The Slaughter solution, constitutionality, and precedent

The New Neo Posted on by

Many have questioned whether the Slaughter solution, if used, would stand the test of constitutionality. Although no one knows, here’s a post at Volokh about a possibly relevant case, Public Citizen v United States District Court for the District of Columbia, that occurred back in May of 2007.

This was the situation in Public Citizen [emphasis mine]:

Yesterday the U.S. Court of Appeals for the D.C. circuit turned away Public Citizen’s challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.

The D.C. Circuit, in an opinion by Senior Circuit Judge Harry Edwards, upheld the district court’s holding that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.'” Once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement. This “enrolled bill” rule precludes the sort of challenge Public Citizen sought to advance. Public Citizen sought to distinguish its case from Marshall Field in various ways, or suggest that the decision had been tacitly overruled, but the D.C. Circuit rejected these arguments…

The Court rejected the idea that the judiciary should challenge the validity of laws that the two political branches attest were passed in accordance with the relevant constitutional requirements. Such a “spectacle” would subordinate” the legislature to the judiciary and “disregard” its coequal position in the government. Moreover, it could lead to unnecessary uncertainty in the law.

In the case of Public Citizen, the discrepancy between the two bills involved a minor clerical error. The passage of HCR by the application of the Slaughter solution would involve a very different set of facts, but if it came to a constitutional test the Court might still consider that it shouldn’t declare Slaughter unconstitutional for similar reasons as in Public Citizen—separation of powers and the need for certainty in statute laws of the land, once a bill had been declared (or in the case of Slaughter, “deemed”) passed by both houses and then signed by the president.

But here’s a fascinating comment to the Volokh post—and remember, it was written in May of 2007 [emphasis mine]:

…I think it’s always an open question how much bad faith would really be tolerated.

Consider what happened here: the House and Senate passed two different bills, different because they contained two different dollar amounts in one spot. The Republican leadership knew that that one specific dollar figure hadn’t made any real difference in getting the bill passed, but that it had been a tough vote nonetheless and they really didn’t want to hold a new vote and face the possibility of defections. So instead, they just signed a false attestation that the House and Senate had passed the same bill, and the President, either not knowing or not caring, signed it into law…

But you could easily imagine a scenario with far worse bad faith than that. Let’s say Nancy Pelosi and Harry Reid sign an attestation falsely claiming that the House and Senate have passed a bill to nationalize health care, even though the bill was never even considered by Congress, and President Hillary Clinton signs it into law. Would the courts really stay out of the issue, even if it was this bad?

If they wanted to, I’m sure the courts could manufacture some distinction that would distinguish the previous cases where the bad faith wasn’t so blatant. On the other hand, maybe their thinking is that if the bad faith is this clear, there’s going to be a political remedy (like impeachment), and thus maybe they should just steer clear rather than issue a decision that might just be ignored.

And then there’s this comment on a recent thread at Volokh about the Slaughter solution. The commenter offers the following quote from the Appeals Court’s 2007 ruling in Public Citizen (otherwise known as the “enrolled law” case). Here is what the US Court of Appeals wrote back in those naively trusting days, before the team of Obama, Pelosi, and Reid got together and cooked up certain schemes [emphasis mine]:

It is said that…it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution.

The US Court of Appeals judges didn’t seem to be very prescient there, did they?

[ADDENDUM: I’ve been informed by a commenter that apparently that last quote was from Marshall Field (Justice Harlan) rather than Public Citizen. Since Marshall Field was decided in 1892, I guess Harlan couldn’t be expected to have seen that far ahead.]

Here’s what tyranny looks like at the beginning

The New Neo Posted on by

I have believed for quite some time that the Democrats will stop at nothing to pass HCR.

They will do whatever it takes, even if they have to trash the entire Constitution to accomplish it.

The stakes are that high for them. And it’s not about health care reform, it’s about the expected entrenchment of such entitlements and the raw power to grow government.

If you doubt me, take a look at this, this, and this.

The Gitmo lawyers: maybe Lynne Stewart wasn’t such an anomaly after all

The New Neo Posted on by

Remember Lynne Stewart? She was the defense attorney convicted of helping her terrorist client Abdel Rahman send messages to his supporters. Stewart acted in violation of an agreement that “she would not “use…meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman”.

As Andy McCarthy points out, Stewart’s conduct began in 1999, but she wasn’t tried until 2004 and sentenced till 2006, after which she was free on bail until November of 2009, when she finally entered prison to begin serving her remarkably short 28-month sentence. Andy McCarthy, of course, was Abdel Rahman’s prosecutor, and has tirelessly written about legal issues involving terrorism for the last decade or so.

Now McCarthy takes up the latest revelation of travesties on the part of lawyers for terrorists, based on this longer piece by Burlingame and Joscelyn in the WSJ (a must-read). The facts are, quite simply, shocking—if we retained our power to be shocked any more.

Like Lynn Stewart, the attorneys for the Gitmo defendants agreed—as a condition of their being allowed access to their clients—not to give them any “information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel.” Apparently these oaths were regularly violated, and when the Bush Department of Justice tried to get these lawyers dismissed, it was inundated with filings in their defense and ultimately gave up the battle:

The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

McCarthy summarizes the actions of some of the lawyers who defended the Gitmo detainees (parenthetical comment mine):

The Gitmo Bar…provided al Qaeda detainees with a propaganda brochure that instructed them on how falsely to claim that they had been tortured and abused…fomented a detainee hunger strike that disrupted security at the camp and set the stage for fabricated reports that the detainees were being tortured and force-fed…provided the detainees with virulently anti-American rhetoric that compared military physicians to Nazi Josef Mengele, labeled DOJ lawyers “desk torturers,” and informed the detainees about the Abu Ghraib abuses and the potential for framing President Bush as a war criminal…provided the enemy combatant terrorists with a hand-drawn map of the detention camp’s lay-out, including guard towers…incited the detainees against the military guards…posted photos of Guantanamo security badges on the Internet in a transparent effort to identify U.S. security personnel…facilitated enemy combatants in communicating messages and interviews to their confederates and the outside world [sound familiar?]…provided a detainee with a list identifying all the other detainees in custody…provided the detainees with news accounts about the war in Iraq and Afghanistan, including reports that U.S. forces were sustaining devastating casualities from IED attacks.

Our system of justice is an adversarial one which depends on even the most vile of defendants receiving counsel. Defense attorneys perform this task, which is essential for the functioning of justice. But these attorneys have obviously gone above and beyond the call of duty.

Most of America would be rightly outraged at this. But will most of America know about it? The WSJ is one of the few relatively mainstream newspapers in this country that still writes about such matters. Here’s a sample of how the left treats the story. As for the rest, it’s either crickets chirping, or cries of McCarthyism (of the olden-day variety).

It appears that the long Gramscian march has not only taken over some churches, the press, and our educational system, but much of the legal system as well. Or maybe lawyers were actually the early shock troops.

Reality TV feeds off itself

The New Neo Posted on by

As controversial sextuplet mother (her sextuplets are not controversial; the mother is) Kate Gosselin and most recent Bachelor Jake Pavelka graduate from their respective shows to appearances on the newest “Dancing With the Stars,” (are you still with me, guys and gals?) premiering next Monday, TLC announces the Gosselin’s replacement: “Quintuplet Surprise,” featuring the Jones’, parents of (you guessed it) quintuplets.

That was a mouthful, wasn’t it?

This is what passes at TNR for analysis of the controversies involved in the HCR cramdown

The New Neo Posted on by

Ah, the subtle nuanced thought processes of the liberal intelligentsia, as exemplified by Jonathan Cohn, senior editor at The New Republic and its resident social welfare policy and health care expert.

Cohn sees discussion of the legal issues raised by the Slaughter amendment and other arcane and possibly (probably?) unconstitutional maneuverings by House leader Pelosi as not worthy of serious consideration. Nope, it’s all just politics, and who cares anyway, as long as the Democrats win?

Or, as Cohn—Harvard alum and former President of its newspaper the Crimson, as well one of the best health care writers around, according to the Times and WaPo—would say: “whatever.”

Here’s the excerpt from his trenchant analysis [emphasis mine]:

There’s still talk of a procedure under which the House would pass the reconciliation package and, in the process, “deem” the Senate bill passed without a direct vote on it. Apparently the Senate bill could then go to the president for signature, even as the reconciliation bill went to the Senate for action there. I say “apparently” because I’ve heard enough conflicting explanations of how this might work that I’m reluctant to state this as fact.

This idea, by the way, continues to baffle me. The technicality of having deemed the Senate bill into law rather than voting on it seems unlikely to spare Democrats the attack ads they want to avoid. At the same time, it seems likely to muddle the message of demanding an “up-or-down vote,” which has helped clarified the issue for voters and help put enactment within reach.

Whatever. The important thing is that the bill passes.

Health care reform machinations: it occurs to me…

The New Neo Posted on by

…that if the Slaughter solution is used, members of the House will be able to outdo John Kerry in ludicrousness.

Remember when Kerry famously said, “I actually did vote for the $87 billion, before I voted against it”? Well, now Representatives can say “I actually did vote for the Senate health care reform bill at the same time I voted against it.”

That’s progress for you.

And by the way, all the machinations that have been involved so far in keeping this moribund bill alive, and possibly even passing it (if the smirking Robert Gibbs is to be believed, by next Sunday), remind me of nothing so much as the final basketball game in the 1972 Olympics, the one between the USA and USSR, where the officials kept discovering extra seconds, enough to make sure Russia had the time to finally win in the end:

Under enormous pressure, the Illinois State guard sank both free throws giving the Americans a 50-49 lead, their first of the game. After the Soviets in-bounded the ball, the referees halted the game with one second remaining. The decision was made to put three seconds back on the clock. At issue was the Soviets’ contention that they had signaled for a time-out between Collins’ two free throws. The game officials never acknowledged the time out. The validity of whether a time-out was legally signaled for has divided passions on this game for 30 years.

After the Soviets in-bounded the ball a second time, the horn sounded signaling an apparent American victory. Moments later, the teams were ordered back on the floor because the clock had not been properly reset to show three seconds remaining. Because of this mistake by the scorer’s table, the celebrating Americans stood in disbelief when they were told they had not won anything yet.

“We couldn’t believe that they were giving them all these chances,” said U.S. forward Mike Bantom. “It was like they were going to let them do it until they got it right.”…

Alexander Belov, who moments earlier had been the goat, became the hero. Rising between Americans Jim Forbes and Kevin Joyce, Belov caught a full-court pass and scored the winning lay-up as time ran out, this time for good. The controversy did not end with the game. Convinced they had been wronged, the U.S. team filed a formal protest with the International Basketball Federation. Later that afternoon, a five-member panel ruled in favor of the Soviets.

“Everything progressed according to strictly Cold War politics,” said Sports Illustrated writer Gary Smith. “There were three Communist Bloc judges. It’s a three to two vote. America loses. The Soviet Union wins the gold medal, and at that point the American players are facing a stark reality. Do they accept the silver medal?”…

Thirty years later, the silver medals sit unclaimed in a vault in Lusanne, Switzerland. The intervening years have done little to hide the emotions of that historic night in Munich.

Basketball games are sport, however. Health care reform, and the compromises the Democratic Party has been willing—nay, eager—to make with the concepts of consent of the governed, rules, liberty, and the Constitution, are something far more serious.

Knaves or fools revisted

The New Neo Posted on by

Things have certainly been heating up in the health care reform battle. And they’ve also been heating up a bit in the comments section of this blog, in several debates having to do with the question of what President Obama and the Democrat leaders in Congress are about, and what they are intending and planning for us all.

Of course it’s all speculation; we don’t read minds and we can’t tell the future. But educated guesses based on our best reading of the evidence before us is an activity that can be both interesting and helpful in planning for the future and changing the course of events—if possible—in a more positive direction.

Perhaps we are spinning our wheels. Perhaps we are powerless before the juggernaut. Or perhaps we are wrong and too alarmist, and all will be well. But those possibilities don’t mean we should stop discussing the past and present, what they might mean, and what we and others might do about it all, now and in the future. That’s part of the function of the study of history and current events, and of political discussion and speculation.

One of the biggest debates here has been about the nature of Obama and his confederates. It can be summarized as the “knaves or fools?” question. I’ve discussed this before (here, for example). It’s an interesting question; at this point, I happen to come down on the side of “quite a bit of both.”

Of course it’s all speculation. But not idle speculation. It’s based on my powers of observation and reasoning—you may, of course, come to a different conclusion on the knaves/fool question, based on your analysis of the same situation.

What’s the point of discussing the knaves/fools question? In a way, there is none: even fools can do a lot of damage if they are lucky enough to succeed. But in a way, there is a point: knaves tend to be even more successful, and certainly more ruthless.

However, as J.L. wrote in this comment:

Lets say were all on a cruise ship, and the captain is about to direct the ship right into an iceberg. We can all argue about the “intent” of the captain. In the end, we really cannot decifer whether he is actually intebnding harm, or whether he is just a total fool. He could be either.

What we do know is that the ship is being directed in a manner that most passengers believe, with good reason, will result in the destruction of the ship at worst (or at best, the sustaining by the ship of substantial damage), and the probable (or at least possible) loss of life.

We do not need to reach a conclusion as to whether this captain actually intends harm. We can accept that he may not mean harm, and that he is only a fool. In either case, the passengers of the ship are in the grave situation of needing to prevent the captain from carrying out his directions. In either case, he must be stopped…

I think, with regard to Obama and his allies in Congress, that I cannot come to the conclusion that they intend harm…But they are definitely creating harm, and I agree that the actions they are pursuing are such that alarm is called for. I believe in using all legal means possible, from protest to, if possible, recall petitions, to prevent them from passing this Obamacare monstrosity that most of the American people do not want.

I think this is a good summation of our current situation. Intent may be less relevant than we think; it is more important to judge whether we are heading for a metaphorical iceberg and try to stop it, whatever the intent of the captain[s].

But intent may be relevant in a different way: if we are able to infer intent from the evidence of a person’s repeated actions (and I happen to believe we can do so, although certainly not perfectly), then it can also imply future intent. For Obama and the Congressional leaders we have had not just one metaphorical lurch towards the iceberg, we have had many. And from this we can conclude that they are either (a) abysmally and repeatedly negligent and foolish but always in the same direction, towards the iceberg of leftism and government power and reduction of personal liberty; or (b) intending to do exactly what they are doing.

Again, let me say that I agree with J.L. that the remedy (or lack thereof) may be the same in either case. However, the difference may be mostly in the strength of the motivation on the part of Obama opponents, and their resolve and energy to organize against the current administration. If Obama and Pelosi are merely incompetent and bumbling fools, then they are less likely to succeed and there’s not quite as much much to worry about nor as much that we need to do or say. If they are fools and knaves—or worse, knaves and not fools—then there’s more work to be done. Is it not much better, though, to be safe than sorry?

But there is no question that as time has gone on, more and more Americans have become motivated to stop the juggernaut of this knavish/foolish government. The passage or non-passage of the current health care reform bill is a watershed, and the outcome will tell us a great deal.

Literal videos

The New Neo Posted on by

I seem to have stumbled on the phenomenon of literal videos relatively late in the game. A bunch of them went viral at You Tube last spring, and somehow I missed them. But if you, like me, weren’t familiar with them before, I’d say it’s about time you made their acquaintance.

Rock videos are often sort of funny to begin with—sometimes unintentionally so. The literal video does something that seems quite simple: it keeps the music and visuals, but rewrites the words (using a singer who attempts to imitate the voice quality of the original) to describe the action taking place. There is no reason to imagine this would be especially humorous. But in the hands of the literal video creator, it can be screamingly funny.

See if you agree. This is the grandaddy of them all, a redo of the already-quite-strange-enough video version of Bonnie Tyler’s 1983 hit “Total Eclipse of the Heart.” Give it time; it doesn’t really hit its stride right away. But I warn you not to imbibe any liquids while viewing; they may end up on the computer screen:

There are many more. I happen to also like this far more subdued one:

If you’re looking for still more, go here.

Is the Slaughter solution for real?

The New Neo Posted on by

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.

I’m a blogger, not a tweeter

The New Neo Posted on by

Twitter has never held any appeal for me. 140 characters? C’mon, that’s barely enough to get me started. And have you ever noticed how nearly everyone who tweets ends up sounding like a Valley Girl?

But blogging attracted me right from the start, even though it takes a lot more time and effort. A big part of the fun is what I learn while doing the research and writing the posts, as well as reading the back-and-forth of the many wonderful commenters on this blog.

I was always puzzled when I’d hear that there were over a hundred million blogs. Clearly, many of these were either spam and/or kids fooling around for a couple of days and never coming back again—which turns out to be the case.

According to ex-blogger Dylan Wilbanks, blogging isn’t for everyone, even those who think it might be for them:

Blogs are meant for people for whom being a writer, being a creator, is a passion, or perhaps a requirement of life. They’re meant for people for whom Facebook’s ”˜What’s on your mind?’ question can’t always be answered in 500 characters or less.

That would be me.

In 2007, Michael Banks wrote a book called Blogging Heroes: Interviews With 30 of the World’s Top Bloggers. It doesn’t seem to include any political bloggers, but:

When Mr. Banks published “Blogging Heroes” in 2007, there was still a widely shared belief that one could instantly become rich and famous through blogging. Eventually, Banks says, “people sort of woke up to the fact that blogging required tremendous dedication and effort. The best bloggers are there at the keyboard every day, 12 hours a day sometimes, no matter what.” Good blogging he says, is intensive. “You can’t just blurt anything out. You have to think it through.”

Rich and famous through blogging? Pul-ease. That’s reserved for a precious few.

And I put in a lot of time here, but it’s hardly 12 hours—fortunately for me and what’s left of my life.