Constitutional Violation Blocks Forward Motion on S. 510 Food Safety Bill

Monday, December 6, 2010 @ 03:12 PM
posted by Beth Clay

December 6, 2010: While the Senate voted to pass the newer version of S. 510, the Bill may not actually make it to the President’s desk for signing into law this year after all. We are now learning that Senate staff were informed from the outset that the ‘reinspection fees’ provision of S. 510 violated the Constitutional provision that states that all tax provisions (any provision in legislation that levy’s fees) must begin in the House of Representatives.

Typically there would be a Conference process where members of the House and Senate of both parties would sit down and work through the differences in the two Bills. However, because the Congress is running out of time, (the 111th session of Congress ends at the end of 2010), the leadership determined they would side step this process and simply send S. 510 to the President. This is not a new or unusual sidestepping, but typically only happens when there is no controversy attached to legislation. The rules that govern the parliamentary procedures allow for such an action, but with the Constitutional violation, this is not possible.

Keep in mind, the conference process would have been arduous and filled with opportunities to make the Bill unpassable in either the House or the Senate because the House food safety bill passed earlier this year is completely different than the Senate version. As one staffer said, “they are similar in name only”.

The issue is not dead however; there is much negotiating going on between the House and Senate Leadership. One discussion is to introduce S-510 with a House number and to pass it quickly. There is not, as yet, an agreement to do this because with the fee provision, both the Energy and Commerce and the Ways and Means Committees have to vote it out of Committee. So far, the Ways and Means Committee is rejecting the Senate created language. Keep in mind that this Committee sees more than just this Bill being affected. Such a move would, in the minds of some, undermine their Constitutional authorities and lessen their power.

Congress will remain in session probably right up until Christmas and is entrenched in other matters related to the Bush era tax cuts that expire at the end of the year, the unemployment benefits extension issue, and the military’s Don’t Ask, Don’t Tell Policy.

While the Bill that passed was much better than what we started with in 2009, the core issues of expanding FDA’s authorities remains problematic at the core. We cannot assume that S. 510 is dead. We will keep you posted.

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