Tuesday, March 16, 2010

Pelosi's Slaughter The Constitution Plan Part II

. . . We have entered a political wonderland, where the rules are whatever Democrats say they are. Mrs. Pelosi and the White House are resorting to these abuses because their bill is so unpopular that a majority even of their own party doesn't want to vote for it. Fence-sitting Members are being threatened with primary challengers, a withdrawal of union support and of course ostracism. Michigan's Bart Stupak is being pounded nightly by MSNBC for the high crime of refusing to vote for a bill that he believes will subsidize insurance for abortions.

Democrats are, literally, consuming their own majority for the sake of imposing new taxes, regulations and entitlements that the public has roundly rejected but that they believe will be the crowning achievement of the welfare state. . . .

Wall St. Journal, Slaughter House Rules, 16 March 2010

Pelosi does not yet have the votes to pass the Senate's Obamacare bill and it is a real question whether she will ever them. As an alternative, Rep. Louise Slaughter, head of the House Rules Committee, came up with a plan to have the House pass a bill with changes to the Senate bill to make it acceptable to Democrats in the House, while at the same time "deeming" the Senate bill to have passed without ever having to vote on it. According to the Washington Post, it is an option Crazy Nancy seems ever closer to choosing.

As I pointed out here, that violates the expression provisions of Article I, Sec. 7 of the Constitution. As WSJ explains today, that provision provides that "no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 'the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.'" The Slaughter the Constitution plan of "deeming" the Senate bill passed obviously would run afoul of those requirements.

When I wrote my post, I pointed out that I was unaware of any particular precedent that would weigh on this issue beyond the plain language of Art. I, Sec. 7. Since then, Andy McCarthy at NRO pointed out a Supreme Court case very close to being dead on point:

[I]n Clinton v. City of New York (1998), . . . the Supreme Court held the line-item veto unconstitutional, Justice Stevens's ruling explained that for a bill to become law, both Houses of Congress must vote on precisely the same text, and it must then be signed into law by the president. As they quote the decision:

If one paragraph of that text had been omitted at any one of those three stages, Public Law 105—33 would not have been validly enacted. [Emphasis added] If the Line Item Veto Act were valid, it would authorize the President to create a different law - one whose text was not voted on by either House of Congress or presented to the President for signature.

Something that might be known as 'Public Law 105—33 as modified by the President' may or may not be desirable, but it is surely not a document that may 'become a law' pursuant to the procedures designed by the Framers of Article I, Section 7, of the Constitution.

Of course, that was twelve years ago and we now have a Court with more empathy. But if the Dems proceed according to their outrageous plan, the House will not have voted on the same 2,000 pages of paragraphs that the Senate voted on.

In light of the Constitution's plain language, and in light of the previous Supreme Court holding in the above referenced case, this doesn't appear to be a difficult legal question. If the Slaughter the Constitution plan is used, it should be struck down as unconstitutional by our Courts.

That said, it may well be "that however clear a constitutional violation may be presented by the Slaughter rule . . . there is a significant impediment to challenging that violation in federal court." That impediment comes from something called the political question doctrine under which the Courts may demur and refuse to reach the core issues. The political question doctrine arose out of the Court's "desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process . . ." As Shannen Coffin explains at the NRO:

For fence-sitting Dems, the rule permitting the health-care bill to be "deemed" passed by a vote on reconciliation seems aptly named. Nancy Pelosi seems hell-bent on leading her little lambs to the slaughter. Regarding Andy's point that the rule would likely withstand a constitutional challenge in court despite its apparent conflict with the textual requirement of bicameralism and presentment, Andy is correct. The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. . . .

Our Courts seemingly have little problem ignoring the polical question doctrine on all those many occasions when they apply judicial activism to usurp the power of the legislature and alter the social policy of our nation per their whim. Abortion, gay marriage, the "seperation of Church and State" are just a few of the issues where Courts have usurped the power of the legislature to write their own policy preferences into law. Thus it would be true irony were the Courts to rely on the doctrine in this case. They would be allowing an act to stand that goes far beyond mere social policy and strikes at the very core of our version a Constitutional Republic, It is the type of situation in which the Court's duty to stand as guardians of our Constitution are at their zenith. Yet there is every reason to be pessimistic on this one, unfortunately.

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