Is the Slaughter solution for real?
I wrote earlier that I didn’t know whether the Slaughter solution would hold up, and I still don’t know. Will it bring reluctant Dems in the House on board? Does Pelosi have the cojones to go through with it? And if so, is there a way to challenge its constitutionality, and would the Supreme Court hear it, and if so what would the SCOTUS ruling be? And if the Court were to rule it unconstitutional, how would that decision be enforced against a Congress and an administration that might just be inclined to go even further rogue?
I don’t know the answers. But I do know that certain lawyer-bloggers such as Paul Mirengoff at Powerline believe that Slaughter’s “creative” rule-bending might be able to pass muster:
It’s a weird scheme and one that pushes constitutional limits. As Kuttner notes, though, the judiciary takes a generous view of Congress’ authority to “determine the rules of its proceedings.” Thus, it’s likely that, if the House Dems prevail on their one vote, we will be stuck with some form of Obamacare.
And here’s the Kuttner article to which Mirengoff refers:
A self-executing rule marries procedure and substance. It is a resolution of the House of Representatives that provides that the passage of the rule has the effect of passing substantive legislation. Unusual? Yes. Subject to being shouted at as an arrogant abuse of power? Yes. An end to cooperation between House Republicans and Democrats this year on any other matter? Likely. But the generous view that the judicial branch has taken in interpreting the authority of Congress to “determine the rules of its proceedings” means a bill thus passed would still be the law of the land.
This last chilling thought is what I meant when I wrote, in a slightly different but highly related context, “the Supreme Court might refuse to hear the case, or be very reluctant to rule against Congress…”
Here’s a post from Ace that references a report that Pelosi plans to use the Slaughter strategy, and soon. And here’s more in that vein:
And after debating House Majority Leader Steny Hoyer on the chamber floor, Minority Whip Eric Cantor emerged convinced that Democrats are going to use the [Slaughter solution]….“I can infer that we’re going to see a rule that will deem the Senate bill as having passed, and at the same time not even have 72 hours to even look at what they are passing,” Cantor, a Virginia Republican, said in an interview outside his office at the Capitol.
“The outrage to me on the part of the public is going to be focused on the fact that there is not even an up or down vote, a clean up or down vote,” Cantor said…Cantor expressed no doubt that the tactic could be used.
“It’s a self-executing rule. It is akin to passage but hidden in a rule as a side-note, passing the 2,700-page, $1 trillion bill, oh by the way,” he said.
So it seems likely that if Pelosi can get the votes for this, she will go for it. And then we shall see what we shall see.
If we don’t need to have real votes, we don’t need to have a Congress either. No representation without representation.
It is hard to imagine that the Slaughter Rule could withstand a challenge under Article I, Section 7. You would need to define the resolution with a footnote as being identical to the “bill” the Senate passed. Inasmuch as the rule of law depends upon having exact, statutory language, there is reason to believe that the courts would take a dim view on a “law” where exactly the same language didn’t pass both Houses.
I’m not a lawyer, but this strikes at the essence of what it means to have a Republic. I would expect for there to be some pretty heavy duty precedents that such a resolution equals a “bill” for statutory and constitutional purposes. Maybe such precedents exist, but I have never heard of them. Absent such a precedent, I would expect the SCOTUS to invalidate the law.
This move is too clever by half, and it is bound to generate a Constitutional challenge from the first person who refuses to pay taxes to pay for it, or the first senior citizen who has their Medicare cut, or the first physician who challenges its regulatory authority.
Going into this year you wouldn’t think they could be as depraved as this. But again you’d be wrong.
No bill can be passed that hasn’t been voted on: as I’ve said before, that is plain and simple common sense. No Congressional precedent, and no court decision, can make it otherwise.
As I’ve also said before, if they want an insurrection, the quickest way for them to get one is to pretend to have passed a bill they didn’t vote on.
If the Democrats in Congress do it, I am quite confident that Americans will give them what they will so richly deserve.
I just remembered an apropos Lincoln quotation:
The people of these United States are the rightful masters of both Congresses and courts – not to overthrow the constitution, but to overthrow the men who pervert that constitution.
http://weblog.theviewfromthecore.com/2009_03/ind_005714.html
I want to go to Virginia. Really!
Richmond Times: Virginia’s General Assembly is the first in the nation to approve legislation that bucks federal health care reforms by banning mandatory health insurance coverage. Without debate, the House of Delegates voted 80-17 Wednesday to accept Senate amendments to a bill that supporters say preserves Virginia’s prerogatives as a state. Thirty-four other legislatures have filed or proposed similar measures rejecting health insurance mandates.