DemonPass Would Probably Be Found Unconstitutional

I disagree with DrewM, who wrote below that despite how bad DemonPass stinks, the Court would probably allow it, as they've rejected objections to this procedure in the past.

First of all, it has to be noted that the Court declined to rule, not that they actually blessed the procedure. They refused to rule because of the Political Questions Doctrine, which keeps the Court (sometimes) from interfering in the constitutional duties of its coequal branches.

This is a prudential consideration -- i.e., sure, this thing stinks on ice, but wouldn't it be worse for the Constitution if the Court stepped in and began micromanaging procedure in a coequal branch of government?

Such prudential concerns are important, but they do have their limits.

For example: Suppose that the the House passes a bill. But Nancy Pelosi doesn't like it, and substitutes her own version with some editing for the bill actually passed. She then presents this to the President for signature (after the Senate passes it).

Now, this is blatantly unconstitutional -- she just slipped a law to the President without a vote on it at all; it's merely what she alone wants -- but she's entrusted to do this presentation business and she claims it was passed.

Now if the House doesn't have some way to thwart her here -- if they cannot rouse some sort of vote to stop this -- is it really true that even in this case the Court would say "It is not for us to decide how the House manages its affairs?"

I doubt it. There is a limit to how much restraint prudence dictates you show in the face of constitutional lawlessness.

Now, in the present case, the situation is not quite as extreme. However, in the past, the self-executing "demonpass" dodge was used with regard to legislation that was going to pass anyway; Congress concocted itself a trivial dodge so they could say they hadn't voted to raise the debt ceiling. But if that dodge had not been available, they would have voted for it.

In such circumstances, the Court can show a bit of restraint and say, basically, "No harm, no foul," and show the restraint they prefer to show in keeping out of Congress' internal affairs.

But what about when the measure would not have passed otherwise? What happens when Congress is attempting to "pass" a bill which does not in fact have enough votes to pass at all? Does the Court continue showing this forbearance and ultimately bless as constitutional a blatantly unconstitutional (and undemocratic) trick?

In one case showing a bit of prudential restraint is cost-free as Congress was going to pass the law anyway; the Court was merely quibbling over the procedure used to pass it. There was little doubt that the substance of the law would be passed one way or another. In that case, the Court could rightly decide that their interest in the ticky-tack specifics of procedure was easily outweighed by the need to defer to a coequal branch.

In the present case, though? I don't think that weighing favors allowing this to stand.

Andy McCarthy makes a ballpark-similar sort of argument at NRO.

Commenters at Hot Air also note that in the case considered by the Court, the House and Senate bills were actually identical. That has big implications for this case, because the Democrats are basically attempting to "pass" a law by not passing it at all, and furthermore, trying to "pass" it as identical to the Senate bill (so that reconciliation may be used) but also passing a very not-identical list of changes to the very bill they are claiming is being passed identical to the Senate's.

For the Court, that might be one unconstitutional dodge too many.


Posted by: Ace at 04:30 PM



Comments

1 Totally agree. FTE

Posted by: MDr VB1.0 CS1st at March 16, 2010 04:32 PM (ucq49)

2 There is a limit to how much restraint prudence dictates you show in the face of constitutional lawlessness.

Ace is right. This reminds me of Bush v Gore. The Supreme Court prefers to stay out of election battles too, but Gore's attempt to ruthlessly fuck that chicken was just too much for them to ignore.

Posted by: real joe at March 16, 2010 04:33 PM (FKbt9)

3 Clockin' in with a Counter-Double-Post and Puttin' the Knowledge to the kidlins...good to see you back to work, Son.

Posted by: garrett at March 16, 2010 04:33 PM (XmEkh)

4 Problem: Kennedy would likely be the swing vote and as he loves all things "European", we are screwed.

Posted by: Circa (Insert Year Here) at March 16, 2010 04:33 PM (B+qrE)

5 Legal or not, the American people will not appreciate this gimmicky act of cowardice. If the Dems do it this way, they will pay even more dearly at the ballot box IMO.

Posted by: AJ Lynch at March 16, 2010 04:35 PM (J1SKS)

6 I agree with Ace. DemonPass would simply be too much for the Court.

Posted by: ParisParamus at March 16, 2010 04:35 PM (GgR+e)

7 FWIW - The Court is none too happy with this administration...save for the Chamber Maid.
She's 'jus hoppey to be der'!

Posted by: garrett at March 16, 2010 04:35 PM (XmEkh)

8 "So, One Tuck... One No-Tuck?"

Posted by: Justice Sotomayor at March 16, 2010 04:36 PM (XmEkh)

9 Again, what about the part of the Constitution that says the yea and nay votes for a billmust be logged into a journal? If this shit sandwich is 'deemed' passed, then howis that part of the Constitution satisfied?

Posted by: joejm65 at March 16, 2010 04:36 PM (vSncj)

10 I keep remembering the Dems standing O for Zero, while surrounding SCOTUS.
It was chilling.

Posted by: Rat Patrol at March 16, 2010 04:38 PM (dQdrY)

11 I think it would hinge on which side of the bed Kennedy got up on. Those 4 liberal justices will vote for ANYTHING that advances the Dem agenda.
also:
For example: Suppose that the the House passes a bill. But Nancy Pelosi doesn't like it, and substitutes her own version with some editing for the bill actually passed. She then presents this to the President for signature (after the Senate passes it).
Didn't they actually do this once with earmarks? They edited a bill after it had been voted on to add a bunch of earmarks and then sent it to be signed.

Posted by: Vic at March 16, 2010 04:38 PM (QrA9E)

12 I keep remembering the Dems standing O for Zero, while surrounding SCOTUS.

After he bashed their ruling? If Kennedy doesn't remember that, Roberts should play him the video. It's probably on the WH website.

Posted by: HeatherRadish at March 16, 2010 04:39 PM (mR7mk)

13 Link to Levin explaining why the Slaughter Solution Martial Law is unconstitutional: http://bit.ly/aFgRBi

Posted by: Countrysquire at March 16, 2010 04:39 PM (rDvlp)

14 The only thing worse than if they go the demonpass route is if the Supreme Court refuses to review it or finds it constitutional. What little trust Americans have in the institutions of government will be lost. Many will view the government, and the laws it passes, as completely illegitimate.

Posted by: angler at March 16, 2010 04:40 PM (SwjAj)

15 But wait, Shep Smith assured me it's Constitutional, and the tone he used makes me feel ridiculous for even thinking otherwise!

Forget SCOTUS, let Shep decide!

Posted by: grognard at March 16, 2010 04:40 PM (v0kvW)

16 Legal or not, the American people will not appreciate this gimmicky act
of cowardice.
Do they even know about it? I'm not a watcher of the alphabet news so I don't know what the regular guys know or don't know about.

Posted by: toby928 at March 16, 2010 04:40 PM (PD1tk)

17 Just try and get standing in a Federal Court to oppose this.

Posted by: citizen khan at March 16, 2010 04:41 PM (pFxVD)

18 >>>Didn't they actually do this once with earmarks? They edited a bill after it had been voted on to add a bunch of earmarks and then sent it to be signed.

Right, but I think that was caught and was un-presented for signature.

Now, what if the House just left in on the President's desk?

Wouldn't the Court get over its forbearance and say, "Um, no" ?

Posted by: ace at March 16, 2010 04:42 PM (i6ROy)

19 17 Just try and get standing in a Federal Court to oppose this.
The legal guys say that it will be easy to gave standing to bring this to court.

Posted by: Countrysquire at March 16, 2010 04:43 PM (rDvlp)

20 "You want Fresh Towel?"

Posted by: Justice Sotomayor at March 16, 2010 04:43 PM (XmEkh)

21 Isn't attempting to subvert the Constitution tantamount to treason?

There are penalties prescribed by law for treason.

Nanzi Pelosi and her obergruppenfuhrers in congress -- as well as Osama Obama -- would look damn good in shackles and those orange jump suits.

Posted by: Ray-man at March 16, 2010 04:43 PM (HCBIr)

22 Just a little opening of the mind to let the moths fly free; When Obama pulled out Mini Barry and pissed all over the court in the SOTU, Iwonder whether he was setting the stage for just this occaision. Preemptively showing the bias of the supremes against him?
Yeah, I know its a stretch but...

Posted by: Hussein the Plumber at March 16, 2010 04:44 PM (RkRxq)

23 The last time, the bill was also time sensitive, the debt ceiling, and by the time the Court reviewed it a fait accompli. What were they going to do, invalidate billions of treasury bonds? Whereas this bill isn't a crisis and isn't going into effect for four years.

Posted by: Jean at March 16, 2010 04:45 PM (tTdaQ)

24 I want ObamaCare to die in Congress, but if it doesn't, oh how I want the SCOTUS to hear it if they use DeemPass to enact it.

I'm sure Roberts wouldn't miss the chance to stick it to Obama as payback for the SOTU F-U. I'd like to think the conservative bloc would also agree that this DeemPass is crap, especially since they wouldn't be using it on the same bill.


Posted by: Blogluddite at March 16, 2010 04:46 PM (fDWFP)

25 I hope so but I doubt it.

How a bill becomes a law is not something the courts has jurisdiction over and I don't think there's really a constitutional exception for 'well it would have passed so no worries'. I get what you mean but that's not exactly a real live constitutional standard.

Aside from the separation of powers and political question hurdles, there's always going to be the matter of standing.

I can imagine a couple of classes of people who should have standing (Congressmen who were denied the right to vote and any citizen who has to pay a tax without his representatives voting on it come to mind) but it's not like legitimate claims have gone unheard before because of standing dodges by courts.

It's a fucking mess because Pelosi and her gang, if they go through with this and I'm not convinced they will, are in fact acting as tyrants.



Posted by: DrewM. at March 16, 2010 04:46 PM (9B5OK)

26 I thought raising the debt ceiling was done by resolution, not by passing a law.

Posted by: Dr. Spank at March 16, 2010 04:50 PM (I1/U/)

27 Well, you already see how the left is going to try and force Clarence Thomas to "recuse" himself if it comes down to this (with all that blather about Thomas's wife starting a Tea Party group). NPR and all the lefty networks were in an absolute lather over this. They are already setting the table.

Posted by: runningrn at March 16, 2010 04:51 PM (CfmlF)

28 Drew - your opinion on the Virgina 10th Amendment law?

Posted by: Jean at March 16, 2010 04:52 PM (7K04W)

29 ."..Housekeeping?"

Posted by: Justice Sotomayor at March 16, 2010 04:52 PM (XmEkh)

30 >>>I get what you mean but that's not exactly a real live constitutional standard.


Yes it is. The whole reason they avoided ruling in the first place was the vague and oft-violated Political Questions Doctrine, a doctrine they often chuck out "in the appropriate case," whatever that might be.

Posted by: ace at March 16, 2010 04:52 PM (i6ROy)

31 #25

Ultimately, either the bill gets a House vote or it doesn't.

If it doesn't, I don't see how it can be "law".

As I said in the last thread, the SCOTUS may not (I would even go so far as to say 'should not') care HOW the laws get written or voted on, but I think they 'should' and actually WOULD care if the public is effectively disenfranchised by laws being passed by fiat without a vote.

Posted by: looking closely at March 16, 2010 04:52 PM (6Q9g2)

32 I put this in another thread, but itmight be good to bring it here. Maybe someone should ask the geniusconstitutional law professorif this demon trap is constitutional.
You can post a question you would like Bret Baier to ask the prez he says he will choose one or two to ask him. I know some of you smart morons/ettes can come up with a great question. Have at him!
http://tiny.cc/cQsOg

Posted by: Steph at March 16, 2010 04:54 PM (riZEn)

33 #32

If his paid mouthpiece Gibbs won't answer the question, why would Obama?

I'd expect that the question will never get to his teleprompter, but if he were cornered, I'd expect some muttered nonsense about "that being a complicated legal question best left to experts in that field".


Posted by: looking closely at March 16, 2010 04:56 PM (6Q9g2)

34 html FAIL! on the Andy McCarthy link.

Posted by: Andy at March 16, 2010 04:58 PM (82Zkd)

35 Posted by: Jean at March 16, 2010 04:52 PM (7K04W)

Great idea but I wouldn't try and hide behind it when the IRS comes to collect your tax.

Let's be honest the X Amendment is essentially a dead letter these days. What was the last federal power grab turned back on X Amendment grounds? Has there ever been one?

That goes to the real theme of my earlier post...democracy and freedom are not found on paper but in tradition and a willingness of free people to be bound by some rules. The X Amendment is a great idea, it's just something people pay any attention to and so it and what it represents has withered on the vine. We're all poorer for it.

That said, I do think the individual mandate is unconstitutional. Will a court uphold it? Who knows, it's a fucking crap shoot.

Hell of a way to run a country.

Posted by: DrewM. at March 16, 2010 04:58 PM (9B5OK)

36 I'd expect that the question will never get to his teleprompter, but if he were cornered, I'd expect some muttered nonsense about "that being a complicated legal question best left to experts in that field".
Posted by: looking closely at March 16, 2010 04:56 PM (6Q9g2)

BUT...isn't the bastage supposed to be an expert in that field? Just make him look more like a lying sack of shit.

Posted by: Steph at March 16, 2010 04:58 PM (riZEn)

37 exactly, the old use of this had the same language in the rule and the law.
Thiswould require a vote on the rule, then a vote on the recon bill. The bill they would be voting on specificallyIS NOT the Senate bill and the rule IS NOT the Senate bill. The court refused to inject itself because the wording was identical in the rule and the law signed by the President. That would not be the case here.

Posted by: Jeff at March 16, 2010 04:59 PM (FDdKZ)

38 Here's what I don't get. If they incorporate the senate bill in another bill that refers to changes or amends it, aren't they actually changing the senate bill rather than voting on 2 separate pieces of legislation, i.e. it is not the same bill.

Posted by: Guy Fawkes at March 16, 2010 05:00 PM (ympF8)

39 Somebody put me some f*cking knowledge here.
As I understand it, the problem in the House is that the House members do not trust the Senate to pass a reconciliation bill to fix the Senate version of the health care bill once the House has voted to pass that Senate version -- the House members fear that Obama will just sign the Senate version into law and declare victory.
So the House leadership wants to use the Slaughter Rule so that the House concurrently passes both the reconciliation measure and the Senate bill.
But having done so, how does that prevent the President from signing the Senate bill into law, ignoring (along with the Senate) the House reconciliation package? Where is the protection for the House members who have deal-breaking reservations about the existing Senate bill and need an iron-clad guarantee that those provisions will be changed BEFORE the bill is enacted? What motivation does Harry Reid have to make any changes to the Senate bill once it is "deemed to have passed" by the House leadership? For that matter, what motivation does Nancy Pelosi have to insist that the Senate make any changes after the Great Deeming?
Inquiring minds want to know.

Posted by: stuiec at March 16, 2010 05:02 PM (7AOgy)

40 Posted by: ace at March 16, 2010 04:52 PM (i6ROy)

I think that's more of a hope (one I share) that enough justices have a standard of decency that goes beyond raw power.

If SCOTUS does wind up killing it, it would be kind of like Bush v. Gore, right outcome*, bad process.

*not just that I wanted Bush to win but that Florida Supreme Court had gone rogue in rewriting the state's election law on a daily basis.

Posted by: DrewM. at March 16, 2010 05:02 PM (9B5OK)

41

A Dodge too Far

Posted by: bulwark at March 16, 2010 05:03 PM (PO/9k)

42 "I hab mucho mas empathee for dis law."

Posted by: Justice Sotomayor at March 16, 2010 05:06 PM (XmEkh)

43 Drew - there is a lot of willingness out there. A Gov. like McDonald could see that a steadfast position on the X might be his stepping stone for a serious run in 2012.

Posted by: Jean at March 16, 2010 05:06 PM (vb5IK)

44 >>>Here's what I don't get. If they incorporate the senate bill in another bill that refers to changes or amends it, aren't they actually changing the senate bill rather than voting on 2 separate pieces of legislation, i.e. it is not the same bill.

I don't think you're supposed to get it. They're like children, they want the bill both identical and amended simultaneously. They want to "deem" it one or the other as they need it to be.

Posted by: ace at March 16, 2010 05:08 PM (i6ROy)

45

One more time, with feeling:

THE LINE ITEM VETO CASE REQUIRES BOTH HOUSES TO PASS IDENTICAL BILLS FOR TEH PREZ TO SIGN.

Not identical=not "passed" by both houses.

Author of the Line Item Veto case?

STEVENS



Wiki for you tards:

Clinton v. City of New York, 524 U.S. 417 (199, is a legal case in which the Supreme Court of the United States ruled that the line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress. The decision of the Court, in a six-to-three majority, was delivered by Justice John Paul Stevens.
Contents

Posted by: s'moron at March 16, 2010 05:09 PM (UaxA0)

46 If this thing gets passed, I'd prefer it get passed via demonpass. The advantages of passing it by demonpass is that 1) the corruptitude will rile people up 2) open up multiple avenues of attack. This would pave the way for repeal.

On the other hand, if it passes by majority vote, we are deprived of an effective method of attack.

Posted by: louis c at March 16, 2010 05:09 PM (OFxA7)

47


What was the last federal power grab turned back on X Amendment grounds?

Shut up, Drew, I explained. You're an idiot.



In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment.

In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns


Posted by: s'moron at March 16, 2010 05:12 PM (UaxA0)

48 I think this is a violation of the 5th amendment.

Posted by: ford at March 16, 2010 05:15 PM (Ki7fm)

49

trenchant analysis, ford. Very compelling.

You should be a constitutional lecturer at the university of Chicago.

Posted by: s'moron at March 16, 2010 05:16 PM (UaxA0)

50 #39

I'm with you.

Perhaps I don't understand whats happening here, but I don't really see how this "fix" fixes anything.

Any House member voting for the reconciliation package would be, in full practical effect, voting for the Senate bill AS IS, absolutely ensuring its passage into law.

There is still no guarantee whatever that the Senate will take up the House "fix" in its reconciliation measure, and in fact, fairly good reason to believe that it won't.

If the Senate bill passes as is, and the reconciliation fails (which is entirely likely) any House member voting for the package will still receive (and deserve) full public blame/credit for passing the Senate version unamended.

I think the point of the maneuver is to give voting House members some leeway in saying later that they didn't vote for Obamacare, but frankly I don't think ANYONE is going to be that stupid as not to see through the gimmick, and further just trying it this way is going to erode the credibility of both the bill and those attempting it.

Posted by: looking closely at March 16, 2010 05:16 PM (PwGfd)

51 I'd just like to say that the high quality of legal thinking around here (relative to the blog's usual fare, which I love,) is pleasantly surprising.
Eugene Volokh's a fucking piker.*
*kidding, obviously.

Posted by: jdub at March 16, 2010 05:17 PM (t9pKb)

52 An interesting case that seems to be pertinent is INS v. CHADHA 462 U.S. 919 (1983). The Supreme Court ruled the legislative veto to be unconstitutional because of violations presentment and bicameralism. I always understood the case to mean the constitution defines what a law is (both houses passing it, signed by president) and if it doesn't meet those formal requirements, it is not a law.

Posted by: louis c at March 16, 2010 05:17 PM (OFxA7)

53 Ace, I disagreed with Drew's take too, but for a slightly different reason. This won't pass muster because we the people will find it unconstitutional whether the courts agree with us or not, and we will act accordingly.

Posted by: The War Between the Undead States at March 16, 2010 05:19 PM (4H6F4)

54 And incidentally, I agree with those pointing out that this is kind of an easy sham to see through... "you voted for Govcare" vs "you voted trickily for Govcare" isn't a huge difference in terms of the political vulnerability.
Which makes me wonder if the whole thing's a massive headfake, towards what purpose I know not.

Posted by: jdub at March 16, 2010 05:19 PM (t9pKb)

55 .StrikeThroughText { text-decoration:line-through; }.LightBlueHighlightedBoldText { background-color:#00FFFF; font-weight:bold; }

Good catch louis. From Clinton v NY


There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials**2104 provide abundant support for the conclusion that the power to enact statutes may only be exercised in accord with a single, finely wrought and exhaustively considered, *440 procedure. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784. Our first President understood the text of the Presentment Clause as requiring that he either approve all the parts of a Bill, or reject it in toto. FN30 What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the finely wrought procedure that the Framers designed.


Clinton v. City of New York 524 U.S. 417, 439-440, 118 S.Ct. 2091, 2103 - 2104 (U.S. D.C.,199

Posted by: s'moron at March 16, 2010 05:22 PM (UaxA0)

56 I don't think you're supposed to get it. They're like children, they want the bill both identical and amended simultaneously. They want to "deem" it one or the other as they need it to be.
Posted by: ace at March 16, 2010 05:08 PM (i6ROy)
Then they should call it the Schroedinger Rule. "The Bill is both passed and not passed, and we won't know which one it is until the Senate opens the box."

Posted by: stuiec at March 16, 2010 05:29 PM (7AOgy)

57 REMEMBER...this is a supreme court that was mocked for their work by a second rate, con law instructor who could not carry their water. This issue is not about a procedural rule, it is about the fundemental way in which BILLS become law...not joint resolutions, as this tactic has been used for in the past. This has sooo much more to it for the Supreme's to consider given what it could do to the fabric of our country's governmental construction. So, Drw and Ace, I say you are dead wrong. Sam and John and Antonin and Clarance will not let this happen and even Kennedy...swinging like he can....does not have the stomach to through the country away in one decision. You may even get Bryer on this one. Stevens could even surprise you.Hagamuffin Ginsberg and SotoMoto are anotherstory. All in all, this is over for the Dems if the Supremes ride in.

Posted by: rightzilla at March 16, 2010 05:38 PM (rVJH4)

58 I don't think you're supposed to get it. They're like children, they want the bill both identical and amended simultaneously. They want to "deem" it one or the other as they need it to be.
Ah yes, the Alice in Wonderland rule.

Posted by: Decaf at March 16, 2010 05:39 PM (NooBZ)

59 I still think the Court will punt the issue - if they've let this kind of dodge slide by them before they'll worry too much about appearing to "take sides" to rule on ObamaCare. They're still smarting from the "SCOTUS decreed that W was Prez cuz they're all Evil Skull & Bones types - Democracy Denied !" crap the nutroots spewed in 2001.

It amounts to martial law and truly "shredding the Constitution" but I fear they'll let it happen.

How ironic would it be that the Court, which sees fit to stick its nose where it doesn't belong 90% of the time, would go to the "judicial restraint" card on the one occasion in 10 years when there was a legitimate, undisputably-within-their-legit purview Constitutional issue that needed to be decided ?

Posted by: societyis2blame at March 16, 2010 05:42 PM (rPDD/)

60
If demonpass is constitutional it would mean that 3 people make the laws of the nation? The president, the leader of the house and the leader of the senate? Really? I don't think the writers of the constitution were that retarded.

Posted by: Dang at March 16, 2010 05:43 PM (UA4gE)

61 If you can pack the SCOTUS with enough liberal judges you can do almost anything you want.

Posted by: harleycowboy at March 16, 2010 05:46 PM (JKGfQ)

62 "you voted for Govcare" vs "you voted trickily for Govcare" isn't a huge difference in terms of the political vulnerability.
Actually, the latter is more toxic.

Politician: "ObamaCare passed, but I didn't really vote for it, I voted for a rule that deemed it to have passed."

Constituent: "You knew we were opposed to ObamaCare, yet you cast a vote that made it law. You were too cowardly to vote directly for or against the bill, so you signed onto an unconstitutional gimmick in hopes of obtaining cover. And you thought that we would be too stupid to realize what you were doing. Three strikes. You're out."

Posted by: angler at March 16, 2010 05:50 PM (SwjAj)

63 DemonPass?

Posted by: demoncrat at March 16, 2010 05:54 PM (GkYyh)

64 53:

If Congress passes this law - violating any common-sense reading of the Constitution - this is one instance where I'd support disobedience.

I still distrust going the "natural law" route as a slippery slope to anarchy, but where the elected officials go rogue in this kind of blatant fashion the blame ultimately lies with them.

If we don't call their bluff after a stunt like this, this will become the normal way of things, and that's a more frightening prospect than whatever might happen through our disobedience.

Posted by: societyis2blame at March 16, 2010 05:55 PM (rPDD/)

65 The US is having its first attemped coup. We are so grown up now.
Personally, I never thought the coup would be televised.

Posted by: Rat Patrol at March 16, 2010 05:57 PM (dQdrY)

66 How ironic would it be that the Court, which sees fit to stick its nose where it doesn't belong 90% of the time, would go to the "judicial restraint" card

First of all, the SCOTUS exists for the purpose of interpreting the Constitution. This is a constitutional question specifically to interpret the meaning of PASSED. It is a textbook case for them.

Second, nothing gets to them that is not first brought, so that is hardly sticking their nose in....Not likeing their rulings is not the same as them sticking noses in inapropriate places.

Posted by: rightzilla at March 16, 2010 05:58 PM (rVJH4)

67 66:

Your first paragraph simply restates my point - this is a textbook issue for them (thus the "irony").

Your second paragraph simply misses my point - SCOTUS regularly exceeds its proper role by legislating from the bench.

Is the entire Federalist Society just pissed off about how the Court ruled in particular cases or do they have a broader jurisprudential objection to what the Court is doing and how it's doing it ?

Posted by: societyis2blame at March 16, 2010 06:07 PM (rPDD/)

68 @ societyis2blame
I guess it is just astonishing to me that people REALLY think that SCOTUS would punt this given the nature of this particular question. The compelte gravity of this question at least matches the 2000 election and tehy would simply NOT punt as a result. There is nothing but your unsuported statement that THIS question would be punted, so you create an argument in hich you suggest irony, but there is nothing to really conclude that it would be a puntable case.
As far as legislating from the bench, that is not the same as sticking ones nose in, that is the nature of a ruling you think goes beyond their scope, but having their noses there in the first place is their actual job. Seems whenever a ruling is not what the listener wants, he scream LEGISLATING FROM THE BENCH instead of simply understanding he may be wrong himself.

Posted by: rightzilla at March 16, 2010 06:17 PM (rVJH4)

69 Mark Levin just announced on his FB page the if this goes the Slaughter rule way, he and the Landmark Legal Foundation will immediately file a federal lawsuit.

Posted by: Unclefacts, Meteor Summoner At Large at March 16, 2010 06:38 PM (erIg9)

70 Obviously there WAS 'harm and fowl'. Now they're gang raping The Chicken.

Posted by: torabora at March 16, 2010 07:33 PM (a4UVa)

71 I'm not sure how the court decides to hear a case, but I wonder if Obama picked a bad time to dump on the court. Bad for him that is.

Posted by: kansas at March 16, 2010 08:12 PM (34yXu)

72 Personally, I intend to refuse to pay any "premiums" toward supporting obamacare. When the brownshirts come for me, and my weapons, they will not go away without pain and suffering. Should I survive, I intend to sue the Democratic party for misrepresenting me as an American citizen. If it should make the docket at SCOTUS, I"m sure I'll have many representatives on my side.

Posted by: Eric at March 16, 2010 08:56 PM (Qc/s6)

73 As an OT question. Are Roberts and Alito eligible to run for President in 2012 without giving up their seat? Either one has my vote.

Posted by: Eric at March 16, 2010 09:01 PM (Qc/s6)

74 If you look at past conflicts between the judicial and executive branch, the executive branch has generally only been aggressive when it had public opinion on its side (which is generally the case, given that politicians usually want to make people happy more than they want to uphold the Constitution, unlike judges who USUALLY BUT NOT ALWAYS want to uphold the Constitution more than they want to make people happy)

This time, health care "reform" is deeply unpopular. John Roberts could win a big victory against the executive branch in general, and against Barack Obama in particular, by resisting the president on this. Even if 4 of the liberal justices would go for it--which remains in doubt--it would come down to AK.

We cannot rely on Anthony Kennedy. He might get things right more often than he gets them wrong, but who the hell knows how he feels about health care "reform"? He's a very rich old judge, a member of the privileged elite who don't need to worry about health care being rationed away from them. He might decide that the Obama Fairy can wave a magic wand and get Obamacare to work. He might go along with it.

I would not count on SCOTUS to protect us in this instance. I certainly don't trust any of the 4 liberals.

Posted by: Daryl Herbert at March 16, 2010 09:27 PM (4Gg3E)

75 The real problem, win or lose, is how thin things are getting. This should never even be on the table. The Republic is fading and I am not sure how that can be reversed.

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Posted by: shape ups shoes at March 16, 2010 09:36 PM (3iGDt)

77
First of all, the SCOTUS exists for the purpose
of interpreting the Constitution. This is a constitutional question
specifically to interpret the meaning of PASSED. It is a textbook case
for them.


Second, nothing gets to them that is not first brought, so that is
hardly sticking their nose in... Not liking their rulings is not the
same as them sticking noses in inappropriate places.

Posted by: rightzilla at March 16, 2010 05:58 PM (rVJH4)
Spot on.

Posted by: Tattoo De Plane at March 16, 2010 10:10 PM (mHQ7T)

78 well, all it takes is a lawsuit. the court needs someone to file a suit on the matter before they can take it up. at that point they can decide whether or not to look at the case. i am sure there are many very smart people right now pouring over that bill preparing to launch lawsuit after lawsuit in case it does get passed. the supreme court does have the right to judicial reivew. they can decide that legislation is unconstitutional. hopefully, this will happen here if the spendocrats try to push this through. i can't wait til this moron is out of the white house. he's really stinking up the place. spend spend spend spend spend... that's all this guy does..spend spend spend...

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80 Perhaps something is being forgotten in all this legal wrangling.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Everything that follows is completely useless when We the People decide it's time to make the change happen.

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83 Mark Levin alsobelieves that the DemonPass strategy won't pass constitutional muster, seems that the Supremes have previously ruled that the bill that passes both houses of congress must contain the same text amending the bil via DemonPass changes the text of the bill and sends it back to the Senate for re-passage rather than creating a bill that can be made law.

Posted by: shoey at March 17, 2010 02:16 PM (Ed9Xn)

84 Looks like a couple people already mentioned this...
But there have definitely been instances where the Supreme Court didn't invoke the Political Questions doctrine and ruled on cases involving congressional procedure. I think the Supreme Court would step in here as well.
The most relevant example that a couple folks mentioned is INS v Chadha, which found the use of a legislative veto was unconstititutional. At the time, legislative vetos were a common tactic used by Congress to "oversee" the actions of the executive branch.
Congress would delegate some authority to the exec...but if they didn't like what the exec branch was doing, they would overrule it using a legislative veto (a one-chamber veto). The INS v Chadharuling invalidated a few hundred federal laws that included the use of a legislative veto.
Of course, Congress has totally ignored the INS V Chadha ruling and continues to use legislative vetos. Sigh.

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