Health Care Voting Methods

Michael W. McConnell, a former federal judge on the U.S. Court of Appeals for the Tenth Circuit, is a law professor at Stanford University and director of the Stanford Constitutional Law Center, has written an opinion piece for the Wall Street Journal. He questions how the House could vote on the Health Care bill when the legislation signed would then be split up, one to be forwarded to the President and the other for the Senate.

But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

Now I am not a Constitutional Scholar by any measure. Yet the more I think about this move by the Democrats, it is really quite brilliant. Although I understand Mr. McConnell's reservation about such a move. For it is completely unorthodox. Yet what does it matter? Notice that he equivocates "resulting bill" and "measure". Which is it? Two bills in one measure, or two bills that become one bill?

Simply because the approved Senate bill would go to the President and the Amendments bill would go to the Senate doesn't seem to be illegal in my opinion. I mean really. What difference does it make? If we split the bills into two separate votes, would not the same thing be accomplished? The entire whining by everyone seems to be over the fact that this is being done for deceptive political reasons.

Now McConnell seems to be arguing that Article 1 Section 7 of the Constitution does not allow bills that are signed as one "measure" to then be separated. For the entire measure must remain as "the same form" throughout the entire process. If this is the case, then the Framers were obviously protecting us from such deceptive political chicanery.

As McConnell concludes,

One thing is sure: To proceed in this way creates an unnecessary risk that the legislation will be invalidated for violation of Article I, Section 7. Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

This is the real issue. If it makes no difference as to whether or not these two bills are voted on at the same time or separately, and there is this much political secrecy and deception, then something must be terribly wrong with this legislation. Perhaps the Constitution truly is being overthrown?