The Slaughter Solution Will Probably Pass Constitutional Muster
—DrewM.
Gabe laid out the procedures involved in the Slaughter Solution and former Judge Michael McConnell’s argument for it’s unconstitutionality. While I, and I think most sane people, agree with McConnell, sanity is a relative term when it comes to the law.
Shannen Coffin makes the case for why it’s going to be very hard, if not impossible, to get a court to overturn the bill based on a challenge to the Slaughter Solution.
The short version is, courts don’t do legislative sausage making. If the Speaker of the House, the President Pro-tempore of the Senate and the President say it was passed and signed properly, the courts generally take their word for it.
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. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn’t affected by that later decision.
Look at what the Constitution actually says about the passage of bills
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States;
Article I, Section 7 goes on about vetoes and overrides but that’s the heart of the matter. Notice it doesn’t say what ‘passed’ means. We all assume it means a vote where the majority of members vote yes but that’s not actually stated. What it takes to pass a bill is left up the rules of each house and courts aren’t likely to get involved in that.
There are a lot of things we take for granted, as being understood and inviolable rules but the reality is democracy requires a respect for institutions, customs and shared understandings. There’s no force of nature that ensures democratic norms are followed. The checks and balances of our system help but ultimately it comes down to the willingness of individuals to be bound by them. Get enough people in power agreeing to push past those boundaries and bad things can happen.
The Democrats know this Slaughter Solution won’t shield members from the wrath of the electorate, it’s likely to increase the anger. This isn’t some legislative trick played in the middle of the night on a bill no one has ever heard of. Voters are going to want to know how their representatives voted on ‘health care reform’, not the ‘rule under which the Senate sidecar reconciliation bill’ passed. This is not a vote anyone can hide from, it’s a bottom line deal...did you vote to screw things up or not? That’s what will matter.
By this maneuver the Democrats are showing that they hold the customs of consensual democracy in contempt. While the institutions of government may not be enough to constrain these bastards, there is still one final court of appeal and that’s the voters.
Hardcore liberals in the Democratic leadership just don’t care about the consequences or what people want or don’t want. This is their Holy Grail and they know once they shove it down our throats it’s not going to be undone.
There’s something fundamentally very ugly and dangerous when elected representatives don’t respect the voters or at the least fear them.
Related: House Republicans are going to try and force Democrats to hold an up or down vote on the Senate bill or at least go on record as saying they won’t.
Nancy gets a Yes vote to stay Yes.
Added... A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we’ve got her on hypocrisy. Bad news, she lost the court challenge.
Posted by DrewM. at 11:56 AM New Comments Thingy
Not so. From the article: "As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the ‘exact text’ must be approved by one house; the other house must approve ‘precisely the same text.’”
Article I, Section 7 goes on about vetoes and overrides but that’s the heart of the matter. Notice it doesn’t say what ‘passed’ means. We all assume it means a vote where the majority of members vote yes but that’s not actually stated. What it takes to pass a bill is left up the rules of each house and courts aren’t likely to get involved in that.
What are you talking about - the exact opposite is true! From the article, again: "Article 1, Section 7 of the Constitution, however, expressly states that for any bill to become law "the Votes of both Houses shall be determined by the yeas and Nays, and the Names of the Persons voting for and against the bill shall be entered on the Journal of each House respectively." After that, under the Constitution, the president must either sign the bill or hold it for ten days (not counting Sundays), after which it will become law unless Congress adjourns in the interim.
And as for the asinine decalaration that "it doesn’t say what ‘passed’ means" - I guess the Founders figured that if they mandate that "the yeas and Nays" be counted, that meant the yeas would PASS the bill.
That such a stupid objection can be written without mortifying shame is what's really wrong with this country.
Added... A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we’ve got her on hypocrisy. Bad news, she lost the court challenge.
"Something similiar?" In other words, NOT THIS.
Get lost, troll - and don't come back until you can at least form a cogent, rational and logical slimy undermining Rat argument.
It is the responsbility of the House to VOTE on Bills.
These actions by the Dems will have consequences.
I’ve been rewatching Ken Burns’ Civil War Series. What is past is prologue.
Civil War Two is on the horizon. As its remote causes,I see Waco and Ruby Ridge.
As its proximate cause, I see the passage of this Healthcare Horror by trickery and deception.