Budget Reconciliation

Here’s a question worth mulling over.  Suppose that Senate Democrats decide to jam the health care bill through using the reconciliation process, under which only 50 votes (plus Joe Biden) are required.  They do this through a set of favorable rulings by the presiding officer (Joe Biden) saying that everything in the health care bill is related to the budget process.  Would that raise a justiciable question?  In other words, would that be more properly viewed as an interpretation of the Budget Act of 1974, which created reconciliation, or an interpretation of the Senate’s precedents dealing with cloture?  If the former is correct, then one would think that the Senate’s statutory interpretation could be challenged in court.  If the latter is true, then the issue would deal with the Senate’s rules, which would make judicial intervention highly problematic.  Moreover, would anyone have standing to challenge these actions in either case?  If so, whom?

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2 Responses

  1. Bruggenschmidt says:

    This is an interesting question in connection with various justiciability doctrines. In terms of standing, might this situation fall more in line with Coleman v. Miller than Raines v. Byrd re: legislators’ standing? This situation appears to be more in the mode of nullifying votes than an equal “institutional” injury shared by all members.

  2. Matthew Reid Krell says:

    I suspect that one’s impulsive answer will be significantly related to one’s interest in passing a comprehensive health reform package. That said, I suspect it is far more likely that if reconciliation is to be used, it will be used only on items that are unmistakably budget-related (the excise tax, insurance subsidies, a public option – would that it were so), while the arguably off-budget provisions (the individual mandate, the employer mandate, issuance reforms, McCarran-Ferguson reform) would be passed separately.

    Or maybe the House will pass the Senate bill and the Senate will pass the budget-related items from the House bill not included in their bill via reconciliation. Or any number of variations on that theme.

    The point is that I think you’ve set up a straw man. There are enough ways to avoid questionable rulings from the chair on whether particular provisions are “budget-related” that only a truly stupid Senate majority would open themselves to this. Of course, given that we are talking about the only Senate where one party can have a majority with 41% of the votes, while the other can’t have a majority with even 60% of the votes, “stupid” may not be far off the mark.