House Adopts the Government Shutdown Prevention Act

UPDATE: The House has adopted the Government Shutdown Prevention Act by a vote of 221 - 202. Fifteen Republicans and all House Democrats voted against the measure with one Republican voting present.

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This bill, which has the force of law -- it is not a resolution -- is called the Government Shutdown Prevention Act.

It will be on the floor late morning or mid-day Friday. Debate on the "rule" could start earlier with debate on the actual legislation later.

Guidance on this bill is not to get too revved up about this. This is largely a "window dressing" measure that gives the House the ability to thrown down yet another marker and tell the Senate, look, pass something.

In short, this bill would send HR 1 to the president for his signature if the Senate also approves some bill to keep the government open (only if it trims say just $1). The House bill is completely contingent on the Senate moving and the president signing it into law to keep the government operating past April 8.

Here's what everyone is exercised about: there is a clause in the bill that says if the House approves this package it is "hereby enacted into law." Furthermore, House Majority Leader Eric Cantor, R-Va., muddled things Wednesday at a press conference when he said this bill would become "law of the land."

So what's up?

No. This isn't Nebraska, where they have a unicameral legislature. The phrase "hereby enacted into law" is a seldom-used, but not unprecedented device, which is called "incorporation by reference." What this essentially does is keep the House from having to reprint all of the original $61 billion bill they passed in February, and gives this measure the force of law if -- and only if -- the Senate acts.

This can be described as an ignition in a car. Without the ignition, the car can't go. Without this term of art, the bill can't potentially become law.

So, it's not really as "unconstitutional" as some are suggesting.

But that said, there is another Constitutional issue here which is potentially more problematic.

This bill would keep lawmakers from getting paid during a government shutdown.

Essentially, it keeps the government from disbursing checks to lawmakers.

But the 27the Amendment says that Congress shall not vary the pay of lawmakers before an intervening election. In other words, the House could pass this. But Constitutionally, they are not allowed to vary their own pay until after the 2012 election.

So, this could potentially prevent the guy at payroll from cutting their checks on time. But Constitutionally, Congress must be paid at the present rate whether the government shuts down or not.