Constitutionality and the Healthcare Bill

[John Wonderlich]

Just finished some thoughts on the discussion over parts of the healthcare bill which limit the ability of future Congresses to amend it.  Thanks to Michael Stern for sending some resources by email last year.

http://www.theopenhouseproject.com/2009/12/22/can-one-congress-bind-another/

Can One Congress Bind Another?

December 22nd, 2009 by John Wonderlich · No Comments

There’s a discussion now on RedState and Volokh Conspiracy about whether the Senate healthcare bill contains an unconstitutional provision.

The section (3403) of the bill in question (HR 3590) sets up an independent medicare advisory board to make certain determinations about medicare.

That section of the bill also purports to create significant constraints on how the House and the Senate can amend the law in the future.  Those constraints, while they look like chambers’ rules changes, would also be inserted into law.  Specifically, the provision amends Title 42:

(1) IN GENERAL- Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), as amended by section 3022, is amended by adding at the end the following new section:

Section 3403 stipulates, among many other things, that, “it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”
There’s debate about a few things here:

*Should Congress should delegate these particular functions to an independent board, or reserve them for itself? (A Substantive Question)
*A Procedural Question: Is a two thirds requirement (in the Senate) necessary for the contested Senate vote?  (That is DeMint’s point from the RedState post.)
*A Separation of Powers Question: Can putting a rules change into statute really bind a future Congress?

I’m particularly interested in the third question.

This law review article explains the “Statutizing” of procedural rules, and gives some context for whether Congresses can bind future Congresses by Statute.  The short answer is no.

Generally, the House and Senate set their own rules, independent of the President’s approval (or veto), as the Constitution grants them the freedom to do.  Periodically, though, Congress will pass, as statute, changes to House and Senate rules, which the President then signs into law.  It’s mildly repugnant to me that the House and Senate would volutarily subject their self-determination to a realm which the President can control (by vetoing a future change).

Quoting the linked article:

When the legislature statutizes the rules of debate, it gives
the president a say in a sphere of activity where, constitutionally speaking,
he should have no voice.  Giving the president a role in setting legislative
rules would seriously alter the distribution of policymaking power between
the branches and violate the constitutionally mandated sovereignty of the
legislature over its own internal affairs.

This makes the provision look like a major abdication.  It turns out, though, that such language is not only commonplace, but it doesn’t bind either chamber:  (again the article)

both chambers of Congress appear to have come quite firmly to believe that the
Constitution grants them the prerogative to abrogate by unilateral action
any statutory provision that concerns internal affairs within the purview of
the rules power.  Their parliamentary guides are confident on the matter,
stating that it “has been settled that Congress may not by law interfere with
the constitutional right of a future House to make is own rules.

Indeed, the Senate bill has just such an acknowledgement, which is also commonplace (for statutized rules):

‘(5) RULES OF THE SENATE AND HOUSE OF REPRESENTATIVES- This subsection and subsection (f)(2) are enacted by Congress–

‘(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of bill under this section, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

‘(B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

If putting procedural rules into statute doesn’t bind future Congresses, since both houses are free to change their rules, then what purpose does putting a rules change in statute have?  It probably just adds a layer of seeming permanence, creating the appearance of self-restraint that may be politically expedient for any number of reasons.

If you’re interested in reading into all the reasons that one Congress can’t make laws that govern another Congress, I’d highly recommend the law review article, which is accessibly written, even though it’s about fast track trade agreements.

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