Date: 2010-03-19
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. I thank the gentleman for yielding. I thank the gentleman for the courtesy on this floor. I admire courtesy and civility here. I just wish we had more of it on both sides from time to time. particularly as we are in these contentious days dealing with one of the most important issues of our timethe health care bill. I would stand in support of all the things that the gentleman from Florida said about this rule making in order these two bills. It is not unusual for us to make in order two bills under a rule. but what I would suggest is that that is somewhat different than what we evidently are going to be asked to do later this weekend. As I understand it from the ranking member on the Rules Committee. it is contemplated that we will have a rule that will be "selfexecuting" dealing with a substantial portion of the American economy. that is the entire arena of health care. I dont think enough attention has been given to the difference between the appropriate procedure that we are enacting here versus that which is to go forward later this weekend. I served in this body in the 1980s and then left and came back about 6 years ago. In the intervening time there was an effort. on a bipartisan basis. made by this House and the Senate. with the signature of the President. on a piece of legislation that was called the lineitem veto. The lineitem veto was a process that was contemplated which would allow the President of the United States to receive an appropriation bill from the Congress and then to look at that appropriation bill and find out and decide whether there were certain items that he thought were not appropriate. theres too much spending in an overall appropriations bill. It would have given the President the right to sign the overall bill. but on the one hand. to take out. X out. line out certain items. And so this provided a constitutional question before the Supreme Court in the case of Clinton v. City of New York. because they had to wait until the President actually exercised the right presumably given to him by the legislation passed by this Congress. And so the question was: Was that manner in which laws were passed consistent with the requirements of the Constitution? And the Constitution sets out the terms under which were able to pass laws. Essentially. it says three things must happen: It must pass the House of Representatives. it must pass the United States Senate. and it must be presentedits called presentmentpresented to the President and signed by the President. Interestingly enough. in the majority opinion written by Justice StevensI believe the longestserving member of the U.S. Supreme Court at the present timewhen he investigated it. he said this. He said. The Constitution requires that it be the exact text in all three circumstances. Those are his words. The exact text. He went on to say that if in fact a paragraph were absent from the law that the President signed. meaning the President exercised his line item veto and had taken it out. it would invalidate the constitutional requirement for passage of a law because it would not be the exact text. So. as I understand it. contrary to the rule that we are debating here today. the contemplated rule to cover the health care bill will say something along the lines of: We incorporate a bill which will be deemed to have passed if we pass the rule. or other language to say: thereby passing. So then you will have the interesting question of whether or not we are acting onthat is. I as an individual Member of Congress representing my constituencyI am voting on the "exact text" as was voted on in the Senate. which then goes to the President for signature. And I would argue that if you cannot remove a paragraph from the "exact text." as the Supreme Court told us. in any of the three aspects of the bill. that you cannot add text. And that is. if you have a rule which incorporates the bill. you naturally have other language that goes along with it. particularly if it makes reference to other subject matter. And so in contrast to the rule we have here. which should be supportable under the circumstances that it does not violate the Constitution in any way. shape. or form. even though it is a little different than when we adopt a rule that permits two bills to come to the floor. in the instance of having a selfexecuting rule we will then be presenting to the Supreme Court a constitutional issue upon which they have not directly ruled. It is. however. my interpretation of their ruling in Clinton v. City of New York that it is the mirror image of what the court found to be unconstitutional. That is. if the exact text requirement cannot be fulfilled by removing a single paragraph from the text. similarly. if you add language to the text in the vote that is presented to the membership. it would be not the same thing. so that we would be prohibiting the Members of this institution. the House of Representatives. from their constitutional obligation to vote on the exact question presented in the other body so that that same exact question can be presented to the President of the United States for his signature. Now I understand that some say. Aha. theres another section of the Constitution which says that the House of Representatives and the Senate in their respective bodies shall be the sole arbiter of the rules of their Chambers. And that is true. But it is also true that we cannot. by our rules. do what is otherwise unconstitutional. And so Members should understand that while. unfortunately. when we debate rules often times theres the absence of many of our Members here. because the rules process is considered to be technical. in some ways taken for granted. in other ways nonobjectionable. not rising above the ordinary. with all due respect to the members of the Rules Committee. In the instance of a selfexecuting rule. socalled. on one of the most controversial issues presented to this Congress. certainly in my years of service here. we cannot blithely dismiss legitimate questions about what our obligation is here. I have said on this floor before. and I continue to say. the Constitution is an inconvenient truth. A couple of weeks ago. I had the opportunity to be in a meeting with Justice Scalia. Justice Scalia made an interesting point. He said. The essence of a democracy or a democratic republic such as ours is. majority rules. If majority rules. you dont have a democracy. But he said one of the unique things about America is that we have some limitations on majority rule. Those limitations are found in the Constitution and the Bill of Rights. They limit what the majority can do and protect minority rights. But he said. The interesting thing is. those limitations were imposed on the majority by the majority. In other words. it is through the adoption of the Constitution that the majority has limited itself. And he suggested that that should give caution to members of the court to not supersede their legitimate authority by finding new limitations on the majority that were not contemplated by those who adopted the Constitution. and if you need further limitations or protections of minority interests. the way to do that is to amend the Constitution. which is again done by the majority. Similarly. I would suggest. that those of us who take an oath to uphold the Constitution as representatives of our constituents in this body must follow the dictates of the Constitution and the limitations of the Constitution. In some language in that case that I cited earlier. the 12yearold case of Clinton v. City of New York. the court talked about how it may or may not be a good public policy that the law that was otherwise found to be unconstitutional. that the fact that it may or may not be good public policy is irrelevant to the question of whether its constitutional. So the argument that we have presented to us here most recently in a nationally televised interview by the President of the United States. that whatever vote takes place is going to be on health care and therefore its okay. and hell sign it. forgets the inconvenient truth that the Constitution does not permit us to do that. and it does not permit the President to do that. So while a lot of people are talking about the fact were going to be here over the weekendand thats extraordinaryI would wish that we would concentrate on the more extraordinary question of whether we are following the Constitution. Because if in fact we circumvent the Constitution by "allowing" a bill to become law in which each Member of the House and the Senate did not have the opportunity to vote on the exact language. we are not punishing the Members of Congress. we are punishing our constituents. who have a constitutional right to have laws passed in the way that is articulated in the Constitution. which provides specificity as to how that is done so that the power of the Federal Government will be exercised in the limited sense that was given to it by the people through the Constitution. And so while I support all of the comments made by the gentleman from Florida with respect to this rule and find this rule to be relatively noncontroversial and to be more of the same. the rule that we are being told of that we will consider this weekend is not more of the same. is not ordinary. is in fact extraordinary. and I would suggest such an extraordinary stretch that it will be rendered unconstitutional. Why would we follow a procedure that will call into question the very constitutional foundations of the contents of the bill if in fact it is such an important issue? If it in fact is something that needs to be dealt with with such urgency. ought we not to follow the Constitution in each and every aspect and ought we not be guided by the most recent decision of the Supreme Court on a law which we thought was a good law on a bipartisan basis. but which. unfortunately. the Constitution does not allow us to enact. 1l 1000 And I would hope that my colleagues who may not be here on the floor but may have an opportunity to review these remarks will take seriously my concerns. We may very well be preparing to embark on an unconstitutional journey which not only will take the healthy skepticism that our Constitution provides for governmentnot rejecting government. but we have a healthy skepticism of the power of government that is a part of our constitutional processbut we will turn it from a healthy skepticism to an unfortunately destructive cynicism. And if there is anybody who believes that is good for this country. I would suggest they are wrong. This is a tough issue that were going to have to deal with later this weekend. Let us at least do it in a constitutional way. and let us not pass something for the American people that will be called into question in court challenge after court challenge after court challenge and delay the impact or implementation of whatever we believe on a bipartisan basis ought to be the governing law with respect to the health care system. So with that. I thank the gentleman for his time. and I thank the gentleman for his courtesy.