Justice Scalia's Textualism on Display

Justice Scalia's commitment to a strict textualist approach to statutory interpretation was on full display in his concurrence in a recent U.S. Supreme Court decision construing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Scalia joined Justice Sotomayor's majority opinion in Milavetz, Gallop & Milavetz v. United States -- except for one footnote, in which Sotomayor cited a House Report and hearing testimony despite noting that "reliance on legislative history is unnecessary in light of the statute’s unambiguous language." Scalia summarized his oft-repeated objections to the use of committee reports as follows:

Such statements tell us nothing about what the statute means, since (1) we do not know that the members of the Committee read the Report, (2) it is almost certain that they did not vote on the Report (that is not the practice), and (3) even if they did read and vote on it, they were not, after all, those who made this law. . . . Even indulging the extravagant assumption that Members of the House other than members of its Committee on the Judiciary read the Report (and the further extravagant assumption that they agreed with it), the Members of the Senate could not possibly have read it, since it did not exist when the Senate passed the [bill]. And the President surely had more important things to do.

Scalia then invoked the principle that, if the statutory language is clear, there is no reason to go beyond it -- and there may be good reasons for not doing so:

Our cases have said that legislative history is irrelevant when the statutory text is clear. See, e.g., United States v. Gonzales, 520 U. S. 1, 6 (1997); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 254 (1992). The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say.

The Constitutionality of the "Deem and Pass" Approach to Enacting Health Care Reform

There is an interesting debate brewing over the constitutionality of the so-called "deem and pass" mechanism (also known as the "Slaughter solution," after Rep. Louise Slaughter) being considered by congressional Democrats for passing the health care reform bill. Jack Balkin explains the "deem and pass" approach and argues that, if done in the right way, it would meet constitutional requirements. In a later post, Balkin also argues that any challenge would likely be thrown out at the threshold as non-justiciable under the "political question" doctrine. Former Judge Michael McConnell argues the other side of the debate. The House Rules Committee, chaired by Rep. Slaughter, issued a memo yesterday in defense of "deem and pass."

Inside The House Dems' Health Care Persuasion Campaign

With the House aiming for a health care reform vote by the end of this week, TalkingPointsMemo has an inside account:

Democratic leaders and President Obama have mounted a major persuasion campaign, trying to get the party on board with the all-speed-ahead push on health care reform legislation. They are offering wavering members - who voted "No" the first time around or are thinking to switch and oppose health care this time - in-person talks with the president and are walking members through how health care reform would help constituents in each lawmaker's district.

Time Magazine has an estimated schedule of the process that the bill will go through this week. For the latest developments, stay tuned to the New York Times Prescriptions blog. Here is an account (with video) of Obama's pitch for the bill at a rally in Ohio today. Finally, here is Nate Silver's interesting analysis of whether the Democrats are likely to get the necessary 216 votes.

President Obama's final challenge on healthcare: corralling votes

From The Hill:

President Barack Obama's persuasive skills will be put to the test over the next week.

The commander-in-chief has given hundreds of speeches on healthcare reform, but the difference between a huge legislative success and a catastrophic failure will likely be determined in private conversations with lawmakers in the coming days. Based on the Democratic "no" votes piling up this month, it is clear Obama has a lot of calls to make.

Obama Calls for Sweeping Overhaul in Education Law

From the New York Times:

The Obama administration on Saturday called for a broad overhaul of the Bush administration’s No Child Left Behind law, proposing to eliminate divisive provisions, including those that have encouraged instructors to teach to tests, crowded out subjects other than math and reading, and labeled one in every three American public schools as failing.

The proposals, if approved by Congress, would replace the current law’s pass-fail school grading system with one that would measure schools not only with test scores but also with indicators like pupil attendance and the learning climate in classrooms.

And while the proposals call for vigorous interventions in failing schools, they would also reward top performers and lessen federal interference in tens of thousands of reasonably well-run schools in the middle.

Here is President Obama's argument for the new approach in his weekly address:

Student Loan Overhaul Taking Filibuster-Proof Route To Overcome Corporate Opposition

As Dan Froomkin explains on Huffington Post, the reconciliation bill that congressional Democrats intend to use to pass health care reform may also include an overhaul of the student loan program, in order to overcome the influence of lobbying by private lenders who earn billions of dollars from the existing program:

Having finally decided to use the filibuster-proof budget reconciliation process to push health-care reform over the finish line, Democratic leaders have tentatively agreed to attach a long-sought overhaul of college financial aid to the measure.

That's because health care and federal financial aid have something very significant in common: Hugely powerful corporate interests devoted to preserving the status quo -- and willing to spend vast amounts of money on campaign donations, lobbying and PR to fight change

Will the Final Health Care Legislation Contain Special Deals for States?

To obtain Senate passage of the health care bill in December, Democratic leaders cut special deals for particular states, such as the notorious "Cornhusker kickback" for Nebraska. As the Associated Press reports, some Democratic senators are now fighting White House efforts to delete all of these deals from the final legislation.