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Budget Reconciliation and the Constitution

March 4, 2010 - by Donny Shaw

As the Democrats solidify their plans to use the budget reconciliation process to amend the health care bill, a new argument is bubbling up among Republicans — that what they are attempting to do is unconstitutional. Sen. Orrin Hatch [R, UT], for example, wrote in the Washington Post this week that the Democrats’ plan is “an abuse that stifles dissent and badly undermines our constitutional checks and balances.”

OpenCongress commentors are expressing similar ideas. “The legal ability for Congress to use this method sounds shaky at least,” writes ryandsmith. “I have no idea how they are doing this while keeping within the mandate given to Congress by the US Constitution.”

The fact of the matter is that in using budget reconciliation to finish health care the Democrats are squarely within the bounds of congressional rules that were established on a bipartisan basis using constitutionally given powers.

Article 1, ยง5, Clause 2 of the U.S. Constitution gives Congress the power to set its own rules:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

In 1974, Congress called upon this power to revamp the congressional budgeting process with the Congressional Budget and Impoundment Control Act. The bill established the Senate and House Budget Committees, created the Congressional Budget Office, changed the dates of the fiscal year, set forth the federal budgeting procedure that is still used today, and more. It also set up the budget reconciliation process, whereby Congress can include reconciliation directives in their annual budget resolution and then pass provisions relevant to that directive under a limited debate perios and with limitations on what kinds of amendments can be offered. You can read the legal code governing the process here.

Furthermore, The Congressional Budget and Impoundment Control Act of 1974 that established the budget reconciliation process was thoroughly bipartisan. It was sponsored by Rep. Al Ullman, a Democrat, and cosponsored by 8 other Democrats and 7 Republicans. It passed the House on a bipartisan vote of 386-23 and it passed the Senate on a unanimous vote of 80-0.

The current Congress is following the budget reconciliation rules by the letter. As required by law, Congress’s budget resolution for 2010 (S.Con.Res.13) contains language giving both the Senate and the House authority to use reconciliation to pass health care reform legislation if thy fail to pass under normal procedure. Since they have failed to enact the legislation, the Democrats are calling on this power now to finish the job. This is exactly what the budget reconciliation process is for — finishing legislation that was factored into the annual budget. “Since both houses have acted but some work remains to be done to align the two bills, using reconciliation to implement the instructions in the budget resolution follows established congressional procedure,” health care expert New England Journal of Medicine (.pdf) wrote recently in the New England Journal of Medicine.

Of course, there are restrictions to what can be passed under budget reconciliation. There are six specific characteristics that can disqualify a provision, mostly for not being relevant enough to the budget. That’s why Congress wouldn’t want to try to pass the entire health care bill under budget reconciliation; most of it wouldn’t qualify under the rules. Fortunately for them, they have passed the vast majority of the bill already with a supermajority in the Senate and with a majority vote in the House. The bill passed under normal procedure with amendments and filibusters contained most of the contentious stuff, like the individual mandate, the public option (in the House), insurance regulations and the language regarding abortion. The amendment they are looking at passing under budget reconciliation will be tailored to qualify under the six restrictions. If some part of the amendment doesn’t qualify, the Congressional Budget and Impoundment Control Act gives the minority party the authority to call it out of order and appeal to the Parliamentarian of the Senate for its removal.

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