Tuesday, March 16, 2010

The House may pass health reform without ever voting on the Senate bill.

The House may pass health reform without ever voting on the Senate bill. How is that possible? They will use the “self-executing rule.” What is that? Here is an explanation prepared by the Congressional Research Service.


“Self-Executing” Rules Reported by the

House Committee on Rules

Walter J. Oleszek

Government and Finance Division

House Rule X assigns the Committee on Rules jurisdiction over the “order of business of the House.” The panel’s most noteworthy responsibility is to issue order of business resolutions; these are usually called “rules,” “special rules,” or, less commonly, “special orders.” Chamber adoption of these rules accomplishes two main objectives: it permits the House to take up measures that typically lack a convenient right-of-way to the floor, and it defines the procedural playing field — for example, time for debate and the structure of the amendment process — for considering legislation. The committee’s important scheduling role has meant that congressional scholars and others have classified rules in various ways. For example, an “open” rule affords any lawmaker an opportunity to offer amendments to a bill so long as they are in compliance with the House’s standing rules; a “closed” rule forbids anyone from offering amendments with an exception sometimes made for amendments recommended by the committee that reported the measure. Starting about twenty-five years ago, in response to developments such as increased partisanship and uncertainty with respect to how long or controversial the amendment process on the floor might be, the Rules Committee began to issue more procedurally imaginative and complex rules.

Definition of “Self-Executing” Rule. One of the newer types is called a “selfexecuting” rule; it embodies a “two-for-one” procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision. It was automatically agreed to when the House passed the rule. Rules of this sort contain customary, or “boilerplate,” language, such as: “The amendment printed in [section 2 of this resolution or in part 1 of the report of the Committee on Rules accompanying this resolution] shall be considered as adopted in the House and in the Committee of the Whole.”

Traditional Use. Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills. As mentioned in the precedents (House Practice by Wm. Holmes Brown and Charles W. Johnson), selfexecuting rules for these purposes eliminate “the need for a motion to dispose of the [Senate] amendment.” Brown and Johnson further state that such resolutions are sometimes called “hereby” special orders “because the House, in adopting the resolution as drafted, ‘hereby’ agrees to the disposition of the [Senate] amendment as proposed by that resolution. If the House adopts a resolution, no further action by the House is required. The [Senate] amendment is never before the House for separate consideration.” “Hereby” or self-executing rules have also been used to adopt concurrent resolutions correcting the enrollment of measures or to make other technical changes to legislation.

Contemporary Use. Self-executing rules are still employed on matters involving House-Senate relations. They have also been used in recent years to enact significant substantive and sometimes controversial propositions. Examples from the Congressional Record will illustrate:

· On August 2, 1989, the House adopted a rule (H.Res. 221) that automatically incorporated into the text of the bill made in order for consideration a provision that prohibited smoking on domestic airline flights of two hours or less duration.

· On March 19, 1996, the House adopted a rule (H.Res. 384) that incorporated a voluntary employee verification program — addressing the employment of illegal immigrants — into a committee substitute made in order as original text.

· H.Res. 239, agreed to on September 24, 1997, automatically incorporated into the base bill a provision to block the use of statistical sampling for the 2000 census until federal courts had an opportunity to rule on its constitutionality.

· A closed rule (H.Res. 303) on an IRS reform bill provided for automatic adoption of four amendments to the committee substitute made in order as original text. The rule was adopted on November 5, 1997, with bipartisan support.

· On May 7, 1998, an intelligence authorization bill was made in order by H.Res. 420. This self-executing rule dropped a section from the intelligence measure that would have permitted the CIA to offer their employees an early-out retirement program.

· On February 20, 2005, the House adopted H.Res. 75, which provided that a manager’s amendment dealing with immigration issues shall be considered as adopted in the House and in the Committee of the Whole and the bill (H.R. 418), as amended, shall be considered as the original bill for purposes of amendment.


Sure, the Republicans will yell about the Democrats using the self-executing rule. But then they always yell that anything the Democrats do is unconstitutional. And yes, expect some Republicans to challenge the constitutionality of passing health reform this way. And yes, Scalia, Thomas, Alito and Roberts will rule that whatever the Democrats do is unconstitutional and a violation of the Republican’s right to minority rule as they always do. Thomas' wife will lead the challenge to the law. You betcha!

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