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The House Is Forcing the Senate to Act

The Senate usually defers to the People's House on spending bills, but the People's House has become a madhouse, which, according to the Cambridge Dictionary, is "a place where there is no order and control." Seems to fit.

The senators see this and are starting to prepare their own spending bills. Sen. Thom Tillis (R-NC) said: "We can't just sit and wait." Consequently, the Senate is now working on spending bills to keep the government open, as well as Joe Biden's request for assistance for Ukraine and Israel. The latter bill being worked on contains $61 billion for Ukraine, $14 billion for Israel, $14 billion for increased U.S. border security, $10 billion for humanitarian aid, and a few smaller items. Both Senate Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY) support the bill, so it is likely to pass the Senate fairly quickly. The bills to keep the government open may be a bit more contentious.

While the border spending does not relate to Ukraine or Israel, it is a sweetener to pressure Republicans to vote for the bill. Imagine what will happen to a Republican who votes against it. A primary opponent will scream: "Biden was willing to spend billions to increase border security and my jackass of an opponent voted against it."

Of course, the big question is what happens when it lands on the House's doorstep. If there is a speaker fairly soon, the bill can be brought up using the regular order. While some Republicans oppose aid to Ukraine and some Democrats oppose military aid to Israel, there are almost certainly enough votes to pass the bill.

But what if there is no speaker in sight? Could Speaker Pro Tem Patrick McHenry bring it up for a vote? Technically, he could just announce that the bill the Senate passed is now up for a vote. The members would then vote and if it passed, it would go to Joe Biden's desk for a signature.

That's when the fun would start. It is far from clear that McHenry has legal authority to bring a bill to the floor for an up-or-down vote, absent a vote of the full House giving him speaker-like powers. There would almost certainly be a court challenge led by opponents of the bill. It might even be bipartisan. McHenry knows that and has said he doesn't want to do anything except help elect a real speaker. He might even resign his pro temporeship rather than hold a vote on one or more spending bills. If he resigned, then the next person on the secret list would become pro tem and the show would start all over again.

The Constitution explicitly states that each chamber of Congress is to make its own rules. This means that the Supreme Court is unlikely to intervene in a dispute about what the pro tem can do and what he can't. More likely it would refuse the case or say: "It is up to the House to make its own rules; that is not our job." Needless to say, this could lead to chaos, with the House badly divided and Biden trying to spend money appropriated in a bill that may not have been approved according to House rules.

The confusion and ambiguity could be avoided if the House voted to give the pro tem just the power to bring Senate-approved spending bills to the floor for a vote and only in this session of Congress. However, such a bill might not pass since some members of the House think it would create a bad precedent that could be misused in the future. Rep. Kelly Armstrong (R-ND) quoted The Princess Bride and said a vote to empower McHenry is "mostly dead." Others have noted that the speaker is second in line to the presidency. Would that hold for a pro tem who had just been given some speaker-like powers?

Kerry Kircher, the top House lawyer from 2011 to 2016, said: "What is the wise course of action probably depends on how desperate the country becomes for House action if the House cannot muster a formal, affirmative vote." (V)

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