14 Mar 2010 Slaughter Solution Unconstitutional
Justice Stevens’ majority opinion in Clinton v. New Yorksignals the Supreme Court’s likely view of the Slaughter Solution
Frustrated by their inability to get President Obama’s health care plan through Congress, the House leadership is now considering a mad new scheme, dubbed the “Slaughter Solution,” to get the Senate version of the bill through a reluctant House.
As described by Mark Tapscott of the Washington Examiner, the Slaughter Solution would “pass [the] legislation by ‘deeming’ it approved under a House rule instead of following the process required by the U.S. Constitution in which they actually vote on the proposal itself… Slaughter’s approach would bring to the House floor a reconcilliation bill to resolve differences between the House and Senate versions of health care reform with the rule deeming the House to have approved the Senate version.”
Mark goes on to say a senior House of Representatives GOP staffer has told him the Republicans can find no evidence such a ploy has ever been tried before in the history of the House.
In my view, there’s a good reason why not: the legislation would stand a very good chance of being tossed out by the U.S. Supreme Court.
A dozen years ago, in a 6-3 decision, the U.S. Supreme Court ruled the line item veto unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998).
Writing for the majority, Justice John Paul Stevens laid a likely roadmap for how the Court might rule on a challenge to the constitutionality of the Slaughter Solution:
…our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became ‘Public Law 105–33’ after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law.’ Art. I, §7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105–33 would not have been validly enacted. [Emphasis added] If the Line Item Veto Act were valid, it would authorize the President to create a different law – one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as ‘Public Law 105–33 as modified by the President’ may or may not be desirable, but it is surely not a document that may ‘become a law’ pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
Whether one agrees or disagrees with the Court in the line item veto case, one cannot deny that the majority decision here is a powerful sign that the Slaughter Solution would not be ruled constitutional by the U.S. Supreme Court.