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'Slaughter Solution' Not Bulletproof

Publication Date: 
March 16, 2010
Fred Barbash

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. Fred Barbash of Politico writes:

The so-called “Slaughter solution” for enacting health care reform without a conventional House vote on an identically worded Senate bill would be vulnerable to credible constitutional challenge, experts say.

No lawyer interviewed by POLITICO thought the constitutionality of the “deem and pass” approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.


The constitutional questions about the process intensified Monday thanks to a Wall Street Journal op-ed by former U.S. appeals court judge Michael McConnell, now a professor at Stanford Law School and a senior fellow at the Hoover Institution.

The “Slaughter solution,” he wrote, “may be clever, but it is not constitutional.”

“To be sure,” he continued, “each house has the power to make its own rules. But House and Senate rules 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.” He cited the line-item veto as his primary precedent on the grounds that it disregarded the constitutional procedure for enacting laws.