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Sunday, April 03, 2011

About that apparently self-enacting GOP House bill that would cut off Obama's salary while skipping both his signature and Senate passage

If you're a constitutional or parliamentary wonk, or if you're normal but you really need something to induce a severe coma, you'll positively relish the back and forth between me, my blogospheric friend Patterico, and our mutual long-time commenter and blogospheric friend Milhouse in comments to Patterico's post today entitled 221 House Republicans Thumb Their Nose at the Constitution.

The original post is very good — drawing on work from some other superb bloggers, but adding legal detail of the sort that Patterico consistantly burrows down into and explains with such excellent clarity, passion, and wit.

But the comments — at least up to #58, when I had to pry myself away lest insanity creep in — show what I think is a thoughtful debate and evolution of arguments, with absolute civility and good faith. If but only if you like rustling around in some fairly tall weeds. Or if you were, perhaps, one of the three people in my freshlaw property course who really understood conditional springing executory interests and their relationship to the Rule Against Perpetuities.

In short, along with some other very unconventional provisions (like the potential suspension of Obama's salary), H.R. 1255 contains language specifying that if the Senate hasn't "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, then "the provisions of H.R. 1 [the House GOP's "Full-Year Continuing Appropriations Act, 2011"], as passed by the House on February 19, 2011, are hereby enacted into law." That looks a lot like H.R. 1255 is purporting to enact a bill into law while skipping both the Senate and the President. The House and Senate each pass bills all the time which begin with the traditional magic words: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled ...." But neither generally purports to accomplish the enactment of such bills into law without the other chamber also passing it before presentation to the POTUS.

If there's an explanation for that language in H.R. 1255 which squares with Article I, Section 7 of the Constitution, that explanation is not to be found in the press releases I've seen from some of the GOP members who voted in favor of it (e.g., here, here, here, and here). If it was an April Fool's joke, no one's admitted that yet — and my calendar says "April 3" now.

Parliamentarian of the House John V. Sullivan, will you accept an emergency phone call or email from confused members of the political blogophere? ("Dear Mr. Sullivan, re H.R. 1255: WTF? Sincerely yours ....")

Or Speaker Boehner or Majority Leader Cantor, can you enlighten us if there's some arcane procedural explanation that doesn't involve the House trying to make law by itself? Or if there's no excuse, will you at least remove the egg from your faces as graciously and expeditiously as you can?


UPDATE (Sun Apr 3 @ 7:30pm): I'm studying the Congressional Record, augmented by YouTube videos from the House floor debate, and will put my conclusions in a new post in a while.

Posted by Beldar at 05:29 PM in Congress, Law (2011), Politics (2011) | Permalink


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(1) Milhouse made the following comment | Apr 3, 2011 6:06:22 PM | Permalink

Adams's press release seems to show that he (or whichever staffer drafted it) did not understand the bill he voted for. Hayworth's and Black's press releases seem unobjectionable and accurate, but not very explanatory. Luetkemeyer's clearly says "Specifically, the Government Shutdown Prevention Act asks the Senate to reconsider the long-term fiscal 2011 spending bill (H.R. 1) that was subsequently rejected by the Senate. The new bill would provide that the original measure would become law".

Look, if it were up to me I'd have had the House simply re-pass HR1 verbatim. Or else pass a resolution reminding the Senate and President (and the public) that HR1 was passed and is languishing in the Senate, and stating that the House continues to stand by it. HR1255's language has certainly confused some people, and that itself is a flaw. But at the end of the day, all it does is incorporate the text of HR1 by reference, and there's nothing unconstitutional about that. It does not purport to bypass anybody. In fact it starts, as do all bills, "be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled", thus making it clear that the final Act would be the word of both houses.

(2) Beldar made the following comment | Apr 3, 2011 6:16:27 PM | Permalink

Milhouse, thanks for summarizing your position here as well! It's thoughtful, and you brought some good points you haven't (yet) made over at Patterico's (but probably will).

Please feel free to check back and comment further if there are more comments here, because I'd much rather you speak for yourself rather than risk me mangling something in a paraphrase.

(3) DRJ made the following comment | Apr 3, 2011 8:50:42 PM | Permalink

I contacted my Representative to see why he voted for HR 1255 but it may take awhile to get a response. This is a thankless task but I certainly appreciate your efforts, and feel free to email me if you want help.

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