Budget Reconciliation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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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.