Incorporation Frustration

You remember how the House GOP was trying to pass laws without the Senate or the President agreeing? Yeah, about that....

So it looks like the big to-do over the House deeming its work to be law without the consent of the Senate or President may have been more about media spin — and the failure of the House leadership to be clear — than reality. The bill caused all the fuss by incorporating H.R. 1 within itself, a perfectly suitable legislative device. But that action appears to have been misunderstood as purporting to enact law without the required Constitutional process:

There is no specific provision in this bill that says the roles of the Senate and president are to be discarded. The only basis for saying this is that “hereby enacted into law” language — language that, again, is commonly used in bills — and which makes sense if you view this as a bill incorporating another bill, whose provisions will indeed be enacted into law if the Senate approves the bill and the president signs it….

There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn’t want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President’s desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.

…. The Senate will still have to pass this bill. The president will still have to sign it. There is nothing unconstitutional about that.

Patterico also notes that the bill opens with the usual language: ‘Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled…” — which cuts against the notion they were trying to do an end-run around the most basic of their Constitutional duties.

I admit, I got fooled here, too. So many people from across the spectrum were describing this bill the same way, I just presumed it was some sort of publicity stunt. That’s what I get for relying on media accounts instead of looking to the text of the bill itself when I see something that doesn’t look right. As often as they get even simple facts wrong, I should have learned by now.

FILED UNDER: Media, Political Theory, US Politics, ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. It is just a publicity stunt. Just like H.R. 1, there’s absolutely no chance this bill would ever pass the Senate or get signed into law by the President. And Eric Cantor pretending that it actually meant something was just silly., which was my point when I posted about this originally.

  2. Tano says:

    Is the text of H.R.1 actually included in HR 1255?

    If not, then how can you consider it passed if the actual text that is supposed to become law is not actually voted on – it is just referred to in the actual enabling legislation?

  3. wr says:

    Dodd — Don’t your arms get tired carrying so much waters for the clowns in the House Republican caucus?

  4. hey norm says:

    it certainly didn’t hurt that Cantor said: “…“if the Senate fails to pass a measure before April 6, 2011 providing for the appropriations of the departments and agencies of the Government for the remainder of fiscal year 2011, H.R. 1 becomes law.”
    the so-called republicans are more interested in gimmicks than governing.

  5. Jay Tea says:

    wr, does that one brain cell of yours ever get lonely?


  6. ponce says:

    Poor fringe right Republicans…perpetually playing the victim card.

  7. tps says:

    Better then playing the perpetual racist/homophobe/etc card.

  8. Herb says:

    “I admit, I got fooled here, too”

    Happens a lot these days…..

  9. steve says:

    “That’s what I get for relying on media accounts instead of looking to the text of the bill itself when I see something that doesn’t look right. As often as they get even simple facts wrong, I should have learned by now.”

    This was not just a media problem. Adler at Volokh also got it wrong. Lots of lawyers got this wrong. The only person I know who picked up on it right away is studies constitutional law as a hobby. At any rate, incorporation has been used enough times that it meets constitutional standards, but it is used uncommonly enough that people dont pick up on it right away.


  10. ponce says:

    “Better then playing the perpetual racist/homophobe/etc card.

    Haha, think of it more as payback for death panels 🙂

  11. Chad S says:

    When a fluff conservative bill is too much for even Gohmert, Chaffetz, Lungren, Poe, Rohrabacher
    Sensenbrenner to vote for(and Gohmert took to the floor declaring it unconstitutional), it says a lot about this craptacular of a bill and the people who pushed it.

  12. sam says:

    I didn’t read the text of the bill, but I did see Cantor make the claim:

    Now, I’ll admit the possibility of selective editing, but he does seem pretty emphatic about it, and he said it twice. Oh, and Boehner looks like he’s swallowed a lemon whole, or maybe he’s gonna break out in tears, or something.