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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John / Billybob
In my opinion, we’re witnessing tyranny and treason perpetrated against the United States of America by our government. This thug Administration and this Congress have declared war upon We The People.
Maybe the House should give the Supreme Court a call, after all they are the ones who stood and cheered when Obama stuck his foot in his mouth during the State of the Union Address.
But, before the Supremes get involved, doesn’t someone have to file a lawsuit, which can only happen after it’s passed? And, won’t it have to work its way through the lower courts before the Supremes could issue a definitive ruling?
Obama didn’t help his cause when he castigated and villified the SCOTUS. This might turn out to be a howl!!
Bump for followup
Great piece as always, John. Another question...early in the discussion of Obamacare, way before the possibility of reconciliation came up..there was some talk that the mandate forcing individuals to purchase healthcare insurance was unconstitutional, and should be challenged in the courts...have you heard any more about this, and any thoughts?
Levin was pretty emphatic about the distinct and substantive possibility that action could be brought against Louise Slaughter for her efforts to subvert Constitutional rules. Not congressional rules, Constitutional rules. I believe he referred to Article 1, section 7, but I could be mis-remembering that.
What’s funny about this is that if this scenario played out you can guarantee whines and cries about the activist court and unconstitutionality of it. These would be the same Democrats that are currently trampling all over the constitution to get it passed.
I wouldn’t count on this option. Even if it would happen, it may take years. We’re just getting around to having the court repeal most of the unconstitutional McCain/Feingold.
It would be nice if this ended up in the court, seeing as how Barry just ground his boot heel in their faces during the state of the union. He does have a gift.
Interesting indeed, and thanks as always for sharing your wisdom and experience, John. I’ve under the presumption that the Democrat majority will prevail and pass “whatever”, and have been wondering about what comes next, i.e. what other remedies may exist. I will be very interested to get your take on whatever “rules” are followed, bent, or broken in the process of getting this jammed through Congress, as that would seem to be the key to SCOTUS involvement.
I’m also curious if you feel the blocking measures being considered by a number of states will have any merit in slowing down the HCR bill or in forcing a court test. Or are these efforts a waste of time based on federal presemption?
If they insist on bannana republic governance they should not be surprised if the people are driven to seek banana republic relief.
John / Billybob
it’s called “the ends justify the means”
Who would have standing to contest the healthcare legislation on the basis of rules violation? Only a Member of the House or Senate? Would such a case be filed in the Federal District Court in D.C.? If so, I assume it would be appealed to the SCOTUS. I wonder how long it would take.
Excellent article, CB. Thanks.
Music to my ears.
If this thing gets to the POTUS, it will signify a constitutional crisis of emormous proportions. It will be an example of glaring arrogance and abuse of power. It will signify the beginning of the end for governance by consensus of the governed.
We will be watching an historic event that more than portends dissaster and will be viewed in retrospect as the worst thing that has ever happened to our country.
I pray to God this thing does not come to pass.
The SOBs cant, with a huge majority, wrangle enough votes to pass the piece of trash so they try to just skip that part. I’m normally pretty laid back but this has pissed me off bad enough that I’m about ready to join a revolution!
Whats next?? Skip elections?? Make uhhbama prez for life???
THIS aint what America is about.
John / Billybob
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