Self-Executing Health Reform

March 16, 2010

Legislative minutiae have again taken center stage in the national drama of health reform. The latest hysteria over something that never seemed to matter before concerns “self-executing rules.” What’s a self-executing rule? Sarah Binder at Monkey Cage explains:

[Self-executing rules] provide that the House—upon adoption of the special rule—is considered or “deemed” to have taken some other action as well. In the case of health care reform, the idea is that the special rule for considering the reconciliation bill would include a “deeming” provision. One form of this deeming provision could provide that when the House votes to approve the special rule for the reconciliation bill , the House is simultaneously considered to have voted for and passed the Senate-passed helath care overhaul. In short, the vote on the temporary rule also provides for passage of the Senate-passed health care bill.

There have been some murmurs questioning the constitutionality of this maneuver. The concern is about violating the bicameralism and presentment provisions of Article I, section 7. You know the drill: both chambers must pass the exact same bill with the exact same language before it is presented to the president for signature or veto.

If a rule tacks one piece of legislation A onto another B, the argument goes, then the vote on the rule effectively merges the two bills into one. If the House passes a “merged” A+B bill, but the Senate has passed only bill A, then the two chambers have not passed the same bill.

David Waldman dispenses with these concerns decisively. The error is in thinking that the two bills would merge—or that the Senate bill (H.R. 3590) would be incorporated by reference into the reconciliation bill. Waldman:

Instead, the rule governing consideration of the reconciliation bill will incorporate a motion to agree to the Senate bill (actually a Senate-amended House bill). Agreeing to such a motion is perfectly routine and perfectly legitimate. The House will be presented with the opportunity to vote up or down on a measure incorporating that motion, and by adopting it will in turn adopt a procedure for agreeing to exactly the same text as the Senate passed, which will be triggered by the House’s recording of a vote in favor of passage of the reconciliation bill. At no point does the House amend or otherwise alter the text of H.R. 3590 as amended by the Senate. The requirements of the Constitution are satisfied.

The term “self-executing” is a bit of a misnomer, really. It has certainly been cause for confusion, willful and otherwise. But it is definitively not the case that the House will pass health reform without voting on it, or without “actually” voting on it, or without a “direct” vote on it. There will be a vote, and it will be an actual and direct vote. It will not be a simple vote, though. That is, it will be two votes in one. There will also be a vote on the rule itself, so in a sense there will be two votes on adopting the Senate bill. But just one that counts.

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Comments

One Response to “Self-Executing Health Reform”

  1. Lee on March 16th, 2010 8:33 pm

    That’s a nice, concise explanation of that issue. It’s really not that complicated, but for some reason everyone seems to have a hard time explaining it.

    I’m reposting a comment I just left on last nights post, because it’s on the same topic:

    i’m gathering that republicans are getting some traction w/ the idea that “deem and pass” represents some kind of shady trick… so it looking like not such a good idea after all.

    The problem seems to be that in order to explain that voting this way actually does mean the House will be voting on HCR you seem to defeat the purpose of the whole exercise, which is to obscure this fact so as not to be blamed for the most unpopular parts of the bill. So instead Dems have left it vague, but this turns out to just make everyone suspicious.

    You could perhaps argue that doing it this way carries symbolic value and sends a message to the Senate about how important it is to pass the Reconciliation fixes. That’s kind of weak tea, but it’s something. But, the more I think about it I think just straight up passing HCR first makes the most sense.

    But actually what makes sense is Pelosi doing whatever it takes to get to 216.

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