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.
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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
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No, I think it takes 60 votes to overrule the parliamentarian.
The Chair (presumably Joe Biden on this occasion) issues his ruling, which can reject or accept the opinion of the Parliamentarian. Assume that Biden is in the tank for Obama, so he rules falsely that all this extraneous stuff belongs in the reconciliation process.
If anyone objects, the whole Senate then votes to uphold or reverse the Chair by a majority, only. And if there is a tie, Biden can vote to break the tie.
The point of the Byrd Rule is to prevent extraneous matters in budgetary process. But if the people in charge are willing to lie about it, the protection disappears.
John / Billybob
It actually would be a minor intervention to slap down the Senate bill if it is passed this way. After all, the remedy is simple — the House simply has to take a majority vote on the Senate bill.
When the constitutional issue is clear, and the remedy is simple, the court will intervene. They won’t be preventing the law from being passed, only requiring that the House take a vote on the bill.
I think the court would be more likely to intervene based on the fact that, if the Senate bill is enacted by a vote that includes either a “rule language”, or the “reconciliation bill”, that the passage was not of identical language to what the Senate voted on.
The Court has weighed in before and said that votes must be held on identical language. Since it is clear that the House is doing this so they can have additional language, and thus vote on a modified bill, the Court would likely step in and say the two bills were not in fact identical.
They applied this in the line-item veto case. This would be like the House voting on 20 different bills at once, and then the senate deciding which ones to pass and which to reject.
I think it gets even more obviously unconstitutional if the senate rejects the reconciliation language passed by the house, since then it would mean that the only vote held in the house was REJECTED by the senate.
And since the remedy is so easy, and fully available to the House (vote on the Senate bill) and it is so clear that the purpose of the Democrats is to subvert the process to circumvent the constitutional requirement to pass the same bill, I see this as an EASY ruling for the court. They won’t be blocking health care reform, they will simply be requiring the Democrats to vote on it.
Others have suggested that bills are passed by voice vote all the time, but now I’m wondering if those are things that are not “laws” but are some other legislative intent.
Those people though say the enumeration of votes is only for a veto override. But then why the term “In All Cases”?
I still think the better argument is that they won’t have passed the SAME LANGUAGE, since however the house passes the bill, it will have been by a vote that included additional language enacted by the vote, either the rule, or the reconciliation bill.
When it goes to Obama’s desk, wouldn’t a party with standing be able to ask for a stay pending review? It seems easy enough to argue that signing the bill could cause irreparable harm.
Isn't there some question about whether Biden has the authority to vote on his own ruling?
It's my understanding the he can't vote on his own ruling.
There's additional discussion going on over here, that you might be interested in
. Apparently, there is some precedential case for these "deeming" rules. Waxman sued several years ago when the Republicans raised the debt ceiling using a deeming rule. Waxman lost.
Any Senator can appeal the ruling of the Chair. The body then votes by a majority to uphold or reject the ruling of Chair.
I have served as Parliamentarian of a national political convention. This is how the Byrd Rule or any other operating rule, is carried out. You are correct that Biden should not reverse such an opinion. And a majority of the Senators would be dead wrong to uphold such a breach of duty.
My article begins after both of those failures have occurred. It answers the question whether there is any court remedy, when all else fails — House, Senate and President.
John / Billybob
Bump.
mo bump.
Is it possible that the President’s outrageous assault on the Court during the SOTU speech was in anticipation of such an action?
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