WaPo:

House may try to pass Senate health-care bill without voting on it

The Hill:

Dems move closer to passing Senate bill without actual vote

These two headlines are going to be difficult to explain when the House holds its vote. How do they plan on reconciling the fact that they're reporting on an actual vote, expected to take place later this week, when they've already reported that there won't be one?

The answer, of course, is that there will be a vote, and the headlines are misleading and inflammatory.

Meanwhile, confusion (willful and otherwise) fans the flames of panic on both the left and the right, the right insisting that self-executing rules (not counting the 200+ Republicans used) are, "the greatest constitutional crisis since the Civil War. It would be 100 times worse than Watergate," and the left worrying that the procedure creates constitutional problems.

But both sides make a single fundamental error, which I'll illustrate with Jack Balkin's example, that leads to all the rest:

Ezra Klein reports that Speaker Nancy Pelosi hopes to avoid asking House Democrats to vote directly on the Senate health care reform bill; instead, she will incorporate the bill by reference in the House reconciliation bill, which will then be sent to the Senate [....] Whether or not it provides plausible deniability, is it consistent with the Constitution? Stanford Law Professor (and former judge) Michael McConnell doesn't think so. The argument is simple: To satisfy Article I, section 7's requirement of bicameralism and presentment, both houses must pass the same bill for the President to sign. If they pass different bills, no law is created, even if the President signs both.

The first flawed premise in Balkin's opening is that he believes the Senate health care reform bill will be incorporated by reference in the House reconciliation bill. It will not. Instead, the rule governing consideration of the reconciliation bill will incorporate a motion to agree to the Senate bill (actually a Senate-amended House bill). Agreeing to such a motion is perfectly routine and perfectly legitimate. The House will be presented with the opportunity to vote up or down on a measure incorporating that motion, and by adopting it will in turn adopt a procedure for agreeing to exactly the same text as the Senate passed, which will be triggered by the House's recording of a vote in favor of passage of the reconciliation bill. At no point does the House amend or otherwise alter the text of H.R. 3590 as amended by the Senate. The requirements of the Constitution are satisfied.

Mark Levin, complaining from the right, asks incredulously:

They're going to present a rule issued by [Rep. Louise Slaughter's] committee, with her as chairman, that says that the House already adopted the Senate bill, when we know it didn't?

He'd be right to be incredulous if his premise were correct. It isn't. The rule will not say that the House already adopted the Senate bill. It will say that the House, by adoption of the rule, agrees that it will manifest its assent to the Senate bill with its vote on reconciliation bill.

Can it do that? Yes it can. The House, under its constitutional prerogative stemming from Art. I, Sec. 5, determines its own rules of proceeding. All the Constitution requires of it is that approval of bills be signaled by a recording of the yeas and nays in its Journal, and that the same text be agreed to by both houses of Congress. By agreement under the rule, the House will indeed signal its agreement by the yeas and nays to the language of the Senate bill, but it will do so with its vote on the reconciliation bill.

But isn't that odd? A bit. Could the House signal its agreement to the Senate bill with its vote on a bill establishing National Unicorn Day? Yes it could, so long as the procedure is agreed to by a majority of the House beforehand, the yeas and nays are recorded on the Journal, and the text of the Senate bill itself remains unchanged in the action.

And that's exactly what happens here.

It's no different in that sense than when the Senate agrees by unanimous consent to a House-passed bill. Or when the House takes up a motion to agree to the Senate version of a bill, as opposed to bringing the bill itself to the floor and voting on that. The House determines for itself, through its own rules, whether it will accept a Senate bill by calling it to the floor and voting on it directly, or instead by agreeing to a motion to agree to the Senate version. In one case, the vote is on a pending bill. In the other, the vote is on a procedural motion. But either will do, thanks to Art. I, Sec. 5, and the idea that that would suddenly be constitutionally suspect endangers probably 50% or more of the entire body of federal law.

To Balkin's credit, he proposes later in the piece a method by which "deeming" the Senate bill passed would be acceptable:

Despite Judge McConnell's concerns, which are textually well founded, there is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

The luckiest part of this whole thing? That's exactly what the plan actually is:

Option 3: Place self-executing language in the rule for the reconciliation bill that deems the Senate amendments agreed to upon passage of the actual reconciliation bill in the House. [...] The Speaker took care to say that nothing's been finalized in terms of this decision, but her preference is clearly for #3.

Freak out over. You may resume your normal level of confusion. But there will be a vote, and the dopes who have run headlines saying there won't be would have some explaining to do when the vote is held and they report it. Except that no one will demand that of them, because ... uh...