Here is a further explanation I received. -------- Original Message -------- Subject: RE: is the Health Care Bill and entrenched statute Date: Tue, 22 Dec 2009 09:02:30 -0500 From: Chris SCHROEDER <[email protected]>
The Reid health care bill, which is available here, ( http://democrats.senate.gov/reform/patient-protection-affordable-care-act.pdf )appears to contain several "shall not be in order" provisions. The only one I have looked at in any detail (which is to say that I have skimmed it) sets up an independent Medicare Advisory Board that is empowered to propose steps to reduce Medicare spending whenever projections indicate that spending will exceed the target growth rate for the year. The Secretary of HHS is then required to implement those proposals unless Congress enacts legislation "pursuant to this section." The bill also sets up a procedure for any member of Congress to introduce such a superseding bill. It then protects this procedure through the language that Seth has quoted. It also provides that this provision can be waived only by an affirmative 3/5's vote -- the same as required to end a filibuster. There are analogs to this set up in current law. The current federal budget process contains similar procedures: once the budget resolution has been enacted, any legislation and violates the spending or revenue levels contained in the resolution is subject to a point of order. The default rule on a point of order is that it requires a simple majority vote to waive the point of order, but many of the points of order in the budget process require 60 votes, as this one in the health bill does. Points of order are enforceable by the legislative body. I do not know of any where even an attempt at judicial enforcement has been made. There are parliamentary ways to get around a point of order by simple majority vote, but they require the chair to rule against the point of order. When a member moves to challenge the chair's ruling, another member (who wishes the point of order to be waived) moves to table the appeal of the chair's ruling. Such a procedural motion cannot be filibustered, so it takes a simple majority to table the appeal, essentially killing it. When the Republicans controlled the Senate by virtue of VP Cheney being the presiding officer, this was how the "nuclear option" -- to knock out the ability to filibuster judicial nominations -- was going to be implemented. Reports are that then Majority Leader Frist was prepared to trigger the nuclear option, but the deal struck by the gang of 14 intervened. Chris -- Jon ------------------------------------------------------------------- Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757 512/299-5001 www.constitution.org [email protected] -------------------------------------------------------------------
