That super-majority to repeal health care: “our rules mean nothing”
You may have heard the buzz that there’s a provision in the Senate health care bill that it can only be repealed with a 2/3 super-majority of the Senate. That seems impossible and unconstitutional. But it appears to have been inserted for at least one section of the bill, that referring to the so-called “death panels,” otherwise known as the Independent Medicare Advisory Boards.
Here’s a fairly lengthy discussion of the language of the bill and the requirement for sixty-seven votes for repeal of the provision:
In the past, the Senate Parliamentarian has repeatedly determined that any legislation that also changes the internal standing rules of the Senate must have a two-thirds vote to pass because to change Senate rules, a two-thirds vote is required. Today, the Senate President, acting on the advice of the Senate Parliamentarian, ruled that these rules changes are actually just procedural changes and, despite what the actual words of the legislation say, are not rules changes. Therefore, a two-thirds vote is not needed in contravention to longstanding Senate precedent.
It is hardly surprising that this extraordinary requirement for a two-thirds vote to repeal was not publicized widely by those who drew up the bill. They must be relying on the ignorance of the American public, and the protective silence of their own buddies in the MSM.
As best I can tell, the existence of the buried provision was unearthed around the time of the cloture vote (or perhaps even afterwards) by Senate Republicans. Senator Jim DeMint tried to challenge the provision by arguing that it was a rule change, which has traditionally required a 2/3 vote to be implemented rather than a simple majority. After speaking about the extraordinary nature of the provision with the Senate parliamentarian, and receiving the sophistic answer that this was just a procedural change and not a rule change at all, and therefore could be allowed to stand, DeMint remarked, “Then I guess our rules mean nothing, do they, if they can re-define them.”
Many (including this writer) have predicted that the current administration, with the cooperation of the current Congress, is bent on following a Chavez-like course in its efforts to retain and expand its own power, abrogating and/or ignoring and/or going around whatever parts of the Constitution and traditional safeguards to abuses of power that it can get away with jettisoning. I see this particular move as an early semi-stealth measure along these exact lines.
Whether it will be enforceable in the future is anyone’s guess. It is possible that it could be overturned some day by an amendment that does away with this particular language (the one about the rule change, not the one setting up the panel) through a simple majority vote. But if not, watch out for more legislation featuring this sort of provision.
Come to think of it—watch out.
[NOTE: Gabriel Malor at Ace of Spades writes that this is not an unprecedented action of Congress. He says there have been a couple of times in the past that similar language has been used. But my reading of his descriptions of those previous events is that they prohibited changes to the bills if certain requirements were not met, rather than saying they could only be overruled by a 2/3 vote. The language does not seem all that similar to me. This may be a nitpicky point, but law is a nitpicky thing.
And I don’t think those previous provisions listed by Malor should have been allowed, either. No Congress should be able to reach out and tie the hands of a future Congress, which should retain its right to repeal legislation (in whole or in part) in the normal manner.
William Jacobson, a law professor at Cornell, has more.
In a a discussion at Volokh, the consensus is that it is most likely not legally binding because there is no enforcement for a violation.
Yet.]
The only hope of overturning this healthcare bill is if enough Democrat senators and representatives are scared enough by the public’s response to push for repeal and, together with the Republicans, a veto proof majority (2/3rds of both houses) is attained. Otherwise, not enough Republicans will be elected in 2010 to obtain the 60 seats necessary for cloture and, even if they could pass repealing legislation, they will not be able to override an Obama veto. Should a Republican win the presidency in 2012, the Republicans will still need at least 60 senators to get by a Democrat filibuster. But, with the Maine twins in favor of passing good healthcare legislation, who is to say the Republicans will have the will in 2013 or later to undo the healthcare bill.
I suggest another strategy might be more effective. That is, force the Democrats to live with the bill they passed. If the Democrats try to amend the bill after it becomes law, try to pick off one or two Democrat senators to filibuster the amendment. There is a lot of stuff hiding in the bill that probably should not see the light of day. By fighting any amendments, those provisions will come to light and public anger over the bill can be prolonged and deepened.
After 2010, assuming that the Republicans gain at least three seats (one more than necessary to cover the Maine twins), the Republicans can fend off all attempts at amending the bill. If doctors or hospitals or drug companies or makers of medical devices, or insurance companies, or ambulance companies, or nurses, or whomever, start to scream, remind them whose bed they found themselves in in 2009 and that they had better go back to the Democrats (and only the Democrats) for relief. If the screams are loud enough perhaps the Democrats will relent, but I doubt it.
Two thousand pages of impenetrable Senate legislation (and then a several hundred page “manager’s amendment” on top of that at the last minute) can confuse and make analysis under extreme time pressure nearly impossible, can hide and obscure a lot of things; one example of how hard it is to determine which shell the pea is hidden under in this hustler’s game of Three Card Monte is the current scramble to determine which state gets the bribe of a hospital.
It has often been commented on–even by far left Rep. John Conyers, chairman of the House Judiciary Committee, no less–that Democratic members of Congress don’t need to “read the bill,” and some commenters, who I agree with–say members haven’t read the bill because they don’t really care what is in the bill–it is just a vehicle, helping to set up what Glenn Beck calls “a new framework,” and once this framework is erected on an emergency basis, allowing for no real analysis or debate in order to hide its real purpose, they can fill in the details of the operating mechanism inside the framework at leisure.
This impenetrability and the compressed time schedule also offers members of Congress cover after passage, so that they can argue that they were too rushed to pick up on parts of this legislation that–had they known of them–they would never have voted into law.
I believe that these massive House and Senate bills–drafted by far Left think tanks, SEIU and other key individuals–are stuffed with thousands of deliberately inimical, objectionable, illegal, unconstitutional, insane items–many of which are intended to be “game changers”–in the hope that enough of them will not be found and/or stripped out in a House-Senate conference or–in view of how many their are–will just not objected to because other items seem to be more harmful, that enough may become law to really, decisively “change the game,” and the hell with whether there is a coherent whole left, to hell with whether the final bill really reforms health care or saves money, as long as enough malicious items that help to destroy the Capitalist system and our Democracy, and massively increase government’s power, reach and control vis-a vis the individual citizen, become law.
So there you have it, Up is down, black is white and all animals are equal, though some may be more equal than others.
Ten years or so ago, some member of the house, a republican, said that there are democrats and there are Americans. He was roundly excoriated, as he deserved to be, by all sides. Today, I’m no longer so sure he wasn’t just ahead of the curve.
Where’s the outrage??
On hopes not, one hopes we’ll fight, but still, it’s impossible not to be a bit kicked over by all this.
Adieu, l’ancien regime? . . .
As I understand it each convocation of the houses adopts it’s own set of rules. Usually they accept last years set, but I don’t think anything really binds a future congress to an old ones rules.
What these seem to be are laying a marker in the sand requiring the new session to take time out and strike that provision rather than simply accept the prior rules.
http://news.yahoo.com/s/ap/us_congress_party_switch
This guy deserves an “Attaboy”!
Where is the MSM? This incident illustrates the blatant betrayal and lack of respect for somewhere in excess of 50% of Americans, a constituancy which deserves significantly more consideration than these kinds of deceptions exemplify. The MSM, by their complicit silence, are aiding and abetting the most insidious kind of dishonesty for whatever personal reasons these people have one can’t imagine. The MSM have abdicated their fiduciary responsibility to the nation in favor of shilling for the radical left-wing Democratic Party. It’s getting more personal everyday…
The MSM are the preeminent hypocrites in this Republic today; if this sort of thing was being orchestrated by the Republicans and George Bush, they would be all over it. Hypocrites!
Perhaps if Congress’s gold plated healthcare coverage (paid for by us) is repealed and that they have to look to the same insurance/Medicare coverages that the rest of us have to settle for. Then we might see some real reform.
If only…
There’s a petition by Congressman John Fleming of Louisiana’s 4rth District to force members of Congress to enroll themselves in any health care plan they vote for. Make them have to live under what they impose on the nation. Anyone can sign the petition. Link below:
http://tinyurl.com/m6v2ph
In recent discussions on this blog, I’ve been arguing against the notion that a “coup” is imminent, or that totalitarianism is about to dscend on the U.S.. I still hold to that. (The discussions on Volokh seem to suggest this provision is either unconstitutional or rescindable, the language notwithstanding.)
Nevertheless, I am taking to heart Neo’s previous comment to the effect that:
Here is evidence to that point: Obama’s Dems attempting to entrench the power of one of their beareaucratic creations.
Point well taken, Neo. Point well taken.
http://hotair.com/archives/2009/12/22/sebelius-everyone-will-pay-into-abortion-coverage-fund/
The link says it all