Wednesday, March 17, 2010

Careful with that Enrolled Bill Doctrine
Mike Rappaport

Some people are arguing that the enrolled bill doctrine forecloses judicial review of the Slaughter Solution should the Health Care Bill be enacted through that method.  For a more nuanced post, see here.  Not so fast.  While the enrolled bill doctrine (which suggests more or less that a bill sent by the Congress to the President is assumed to be the one voted upon by both houses of Congress) might apply, it is by no means certain. 

First, that doctrine arose in a case involving an alleged discrepancy between the bill voted upon and the bill sent to the President.  The latter was said to omit a paragraph, by inadvertence or intention.  But that type of issue involves the details of running a legislative assembly, and it might have been quite difficult, in 1892, for outsiders to know what the legislative assembly actually voted upon.  So it made sense to foreclose judicial review of those matters.  But we have a different issue concerning the Slaughter Solution.  The Slaughter Solution involves both a provision in a rule that deems a bill passed and an attempt to combine different bills together.  This is not a question of details, but a question more of power and constitutional provisions (such as Article I, sec. 7).  Second, even if one did believe that the issue in Field v. Clark was the same as that involving the Slaughter Solution, times have changed.  To the extent that the enrolled bill doctrine was based on considerations of practicality and inefficiency, those have been changed over time with the computer and printing revolutions.  

Another Supreme Court case involving compliance with legislative rules provides some guidance.  In U.S. v. Ballin, decided the same year as the enrolled bill doctrine case of Field v. Clark, the Court considered a method for determining whether a quorum existed in the House.  The Court wrote:

The question, therefore, is as to the validity of this rule, and not what methods the speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time.

[While the Constitution requires a majority for a quorum], how shall the presence of a majority be determined? The constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count, as the sole test; or the count of the speaker or the clerk, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact; and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the house may adopt either or all, or it may provide for a combination of any two of the methods.  (Emphasis added)

This case is potentially relevant in various ways.  First, it suggests that the legislative rules cannot ignore constitutional restraints.  The Slaughter Solution arguably does that.  Second, where the Constitution does not specify a rule or method for determining a result, the legislative house can adopt a rule where there is a reasonable relation between the method of proceeding and the result to be obtained.  Is deeming the passage of a bill -- and is combining bills together in a rule when the other house has voted on them separately -- a reasonable way of enacting the exact same bills as the other house?  Perhaps yes, but perhaps no.  And Ballin would appear to suggest that the judiciary may ask and answer that question.

Let me be clear.  I am not saying that the enrolled bill doctrine does not apply and that Ballin clearly suggests there is judicial review (or that the Slaughter Solution is unconstitutional).  My point is that these matters are complicated and that is quite possible that the Slaughter Solution might not only be unconstitutional, but also judicially reviewable.   

Note: Unfortunately, I had to write this post quickly and didn't have time to double check every detail.  If readers discover any errors, especially concerning the cases, please let me know.

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Mike Rappaport


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