essay on Article I, Section 7 to travel so far and so fast?

MM: Well, it may seem arcane, but I guess it was timely.

HH: The bottom line is the Slaughter solution, you write in paragraph two of yesterday’s piece, “Cannot be squared with Article I, Section 7 of the Constitution.” Can you explain to the listening audience what you were talking about?

MM: Yes, the Slaughter solution is a proposed way to pass the health care legislation through the House of Representatives without actually requiring the members to vote on the bill itself. So they would propose a rule which would deem voting another bill, a bill containing amendments, to constitute passage of the Senate version of the health care bill. Now that Senate version is the version that passed on Christmas Eve that contained all those special deals like, that have been given outlandish names like the Louisiana Purchase, and the Cornhusker…

HH: Kickback, yeah.

MM: …Kickback and so forth. And now, that bill, even though the Senate passed it, everybody seems to regard it as politically toxic. Even people who voted for it originally now are regretting that. So the idea here is to find a vehicle to enable the House to vote for that, thus to send it, to keep the process moving forward, without looking like they vote for it.

HH: Now earlier today, I spoke with Senator Jon Kyl, the Republican whip in the Senate, who was scratching his head about this proposed procedure. Going back all the way to the days in the Reagan administration, do you ever recall anything like this being attempted by the House of Representatives to avoid a vote?

MM: Well, I’m quite convinced that it has never been used in this way. Now there are devices used to avoid an open vote on things, but never in quite this way. It’s…the point here is a little bit complicated, that the reason this is unconstitutional is not actually because it avoids the vote. The reason is that it treats a single vote in the House of Representatives as creating two separate pieces of legislation, one of which would be, would go to the President immediately for his signature, and the other one of which would go back to the Senate for consideration under reconciliation. Now the problem with that is if they did the straightforward way, the old-fashioned way of just having a single bill doing two different things, it couldn’t, neither of those things would happen. You couldn’t send it to the President, because the Senate hasn’t passed it in that form, and if you sent it back to the Senate, it could not go through, they couldn’t use the reconciliation procedures, because they can only be used to amend something that’s already a prior law. And so they can’t do it that way. And so the idea of this rule is that somehow it, by a single vote, they, not only do they deem the Senate version of the bill passed, but they then halve that off the bill, I assume they’ll give it a separate bill number or something, and then send it to the President for his signature. That’s what has never, I believe, never been done.

HH: Now in your op-ed piece, you cite the case from 1998 of Clinton V. City of New York. For what proposition, Judge McConnell?

MM: Now in that case, the Supreme Court held that the provision of Article I, Section 7 that I cite in the op-ed piece, requires that any piece of legislation to be sent to the President and passed into law has to be passed in identical form – the exact text, as the Supreme Court said, has to be passed by both the Senate and the House. And that’s the problem, because the House doesn’t want to pass the exact text of the Senate version. What they want to do is to be able to amend it.

HH: Now is there a remedy? I told people to be concerned. Even though an explicit violation of the Constitution’s text appears, and I think you’ve made a good argument that that, this is that situation, remedies may not be easily available. What do you think, Judge McConnell?

MM: This is really getting into complicated waters, and I think it is hard to predict what courts would do. Now the first question is does someone have what we call standing to challenge the bill. If they were to go, this is assuming that the leadership went through with the Slaughter solution as they have described. Now I do think that there will be people with standing, because there will be affected by this. Anyone who is required to buy insurance and fined for not doing so, an employer that’s fined for not providing insurance, and possibly even the insurance companies themselves, anyone on whom this bill imposes legal requirements would have standing. But whether the court can reach it as a political, under the political question doctrine, is harder to say. There is an old principle called the enrolled bill doctrine, which holds that where the clerk of the House or Senate has sent to the President a bill, and he signs it, that the courts do not look behind that bill to see whether proper procedures were followed in passing it, that the fact of the bill is conclusively demonstrated by the pieces of paper, that is the piece of paper that the clerk sends to the President, and that the President signs. Now I’m not sure that that would preclude a suit, but it certainly would be the first line of defense. It might not preclude it, because this issue, actually, raises a Constitutional question, and not just a procedural question. And I also don’t know that the, and it doesn’t seem to me that the question here is going to be the fact of the passage of the bill. I think the question here is going to be whether there is a single bill that in any shape or form has passed both the House and the Senate in the same, exact way. So I don’t know. It’s going to be, it’ll be an interesting litigation if the Congress goes this route. My guess is they won’t, though, Hugh, because the whole point of this maneuver is to avoid scrutiny. It’s to give House members cover so they can in fact vote for the Senate bill without looking like it. But now that the procedure itself has become so controversial that everybody’s looking at them anyway, I don’t think it’s going to provide them any cover. I don’t think they can escape scrutiny for this. And if that’s true, then why create just an additional procedural, unconstitutional problem for themselves? If they can’t hide anyway, why not just do it straightforwardly?

HH: I hope you’re right about that. There have been some Democratic members of Congress making exactly that point. They don’t like being called the kangaroo Congress, that’s for sure, and the phones are burning up. But let me ask you, Judge McConnell, in the last two minutes that we’ve got, stepping back from it, if it were to pass under the Slaughter solution, we’ve obviously got an mandated purchaser with standing, we have some state attorneys general with standing, other individuals who will have been injured as you mentioned. But if the challenge is going to be to the Slaughter process itself, is there any place that the case would necessarily have to be brought? Would it have to be brought in the District of Columbia?

MM: No, I think it could be brought anywhere.

HH: And how quickly would you imagine it could reach the merits both at the district court, the appellate level, and ultimately whether or not the Supreme Court accepts certiary at the Court?

MM: Well, it all depends, but it is not, because this would be a pure question of law, it is not inconceivable that a court would issue a preliminary injunction very quickly.

HH: Would you anticipate that proponents of the will would seek themselves to bring that challenge in a friendlier circuit rather than in a different, perhaps more scrutinizing circuit?

MM: Well, it’s not impossible, but I would guess it’s more likely that opponents will bring the lawsuit.

HH: Judge Mike McConnell at Stanford University Law School, I appreciate very much you taking the time to explain this. The piece is in yesterday’s Wall Street Journal. It’s entitled The House Health Care Vote And The Constitution. Excerpts are available at Powerlineblog.com. I encourage all of you to read it. I encourage you to be smart about this, and to approach it with the same caution that Judge McConnell approaches it. But it is a huge issue, and it is rapidly turning this United States Congress into the kangaroo Congress, into the Congress that you would associate with kangaroo courts. And there are all sorts of things you can do about that at Hughhewitt.com.

End of interview.

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