Friday March 19, 2010
Constitutional Challenges Loom Big Over Slaughter’s ‘Demon Pass’
By Peter J. Smith
WASHINGTON, D.C., March 19, 2010 (LifeSiteNews.com) – The legislative “deem and pass” tactic – dubbed by many pundits as the “demon pass” – sought by House Democrats to ram through the Senate version of ObamaCare has legal analysts predicting that the health bill will likely land before the U.S. Supreme Court on a constitutional challenge.
“The Slaughter solution is unconstitutional because it evades the constitutional requirement that there be a vote by both houses of Congress on the same bill in order for that bill to become law once it is signed by the President,” said legal experts for Americans United for Life in a communiqué to LifeSiteNews.com.
Under the U.S. Constitution both houses of Congress – the Senate and the House of Representatives – are required to consider bills and then have a roll call vote in order to make them law. Article 1, Section 7 states: “in all such Cases the Votes of both Houses shall be determined by 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.”
However, under the “self-executing rule” devised by House Rules Chairwoman Louise Slaughter (D-N.Y.), no members of the House will actually have a roll-call vote on the version of health-care reform passed by the Senate. Instead, House members will vote on a “reconciliation bill” that will simply “deem” the Senate bill passed. This will allow House members to say that they did not actually vote for the Senate bill, just the reconciliation “fix” package.
“That bill cannot be merely ‘deemed’ to have passed – it must be voted upon and signed into law before any ‘fixes’ via reconciliation or otherwise can take place,” said AUL’s legal team. “The Slaughter solution seeks to bypass that requirement and the Constitution forbids it in Article I-Section 7.”
What is more, if Democrats succeed in enacting health-care reform by “deeming” a bill passed, the precedent could see other unpopular or politically difficult pieces of legislation being enacted in the same way. Robert Gibbs refused to tell a CNSNews.com reporter whether Obama was or was not considering using the “deem and pass” tactic on other items, such as immigration reform.
Amy Ridenour of the National Center for Public Policy Research says that Obama’s signature legislation “would stand a very good chance of being tossed out by the U.S. Supreme Court” if the Court follows its earlier precedent.
Ridenour wrote on her blog that the high court’s 6-3 decision that ruled the Line Item Veto Act unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998) “laid a likely roadmap for how the Court might rule on a challenge to the constitutionality of the Slaughter Solution.”
Writing for the majority, Justice John Paul Stevens – who still sits on the U.S. Supreme Court – wrote that the Constitution’s procedure for enacting laws under Art. I, Sec. 7, “explicitly requires” that the House, Senate, and the President must approve “precisely the same text” before a bill can be considered validly enacted.
Stevens wrote that even though a law modified by the President “may or may not be desirable,” Congress could only enact valid legislation “pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.”
Mark Tapscott, a columnist for the Washington Examiner commented, “That reasoning would seem applicable to legislation approved under the Slaughter Solution, since the House would be voting on a proposed rule for considering a bill and not the bill itself.”
The whole “deem and pass” tactic also threatens to draw the states into a protracted battle with the federal government over the Constitution.
Virginia Attorney General Ken Cuccinelli warned House Speaker Nancy Pelosi in a letter on Wednesday against bypassing a direct vote on the Senate bill “because it might somehow shield members of Congress from taking a recorded vote on an overwhelmingly unpopular Senate bill,” indicating she would invite a constitutional challenge from his state.
“This is an improper purpose under the bicameralism requirements of Article I, Section 7 of the U.S. Constitution, one of the purposes of which is to make our representatives fully accountable for their votes,” Cuccinelli wrote in the letter to Pelosi, as reported by the Associated Press.
Mark Levin of the Landmark Legal Foundation says he already has prepared to file suit against the president if he signs the health care bill into law without a recorded yea-or-nay vote in the House.
The process has even disgusted some House Democrats, who have said that they will refuse to vote for Obama’s health care legislation if Pelosi follows through with the tactic.
Rep. Steven Lynch of Massachusetts, one of Pelosi’s floor whips and a supporter of the Obama reform effort, called the whole process “disingenuous,” and said it would “call into question the credibility of the House.” Lynch, a South Boston Democrat, told the Boston Herald that he could not find himself supporting the Senate bill if the “deem and pass” rule was employed.
Despite the insistence of President Obama and leading Democrats that the American people just “want it done” whatever the process, it appears the American people have soured on the president, Congress, and their arcane parliamentary maneuvers to pass unpopular legislation.
Gallup’s latest three-day poll average reveals that Obama’s job approval is the worst of his presidency to date, with 46 percent of Americans approving and 48 percent disapproving. The Democrat-controlled Congress fares far worse: 80 percent disapprove, while just 16 percent approve – just two points away from Congress’s record Gallup low of 14 percent back in July 2008.