Posted on 03/12/2010 10:00:09 AM PST by Congressman Billybob
We are apparently at crunch point on the efforts of President Obama, Speaker Pelosi in the House, and Majority Leader Reid in the Senate to pass by whatever means necessary the “health reform” bill. In the national debate, however, no one has asked whether the Supreme Court has any role in this matter. It does, and it may be definitive.
There is a question of what the bill is, since there are many versions, and several are under wraps. The opponents of the bill, whatever it is, includes Democrats and Republicans who believe that the bill is ill-thought takeover of one sixth of the national economy that will increase the cost of medical care, decrease its quality, and severely damage the national economy.
But this column is not about the merits or demerits of whatever is in the bill. It is about the methods being used to push it through Congress and the consequences of ways of getting around normal, legislative passage (Article I, Section 7, US Constitution).
At this point, it looks like the House will use the Slaughter Rule to “pass” it through the House without ever having a vote on it. The about-to-be-invented Rule is named for the Congresswomen who is the Chair of the Rules Committee and came up with this idea.
Provided that the House passes the bill, then the Senate is expected to pass it by majority rule under “reconciliation.” This is a known process under a Rule proposed by the Dean of the Senate, Robert Byrd, in the mid-80's. It was developed to prevent budget bills for spending from being tied up by filibusters in the Senate. It does provide for passage in the Senate by majority vote.
However, it also provides that any provision which is not primarily budgetary cannot be included unless it is approved by three fifths of the Senate. That works out to 60 votes, the same as the filibuster rule itself.
Well then, who is it that decides whether a given provision in the bill is budgetary, or not? That would be the Parliamentarian of the Senate. When such arcane questions arise in the Senate, the Parliamentarian is asked to give his opinion. But then, the person in the Chair, the Vice President unless he has given up the Chair to someone else, issues the final ruling.
Even then, the process is not quite done. Any Senator can appeal the ruling of the Chair. The body then votes by a majority to uphold or reject the ruling of Chair. So let us assume that Vice President Biden is in the Chair and he rejects the opinion of the Parliamentarian, and a simple majority of the Senate goes along with that. Then the bill containing whatever, and bearing the title of “Heath Care Reform” will go to the President for his signature. Is that the end of road?
Not quite.
Under normal circumstances, courts will not interfere with the decisions of a House of Congress, or a house of a state legislature, when it concerns the internal rules of that house. Most state constitutions, like the US Constitution, give explicit authority for houses of the legislature to adopt and apply their own operating rules. But like all other rules of conduct, this one of forbearance of courts from legislative rules has its exception.
Does anyone remember Adam Clayton Powell, Jr,? He was a corrupt, Democrat Member of the House from Harlem in New York City. He was regularly reelected by wide margins, but because of legal complications in New York, he was subject to arrest if he set foot in his District, any day except Sundays. So, he would preach in the Abyssinian Baptist Church, and spend the balance of the week either in Washington, or Bimini.
In short, he was a disgrace, and the House wanted shut of him. So, in 1966, after he was reelected, the House simply refused to seat him. Powell then sued, because the House had not followed its own rules. In Powell v. McCormack in 1969, the Supreme Court ruled that the House had not followed its own rules. It ordered the House to seat Powell, and then expel him by the specified two-thirds vote, if they so choose.
So, there is a role for the Supreme Court when the Houses of Congress flagrantly and critically break their own rules. The Court can, should, and probably will throw out as unconstitutional – for breaking their own rules – whatever “health care reform” bill Congress purports to pass, by cheating.
- 30 -
About the Author: John Armor practiced law in the US Supreme Court for 33 years. His latest book, on Thomas Paine, will be published this year. www.TheseAreTheTimes.us Reach him here: John_Armor@aya.yale.edu
- 30 -
John / Billybob
Article I, Section 7, Clause 2, US Constitution- Michelle Bachmann spoke to this on morning radio here in the Twin Cities today.
Excellent posting!
BTTT
>> Standing will not be a problem in this case. <<
Will take your word for it!
But I guess any judicial action would have to wait until after some “law” is actually “passed” and presented to the TØTUS for signature.
Or do you think there might be any federal judge(s) in DC who’d be willing to assert jurisdiction and issue an emergency injunction as soon as Madame Slaughter’s illegal monstrosity should issue forth from the Rules Committee?
By all means. A bill of attainder should be passed by the next GOP majority to detain her and deprive her of her estate. Hey its just congress passing its own rules /Sarc off
The short answer is, no one. Parliamentary procedure is NOT subject to Judicial review, or least it never has been in the first 235+ years of the country.
The Judiciary isn't going to insert itself into this matter, I'd wager. Because of the Separation of Powers and Art. I, Sec. 5, the Judiciary isn't going to peak it's nose under the Congressional tent. Which means, we are in uncharted water here. The Democrats are turning the Constitution on its head, and there really isn't any way to undo it, other than at the ballot box.
This is where NOT having a fair and honest media is really going to hurt. If it were the Republicans making a mockery of the legislative process like the Democrats are now, the MSM would be going into convulsions. It literally would be the biggest story since Watergate. As it stands, it's clear that most of the traditional media is going to look the other way as SanFran Nan burns the Constitution.
Doesnt this section apply to cases where a veto has been applied by the president and an override vote has been taken. I view this as a case of congress passing an expost facto law which is more clearly forbidden. The law shall not deem to have been passed until it is ammended.
Isnt this bill a revenue bill? Considering that it raises revenues and will passed through a budget reconciliation rule in the senate? So why doesn’t it have to originate in the senate? Even Porkulis had to be passed through or attached to a house bill to get it through the senate.
“Any Member of the House or Senate would have standing to file a case saying that a supposed “law,” which they opposed, was “passed” in violation of both the Constitution and the Rules of their House.
Standing will not be a problem in this case.
John / Billybob “
That is a relief. Thank you for this information.
Citizens and States would have standing in court for refusing to recognize a bill that constitutionally never became law. I am certain the SCOTUS would see it that way.
The (D)s will most probably argue in court that the vote on the rule was in fact a vote on the Senate Bill; then say on the campaign stump they never voted for the Senate Bill, just a rule.
IIRC a concurring vote on a Bill to send it to the POTUS has never been done via a rule vote.
My guess too. A Bill sent to the TØTUS extra-constitutionally would be where the line is crossed.
You are quite right that NORMALLY the courts do not interfere in the procedural rules of any legislature. I say that in my column, and if I had had more space than the usual 750 words, I would have cited a Supreme Court case where it refused to look into the ratification rules of the Ohio legislature concerning the proposed Equal Rights Amendment.
However, there have been exceptions to that rule. The Powell case, which I discuss in detail, is such an exception. So it has been done. So it can be done again.
John / Billybob
Pleased don't misunderstand, I think it's possible that they'll intervene, I'm just not sure it's likely, given the makeup of the Court, Powell notwithstanding. Of course, Roberts has made it clear that he has no patience for Obama, so that's a wild-card.
Also, situational circumstances aside, I'm not all that excited at the prospect of them inserting themselves into this mess. It would be the biggest reach for Judicial power since the days of Marbury, IMHO.
Even if this does get enacted, and the Supremes take a pass on reviewing the legislative process with respect to this law, I believe that there are PLENTY of cases to be made that large chunks of this bill - on its face - are completely unconstitutional. I would look for many of those challenges to prevail.
Hey! While I've gotcha here, what is your take on the Roberts / Zero dustup?
Nam Vet
John / Billybob
Hello.... Good News...States taking a Stand in Washington....
http://www.michigancapitolconfidential.com/12311
This bill would be one of the rare cases where SCOTUS would slap it down in full. Usually the Supreme Court likes to only carve out the unconstitutional parts carefully, especially when the conservatives are involved.
I agree, the appellate courts will pass this up the line quickly.
Am sure dad will be interested in reading your article. He’s been yelling “UNCONSTITUTIONAL!” for the past six months....inbetween “AMATEUR!” every time BO or his cult appear on TV.
mmmm Has Michelle been reading FR and CB?
ping
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.