Constitutional law scholar Michael McConnell says that if House Democrats attempt to pass the Senate health care bill without actually voting on it, they may open the door to a Supreme Court challenge.
"These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 'the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.' These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that."
Rick Hasen: "If I were working for the Democrats in Congress, I would take his
concerns here very seriously. Could it really be that the Democrats
want to give the Supreme Court a way to strike down the health care bill
on a technicality, without even having to reach the merits?"
However, while Jack Balkin says McConnell's concerns "are textually well founded," he notes there is a way Democrats could proceed constitutionally.
"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. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule."
