Did Harry Reid bend the rules?

[RobJohnson]

Senate majority leader Harry Reid violated the Constitution in his maneuverings to pass Obamacare, a conservative legal fund argues. The case will go before a federal panel of judges Thursday..

Christian Science Monitor
By Warren Richey
May 8, 2014 8:00 AM

The Affordable Care Act is back at center stage in the courts on Thursday with yet another legal challenge that aims to derail President Obama’s massive health care reform law.

Rather than attacking the individual mandate or the so-called contraceptive mandate, this lawsuit challenges a legislative maneuver used by Senate majority leader Harry Reid (D) of Nevada to pass the bill five years ago.

The little-noticed legal battle is being waged by a conservative public interest law group, the Pacific Legal Foundation (PLF). It seeks to enforce a constitutional command: “All bills for raising revenue shall originate in the House of Representatives.”

Lawyers for the group charge that the Affordable Care Act (ACA) was first passed by the Senate and only later approved by the House in violation of the Constitution’s Origination Clause.

YAHOO NEWS

[Gingersnap]

I saw this yesterday. I guess we just have to get used to the new normal where it's okay if a Democrat does it but it's a national emergency if a Republican could potentially have done it.

[Norm dePlume]

Shell bills have plenty of precedent under both parties.

Well, there are a few problems. The PLF press release emphasizes the first part of the Origination Clause but not the last part, which says that "the Senate may propose or concur with Amendments as on other Bills." That language is the very reason why the Senate uses shell bills. In fact, the Senate has used shell bills on a number of occasions for major tax legislation. An example is the 1986 tax act, signed by Ronald Reagan.

The House has the power to enforce the Origination Clause if it wants to. If the House doesn't like what the Senate has done, it can return a bill to the Senate with a "blue slip" -- a memorandum that was traditionally printed on blue paper -- to indicate to the Senate that it thinks that the Senate has violated the Origination Clause. Or it can simply refuse to take up the Senate bill. The health care bill was not blue-slipped; the House leadership raised no objections.

...

In Flint v. Stone Tracy Co. in 1911, the Senate took a House tariff bill with an inheritance tax, jettisoned the inheritance tax, and substituted the nation's first corporate income tax. The Court said that was perfectly fine: "The bill having properly originated in the House, we perceive no reason in the constitutional provision relied upon why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject-matter of the bill, and not beyond the power of the Senate to propose." The Court didn't explain why the addition of a corporate income tax was germane to a tariff bill or to an inheritance tax, other than the fact that all three were provisions "for raising Revenue" under the meaning of the Constitution.

Perhaps the PLF could use this language to argue that the health care bill wasn't germane to the original House bill -- the latter was about changing income tax rules for servicemembers. But three years after Flint, in Rainey v. United States (1914), the Supreme Court allowed the Senate to add an excise tax to a House revenue measure where there was no connection between the two at all other than the fact that both provisions were taxes.

In Rainey, the Court made clear that it would not inquire into the germaneness of the Senate's amendments. Quoting a lower court decision, it explained that "the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated act of Congress, it is not for this court to determine whether the amendment was or was not outside the purposes of the original bill."

[Adam]

This was an argument at the time, and despite the fact that it's technically correct, it's just not going to hold water, in all likelihood. There are lots of pieces of legislation that have filled up "hollowed out" House bills over the years. IIRC, the Civil Rights Act is one of these pieces of legislation. It's an ass-backward way of getting legislation done, and frankly it should result in a lot of criminal charges against legislators for illegally passing legislation, but this is never going to gain traction.

[Adam]

Shell bills have plenty of precedent under both parties.

Indeed. No one is immune from this, at least in the last 100 years or so of the US House and Senate.

While I would love for this to be a valid method of eradicating the poison that is Obamafail, this is highly unlikely to gain traction in the courts, unless they are really interested in turning over legislation that is over a century old. Ain't gonna happen.