Beldar finds surprises in the Congressional Record about H.R. 1255, but no clear rebuttal of Dems' (and others') constitutional critique of it

The Congressional Record of April 1st's floor proceedings in the U.S. House of Representatives includes a very long floor discussion of H.R. 1255, about which I posted earlier today. Much of it is typical partisan sniping along the lines of "You mean old Republicans haven't passed any bills creating jobs and now you won't compromise" or "You spendthrift Dems created this problem because you couldn't pass any budget at all for FY2011, so we're having to force the Senate to act."

But some portion of the Democratic members' discussion must be read as fairly — and fairly persuasively — raising the question of H.R. 1255's failure to gain, and perhaps even to seek, Senate approval or a presidential signature. If the GOP had a persuasive answer to that complaint, I sure couldn't find it in the floor debate. There are hints of an argument, hints maybe of precedent. There's a repeated and clear profession of intention on the part of many House Republicans that H.R. 1255 not be self-enacting, and that it instead would require Senate approval, and then either a presidential signature or a veto override, to become law. So maybe there's a procedural or parliamentary argument I just haven't read, heard, thought of, or (possibly) understood.

But then, too, there was also a short and very unequivocal statement by one House Republican — Rep. Louie Gohmert (R-TX) — that he believes H.R. 1255 to be unconstitutional.

The only excuse I can make for the length of what follows is that what I've left out would make it five or six times longer if included. I've tried to be fair and judicious in my selection of what to include, but I can't guarantee against an inadvertant shortfall in that regard. If I misunderstood or didn't know what something was, it's entirely possible that I wouldn't have recognized it as relevant and might not have included it.

I'll quote at length the best of the Dems' objections and complaints that are relevant to the "skipping the Senate and the POTUS" argument — from Rep. Louise Slaughter (D-NY) — below, but I want to proceed in roughly chronological order corresponding to how the various arguments were made on the floor.  So first, here's the best I can find by way of a GOP response before the first vote:

Mr. [Rob] WOODALL [R-GA, H.R. 1255's principal sponsor] ... This bill does two things, the underlying legislation does two things: It both gives the Senate an opportunity to come out from under its paralyzing inaction and pass H.R. 1 [i.e., the House GOP's "Full-Year Continuing Appropriations Act, 2011," which it passed in February]; and, it says that if the Senate does not, if the Senate fails to act — we are not asking the Senate to do exactly what we want them to do. We are asking them to act. If they fail to act, that Congress will not get paid. Congress will not get paid. My colleagues on the left won't get paid, my colleagues on the right won't get paid, and my colleagues in the Senate won't get paid....

Still fairly early in the morning, the first vote was held — "The vote was taken by electronic device, and there were — yeas 219, nays 172, not voting 41." But a "motion to reconsider was laid on the table." Rep. Woodall sought and received unanimous consent that all members would have five days to revise and extend their remarks. And then, after another statement about how the budgetary delay and uncertainty is hurting the economy and costing jobs, came this:

Mr. WOMACK [R-AR]: ... Madam Speaker, this has to stop. The political gamesmanship going on in the upper Chamber might make for good headlines in the capital press, but it is hurting our Nation. That's why I've offered this bill to self-impose a deadline on Congress, and I'm asking my colleagues to join me in supporting H.R. 1255 to start the clock on the Senate to pass something we can agree to in funding government for the remainder of this year by April 6, or assuming a government shutdown, expect to have our pay withheld until we can reach agreement.

Here's a YouTube clip which includes that:

You can see that the House was almost empty, as is typical. I think this was for the TV cameras back home. Throughout the day, the Congressional Record references the voting being done electronically, and I'm mildly ashamed not to be up-to-date on whether that means members had to return to the floor to vote, or whether they could do it remotely (e.g., from their offices).

Next, one of the rather more articulate attacks, from which I'm going to quote at length because it also effectively summarizes all of the arguments made by other Dems on the subject we're exploring:

Ms. [Louise] SLAUGHTER [D-NY]: ... Madam Speaker, over 200 years, the House of Representatives has seen almost everything. From the days as a young nation, to modern day America, the exchange of ideas and the debate of legislation is a rich and proud tradition that moves our country forward. Unfortunately, today's legislation abandons this proud history and marks a new low in the United States House of Representatives. As you know, the new majority started off the session with reading every section and every piece of the Constitution of the United States to show our reverence for it, but this morning that Constitution has been kicked under the couch out of sight, lest its presence in the room restrict what is attempting to be done here today. Indeed, this legislation proposes that we throw away 200 years of legislative history and upend the fundamental process of how a bill becomes law.

Despite the urgent and dire issues facing our constituents, here we are, the U.S. House of Representatives, considering legislation that has no chance of becoming law. Today's legislation would "deem" a bill that the Senate has already voted down as passed by that very Senate. It would take a remarkable mind to even come up with such an idea. This notion, while clever, will never pass through the U.S. Senate. And let me remind you that what we're doing this morning, saying that we're going to bypass the Senate, would not do anything at all unless the Senate passed it of themselves saying, forget about us. It's simply not going to happen.

I'm intrigued by the "while clever" comment. It makes me think there's some at least arguable procedural cleverness to what the GOP was doing. I just don't know what, yet, that might have been. But Rep. Slaughter was just getting going, and continued with this:

The Republican majority claims this bill is a solution to a government shutdown. I hope that discussions regarding the solution to a government shutdown are taking place in offices between Senate and House Members and representatives of the administration as we speak. They are the people who can avoid that. The majority claims this bill is a solution, as I said. If this is their only solution, America is in big trouble. The solution to a government shutdown is to meet the Democratic Party at the negotiating table, not to propose scrapping the entire legislative process simply because the majority party refuses to tell the right wing of their party "no."

I am sad to say that today's legislation is more befitting an entry to Grimm's Fairy Tales than to this august body. I think it demeans the House to pretend to do the impossible, to pretend to do what we can't. Does the majority believe that majority confers supernatural powers upon them to bypass the United States Senate?

In the House of Representatives, there are written rules for how the legislative process proceeds, rules that were crafted by Thomas Jefferson, rules that have been tried and true since the founding of this legislative body. These rules have helped lead our country through debates much more fractured than this. From civil war to civil rights, the rules of the House have seen us through struggle and strife and kept our country strong. Today's bill would throw away these rules and very much upset Thomas Jefferson.

Every one of us knows as schoolchildren that there is no way for a bill to become law without both chambers acting on it, a conference committee to meet if necessary, and the signature of the President of the United States. I wish that I were not standing here having to explain to my colleagues how a bill becomes law. I said yesterday, and I must say it again, that I hope we have warped no children's minds. Anyone who may be watching the perversion of the process today and any teachers who are guiding children through this process, take courage, because you can see the video that will explain once again, "I am a bill." Never before has anyone seriously considered the idea that one House can pass a bill and decide it will be the law of the land. Hopefully no party will ever try such a far-fetched tactic again.

Rep. Slaughter — who chaired the House Rules committee in the last Congress — next remains polite, but also gets sorta-kinda personal about how ObamaCare got passed:

Just last year, the procedure to "deem and pass" legislation through the House was derided by Republicans as the "Slaughter Solution," a procedure we ultimately chose not to use. At the time, Speaker Boehner called the deem and pass process "an affront to every American." Now he brings his own "dream and pass" legislation to the floor.

There was considerably more back and forth from various members, apparently including at least some reading aloud of the Constitution, but then Rep. Woodall weighed back in on the topic that this post is about (boldface mine):

Mr. WOODALL: ... There is no deeming in this bill. And I give my colleagues on the other side of the aisle the benefit of the doubt that they know that and that is just the spin for today.

There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn't want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President's desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.

Now, that is critically important; one thing and one thing only this bill does: gives the Senate the opportunity to say, you know, for whatever reasons — and the reasons are still a mystery to me — we can't pass legislation in the Senate. We can defeat things all day long, but we can't pass anything. I'm not sure why that is. This bill says: but none of us want a shutdown.

Now, I have got to be honest, Madam Speaker. I am beginning to wonder if "none of us want a shutdown" is actually a true statement, because there are some folks who seem to be driving us right down that road.

This is a bill that just gives us another option, another arrow in our quiver to say, if you cannot act, Senate, if you are paralyzed by inaction, pass this bill, and we will continue those negotiations while H.R. 1 is the law of the land.

I would like to understand this. I don't; it seems to contradict itself, and potentially also to contradict what Rep. Woodall said specifically about "deeming" at the end of the day (see below). But then there's this (boldface mine):

Mr. WOODALL: Madam Speaker, I yield myself 15 seconds to say what I fear will fall on deaf ears, and that is that H.R. 1255 will not become the law of the land until the Senate passes it and the President signs it. The Senate passes it and the President signs it. That is the only thing we're talking about doing here today.

Alrightee! "Ding-ding-ding," my friend Milhouse will surely say, "This validates my theory that even the House GOP expects H.R. 1255 to be only a House-passed bill — and not an enacted law — unless and until it goes through the regular process!" What it doesn't do, unfortunately, is explain how that intent was embodied in the language of H.R. 1255.

Thereupon Rep. Sheila Jackson Lee (D-TX) accused Republicans of "killing off seniors and those in classrooms" with the spending cuts they're demanding. Seriously, she said that on the floor of the U.S. House of Representatives — and it's just so very Sheila! that nobody really bothered to notice. I'm surprised she didn't take the opportunity to allege that George W. Bush steals Girl Scout cookies.

It appears that after a bit more back and forth, there were two more votes on motions to reconsider, with the GOP holding its majority each time.

In the afternoon, Majority Leader Eric Cantor spoke about the need for action on a budget bill, but if he directly defended or explained the constitutionality of H.R. 1255 as against the Democrats' arguments that it purports to skip Senate or presidential approval, I couldn't find that passage. But of course, many others spoke too when the time allotments began to get really tight, typically only two minutes (boldface mine):

Mr. [Tim] GRIFFIN [R] of Arkansas: ... I would like to say real quickly that what we have seen here in the last few minutes is a colossal waste of time. You had a bunch of folks saying, Madam Speaker, that this is unconstitutional. I just want to clarify so we can move past that and my colleagues can focus their arguments where it matters.

We intend for this bill, like all other bills, to pass the House, to pass the Senate, and be signed by the President. I too am a JAG officer from the Army, and I think that the JAG officer, Madam Speaker, from the Air Force would understand that this is a constitutional bill, like the other bills that we introduce here.

Again, a strong statement of intent that H.R. 1255 not be read to be self-enacting without passage in the Senate, but no real explanation of how that's so.

But then, after a typically nasty but otherwise unoriginal set of remarks by Minority Leader Pelosi, we eventually come to a GOP up-and-comer in the House who has a surprise (again, boldface mine):

Mr. [Louie] GOHMERT [R-TX]: We're here because the Democratic majority last year did not do their job, did not give us a budget, did not due proper appropriations, and now the Senate has had the same problem. So I applaud anybody's efforts in trying to move the ball down the road so that we can appropriate. I just wish the Senate would do their job now and take care of it. But for a bill to say provisions that pass the House are hereby enacted into law violates my conscience and the Constitution. I cannot vote for it.

So if there's a GOP rationale, Rep. Gohmert didn't get the memo, or else found it unpersuasive. Rep. Gohmert was a state-court trial and appellate judge before he upset long-term Dem Congressman Max Sandlin in 2004, and he's been reelected three times, most recently (in 2010) as a Tea Party favorite. He's one of my favorites from what I think is a pretty strong Texas GOP delegation in the U.S. House of Representatives. But he certainly didn't equivocate over this vote, nor clam up about his reasons for it. And you can bet that a series of Democratic Reps then proceeded to throw Rep. Gohmert's statement back in the GOP members' faces with gusto and glee (as I'm sure he knew they would).

But wait! There's more!

Mr. [David] SCHWEIKERT [R-AZ]: ... It has been fascinating. I accept that I'm a freshman, and I know it's April Fool's Day, but it's been funny hearing the discussion about how this isn't constitutional.

Now, let me see. I'll walk through this.

It's a piece of legislation with a trigger mechanism in it. Okay. I know the other side does not like that trigger, but it still would require the Senate to pass it and the President to sign it....

And then Rep. Woodall makes the same argument (I think) that Milhouse has been making from the text of H.R. 1255:

Mr. WOODALL: ... [S]o I'll just read one more time:

Having passed the House, having passed the Senate, and be signed by the President.

That's the regular order.

Next follows a cameo by a book sold in the Congressional Gift Shop, "House Mouse, Senate Mouse." Man, I thought bloggers were snarky until I read this debate.

And finally, a lengthier summing up by Rep. Woodall, from which I'll omit the further "Schoolhouse Rock: I'm a Bill" references:

I just want to read from the bill. It saddens me. I'm so thrilled that so many Americans watch what we do here on the House floor to hold us accountable, and I'm so saddened by all the misinformation that's circulated. I read here directly from the bill:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the Departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House, are hereby enacted into law."

This bill that we send to the Senate, for the Senate to pass, and the President to sign, those provisions are hereby enacted into law. Now, I just want to study that a little bit closer. If the House has not received a message from the Senate stating that the Senate has passed a measure providing for the appropriations of the United States Government.

Folks may be wondering, Madam Speaker, why is it that we're doing that now? Wasn't that supposed to be done last September? Yes, it was....

He moved on to other topics, but was interrupted (boldface mine):

Mr. [Alcee] HASTINGS [D] of Florida: I just have a question. Do you really believe that what you're doing is constitutional?

Mr. WOODALL. Absolutely. I appreciate your asking. I appreciate your asking because having had my motives impugned throughout the day, and I know with the collegial relationship that you and I have in the Rules Committee, you know for a fact I wouldn't be here otherwise. I wouldn't be here otherwise.

Now, I'm no scholar of House activities. I know we have passed bills in this House that have incorporated things by reference before, and I'm sure we will do it again, not outside the process. To suggest — and you appreciate this, I say to my friend from Florida — to receive constitutional instruction from the team that brought us ObamaCare is troubling at the most basic levels.

Mr. HASTINGS of Florida. Will the gentleman yield again for yet another question?

Mr. WOODALL. I would be happy to yield to the gentleman.

Mr. HASTINGS of Florida. Do you have any precedent for the constitutionality of this particular measure? And I urge you based on what you just said, there have been measures that were deemed, but that was when they were agreed upon, but there is no authority anywhere for us to pass a law requiring of the United States Senate to undertake to do something, and I appreciate my colleague yielding.

Mr. WOODALL. Reclaiming my time, I will say that this is a unique procedure and these are unique times.

Mr. HASTINGS of Florida. Unique and unconstitutional.

Mr. WOODALL. But I will just say to you that in 1999, a Republican Congress, a Democratic President, enacted the foreign relations authorization bill, by reference, in an appropriations bill. That's what we're doing today.

There's the hint of a precedent, but I don't know its details, nor whether it's genuinely apt and on point. Someone's obviously explained it to Rep. Woodall, but it's just as obvious that he couldn't repeat any of the details of that explanation.

Rep. Woodall earlier insisted that H.R. 1255 does no "deeming," and that's confusing, because the whole point of "incorporation by reference" is that you "deem" something to be written into one document that actually is only written out in full in some other document. Particularly from Rep. Slaughter's defensiveness, I'm guessing that by insisting that there's "no deeming," Rep. Woodall meant to distinguish this situation from the way ObamaCare ultimately was passed.

I think this is the YouTube clip of Rep. Woodall's closing:

And after another half hour or more of entirely repetitive argument by the Dems that wasn't nearly as polite, eloquent, or persuasive as Rep. Slaughter's had been, there were more votes, and votes about votes, all resulting in H.R. 1255 being re-passed and re-re-passed by the House.

Perhaps my friend Milhouse will find nuggets I've missed in what I've quoted, or in the full text I've linked but not quoted, to support his take on this. I hope so; as I wrote at Patterico's, "I’m not much of a parliamentarian, so I’m going to hold out hope for an explanation that relies on some very technical provisions of the House Rules or some prior full-fledged statute which would put a whole ‘nuther complexion on this." There are hints of prior precedent that the GOP may be relying on, and having read only a little bit between the lines now, I'm quite sure that someone on the GOP side did indeed study this issue before the bill was filed, and there is some kind of procedural argument why it's valid. But I haven't read that memo.

Rep. Woodall did a nice job for a rookie of arguing the policies and political intentions behind the bill (and an excellent job of keeping his temper and remaining courteous even when mocked), but he did a damn poor job of trying to knock down the Dems' arguments. If there is a way to knock them down, Speaker Boehner needs to designate someone else to do that, and soon. (I nominate Fred Thompson, who of course is no longer in Congress, but has a better screen presence, and better communication skills, than anyone who still is.)