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House Democrats’ Healthcare Reform Plans Are Unconstitutional

Publication Date: 
March 16, 2010
U.S. News & World Report
Peter Roff and Thomas Jefferson

Professor Michael McConnell, an expert on constitutional law, is quoted from his opinion piece published in the Wall Street Journal on the constitutionality of using the Slaughter solution to pass the health care reform bill in Congress. Peter Roff and Thomas Jefferson of the U.S. News & World Report filed this story:

House Speaker Nancy Pelosi and her allies, in an effort to be clever, have overstepped their constitutional bounds. The plan they have put forward for getting Senate-passed healthcare legislation through the House is, according to one prominent constitutional scholar, “unconstitutional.” Writing in Monday’s Wall Street Journal, Michael McConnell, the former federal appellate judge who is now director of the prestigious Constitutional Law Center at Stanford Law School, explains that the path Pelosi and company have staked out to move the bill to the finish line doesn’t pass the smell test.

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

The House and Senate can, to be sure, establish their own rules of procedure and, after all, have the final word as to many of the critical activities that occur within them--such as who may or may not be seated. But, as McConnell writes, they “cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.”