An Unconstitutional Solution

Power Line

Michael McConnell, a law professor at Stanford and a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the “Slaughter solution” for enacting Obamacare is unconstitutional. The argument, which appears in the Wall Street Journal, is straightforward:

The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.

Senate rules protect against majoritarian overreach by allowing a determined minority to filibuster most types of legislation. The majority needs 60 votes to override a filibuster. One exception, adopted in 1974, is legislation that makes adjustments to spending or revenues to reconcile current law to a budget resolution that has passed Congress. These are called reconciliation bills, and they require only a majority vote.

Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.

That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill’s offensive features.

The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law–hence eligible for amendment via reconciliation–the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. 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.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, 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.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

McConnell’s argument seems unassailable. The problem is getting a court to entertain the argument, if we get to that point. As Andy McCarthy reminds us, when Democrats, including Louise Slaughter herself, challenged the use of a similar device to raise the debt ceiling, the D.C. Circuit decided that it could not reach the question due to the standards of deference that apply between departments of government. The same might happen here.

Nonetheless, a legal challenge, including a petition to the Supreme Court if necessary, represents another obstacle to Obamacare in the event that the House employs the Slaughter solution.

SCOTT adds: Tony Blankley writes to observe that the debt ceiling precedent cited on the justiciability issue addressed by Andy McCarthy is inapposite (Blankley also notes that the district court never reached this issue in that case). Blankley cites this comment on the debt ceiling/Gephardt rule from tomorrow’s syndicated version of his weekly column:

Some have argued that the “Gephardt Rule” (House Rule XXVII) -in which a similar “self-executing rule” “deemed” the house to have voted on a new debt ceiling, is valid precedent. Wrong. That rule was for a joint resolution–not a bill. A joint resolution is a guide to the house. It is not a bill under the constitution, and has no force of law. Because a president has nothing to do with a resolution, a self-executing rule is valid for a resolution, but not for a bill.”

Shannen Coffin comments further on the justiciability issue, suggesting the extreme unlikelihood of help from the courts. Blankley concurs with Professor McConnell’s assessment of the constitutional issue raised by the Slaughter solution in his Washington Times column today.


Specter Opens Door on White House Felonies

American Spectator


“There’s a crime called misprision of a felony. Misprision of a felony is when you don’t report a crime. So you’re getting into pretty deep areas here in these considerations.” — U.S. Senator Arlen Specter on March 12, 2010

“Right now, they’re doing the ‘I won’t confirm or deny,’ and for us, it leaves two possibilities. One is the promise of transparency in this administration is just shot. The second one is even worse, which is either Sestak is lying or the administration has done something wrong and is covering it up…” — U.S. Congressman Darrell Issa on Friday on March 12, 2010

“The ‘stonewall strategy’ functioned from the very first episodes of the cover-up. It was instinctive, from the very top of the Administration to the bottom. It was also ad hoc, developed in small reactions to the flurry of each day’s events…we found ourselves trying to hold a line where we could.” — Nixon White House Counsel John Dean in his Watergate book Blind Ambition

Here we go again.

Even as the drama of health care carries the headlines, beneath the surface, visible now, the iceberg of scandal ripples.

First, the timeline on the blossoming scandal upon which we will now officially fix the dreaded “gate” descriptive. Jobsgate.

September 27, 2009 — The Denver Post reports that Obama White House Deputy Chief of Staff Jim Messina allegedly offered a job in the Obama administration to ex-Colorado House Speaker Andrew Romanoff if Romanoff dropped his planned primary challenge to incumbent U.S. Senator Michael Bennet. Romanoff refuses comment and runs anyway.

February 18, 2010 — Philadelphia TV anchor Larry Kane reports that on his just taped Comcast show, he had asked Democratic Congressman Joe Sestak, who is challenging incumbent Senator Arlen Specter whether it was true that the Obama administration had offered Sestak a job if he would withdraw from his primary challenge to Specter. Sestak answers “yes,” specifically saying the offer came from someone in the White House and that he, Sestak, turned down the offer. Sestak refuses to name who it was that made the offer. Two hours later, Kane calls the White House, plays them the tape, and asks for comment. The White House never calls him back.

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Our Resident in Thief

Socialism is Not The Answer

Okay, so Barry won the election, big deal. Al Gore won a Nobel Prize and he is still in trouble over all of his lies. So lets say that Barry gets the obamacare Bill passed and the government starts taking out taxes on everyone. Even if you don’t want them too. Well after all it is being forced upon us and will be enforced by the IRS. But lets say that somewhere down the road, the rest of the People find out that Barry is Unconstitutional, a USUPER, a fraud, not a natural born citizen. Every Bill that he signed into law will be null & void. Okay Cool. BUT, what about all the money he has spent? All the taxes he put on the American people that were Unconstitutional? If The People do not want a Government Run Health Care, what gives the Government the Right to force it on the People? What has happened to our Constitution and our Government Officials who have sworn to protect and defend the Constitution? Are there any TRUE Americans in Washington anymore or have they all been bought off ?       1 Dragon

The New American Revolution

Canada Free Press

This is a government unlike anything those of us who have been around a long time and have long memories has ever seen.

You may recall that when the Bush administration tried to foist yet another amnesty for illegal aliens, Americans came out in full force to ultimately defeat the bill. When Bush tried to pass legislation to reform Social Security he threw in the towel when it became evident that no one wanted it.

Not so today. Despite the polls that demonstrate that the vast majority of Americans are opposed to Obamacare and despite the protests taking place in Washington, D.C., as well as an avalanche of calls, emails, and faxes to members of Congress (Republicans are exempt as they stand united against it), the Obama administration and his fascist supporters in Congress are determined to pass or send something to the President for his signature.

History is replete with presidents who stumped for legislation that Americans opposed. Have we forgotten Clinton’s effort to pass healthcare “reform”? Woodrow Wilson’s failed campaign to get the U.S. to join the League of Nations comes to mind. I could cite other examples, but the point is that, when the People speak, presidents in the past have listened.

Not Obama. Not the Democrats led by House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid

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Beyond Scandalous – Lawyers Gave Gitmo Detainees Pictures of Their CIA Interrogators

Family Security Matters
CIA operatives are supposed to be anonymous. Remember the outrage in the media when Valerie Plame was deliberately “outed” by members of the Bush administration in order to get back at her husband? Turns out that wasn’t quite true; her covert status has been questioned and the person who actually disclosed her name to columnist Robert Novak, Richard Armitage, was merely passing along a gossipy tidbit, not trying to ruin her career on behalf of the Bush administration. (The information came too late to save Lewis “Scooter” Libby from being convicted of perjury.)
However, a real scandal has erupted as an investigation reveals that lawyers who once represented Gitmo detainees took part in a campaign that involved photographing CIA interrogators and showing those photos to their Gitmo clients:
The investigation has been under way for many months, but was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo showing CIA officers and contractors who have carried out interrogations of detainees, according to three officials familiar with the investigation. They spoke on the condition of anonymity.
Findings of the investigation to date produced some signs that the senior al Qaeda detainees at Guantanamo gained intelligence on CIA interrogators through their lawyers that could be used in future legal proceedings.
CIA counterintelligence officials have “serious concerns” that the information will leak out and lead to the terrorists targeting the officers and their families, if the identities are disseminated to terrorists or sympathizers still at large, said one official.
“They have put the lives of CIA officers and their families in danger,” said a senior U.S. official about the detainees’ lawyers.

Not again! Meet Obama’s new controversial pastor

© 2010 WorldNetDaily

Jim Wallis

Rev. Jim Wallis, a member of President Obama’s “faith council” who is described as a spiritual adviser to the president, is a socialist activist who has championed communist causes and previously labeled the U.S. “the great captor and destroyer of human life.”

Wallis was in the news last week urging Christians to stop watching Fox News host Glenn Beck’s program for Beck’s remarks against churches that preach “social justice.”

The Associated Baptist Press described Wallis as a “politically progressive evangelical and longtime advocate for the poor.” The Huffington Post identified Wallis as a “Christian author and social justice advocate.”

Wallis, however, is a long time socialist advocate and founder of a far-left magazine, Sojourners, that has championed communist causes.

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Sleazy backroom deals on Obamacare

March 16, 2010

David Axelrod, President Obama’s top political adviser, waffled over the weekend concerning the chief executive’s stance on special deals in the Senate health care bill. (William B. Plowman/AP Photo/NBC)

That old saw about “the more things change, the more they stay the same” keeps coming back as the revelations mount on what’s going on behind closed doors as White House and congressional officials harvest votes for Obamacare. For example, remember President Obama’s 2008 campaign promise that the lobbyists and special interests would be banned from the health care reform process? Now comes word via Politico that drug industry lobbyists spent a good part of the weekend with Democratic congressional staffers writing the bill: “The weekend included high drama for the drug industry as lobbyists huddled with Democratic staffers to work out a fee structure and donut-hole fix. … Drug makers were asked to sign off on multiple solutions so that backup options were available should any of the fixes run into problems passing muster with the Senate parliamentarian.”

Things must have gone swimmingly between the drug lobbyists and their Democratic congressional staff buddies because Politico added that “there was ‘real heartburn with the bill over the weekend and over the last week,’ an industry source said. But insiders expressed confidence that their issues were on the road to resolution.” Yessiree, spending Saturday and Sunday rewriting legislation cures that heartburn every time.

Then there are those infamous special deals in the Senate bill — the Cornhusker Kickback, Louisiana Purchase, Gator Aid, and so forth. Last week, Obama said he wanted them removed. But over the weekend, White House senior aide David Axelrod waffled when asked about the deals, saying Obama now only objects to deals that only apply to one state: “The principle that we want to apply is that, are these [deals] applicable to all states? Even if they do not qualify now, would they qualify under certain sets of circumstances?” According to AP, “that is the argument made earlier by aides to Democratic Sens. Max Baucus of Montana and Chris Dodd of Connecticut. The measure to give Medicare coverage to asbestos-sickened residents of Libby, Mont., for example, could apply to other places where public health emergencies are declared — even though Libby is the only place where that has happened so far.”

Finally, White House political operatives are reportedly offering presidential fundraising appearances to wavering representatives as incentives to get them to commit to vote for an unspecified new version of Obamacare that will have “passed the House even though no recorded vote on it was actually taken. Lobbyists writing bills behind closed doors, special-interest deals to buy votes, campaign cash for support — wasn’t that what Obama and the Democrats in Congress ran against?

Read more at the Washington Examiner:

Barack Obama threatens to withdraw support from wavering Democrats

Barack Obama is battling to save US health care reform

Barack Obama is battling to save US health care reform Photo: EPA

The president will refuse to make fund-raising visits during November elections to any district whose representative has not backed the bill.

A one-night presidential appearance can bring in hundreds of thousands of dollars in funds which would otherwise take months to accumulate through cold-calling by campaign volunteers.

Mr Obama’s threat came as the year-long debate over his signature domestic policy entered its final week.

Mr Obama is personally telephoning congressmen who are still on the fence this week, in between several personal appearances devoted toward swinging public opinion.

Yesterday he visited Strongsville, Ohio, home of cancer patient Natoma Canfield, who wrote to the president she gave up her health insurance after it rose to $8,500 (£5,600) a year. Mr Obama repeatedly has cited the letter he received from the self-employed cleaning worker to illustrate the urgency of reform.

Though Congress has already ignored several deadlines set by the president, March 21 is being treated by all sides the final target date, at which time all options would have been exhausted. The president has postponed an overseas trip by three days to see reform through.

Apart from arm-twisting by the White House, an advertising blitz that could cost £20 million by the end of the week, about the same level of a presidential campaign, has been aimed at about 40 undecided Democrats in the House of Representatives.

Most are conservatives who are worried that their support would cost them their seat in November, as the bill has become unpopular with a majority of Americans.

Others are anti-abortion advocates concerned that the proposals would not do enough to prevent government funding of abortions.

The US Chamber of Commerce has led a coalition of organisations opposed to reform, while pharmaceutical companies and Left-wing groups have joined forces to support reform and are urging constituents to contact their representatives and let them know their feelings.

David Axelrod, a senior adviser to the president, said that “the lobbyists for the insurance industry have landed on Capitol Hill like locusts, and they are going to be doing everything they can in the next week to try and muscle people into voting”.

The bill would extend health coverage to about 30 million uninsured Americans and would bar insurance companies from refusing coverage to people with pre-existing health problems.

The plan to get it through Congress is so complicated that even experts on legislative process disagree about how it could proceed exactly.

The most likely path to reform is that the House Democrats would pass a Senate version of reform passed on Christmas Eve.

Mr Obama would sign the bill into law before leaving for Asia on March 21, and then both chambers would pass “fixes” to the legislation demanded by the House Democrats.

The rest would, as things stand, be something of a formality. By a process known as “reconciliation,” Democrats would frustrate Republican filibuster obstruction tactics in the Senate and allow the health care overhaul to be finalised before Congress takes a two-week break on March 26.

The Democrats have been forced to unorthodox tactics after losing their filibuster-proof majority of 60 in the Senate in a Massachusetts by-election


Intel Briefs: China could program U.S. collapse

World Net Daily

Semiconductors used in U.S. weapons systems that come from China and other countries could be pre-programmed for failure, according to a report from Joseph Farah’s G2 Bulletin.

In an exclusive interview with G2 Bulletin, a high-level Pentagon technical expert who asked to remain anonymous warned that such tampering is virtually undetectable. His revelation underscores a growing concern in the U.S. military that with the dwindling manufacture of domestic chips and electronics combined with the burgeoning growth of supplies – especially from China – there is virtually no way to trace the source of any electronic tampering.

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