Human Exceptionalism

Obamacare: Unleashing a Constitutional Crisis

I guess if our government’s Democratic leaders don’t get their way on Obamacare, they would just as soon tear the country apart.  Having lost the political debate over Obamacare, and apparently unable to muster sufficient votes in the House to pass the Senate version of the bill as written, Speaker Pelosi is reportedly planning on getting it through the House by passing the “Slaughter Rule,” that would “deem” the Senate version of Obamacare to have passed through the House of Representatives–without anyone actually voting on the bill itself.  From the story:

In addition, it looks like House Democrats won’t have to vote directly on a Senate bill they really don’t like. The speaker hasn’t made a final decision, but she told her rank and file during the meeting that the plan now is to craft the legislation in such a way that they would “deem” the Senate bill passed once the House approves the package of fixes.

The excuse for this attempt to sidestep the Constitution is that the charter gives each chamber the right to control its own internal rules.  Thus Section 5 of the Constitution of the United States states:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

This applies to internal procedures for legislating, not the actual requirements to pass a bill. For example, the filibuster is a rule of the Senate that requires 60 votes to close debate.  That rule is wholly within the purview of the Senate, and the filibuster rule is established anew with each new Congress.  The Filibuster is not required by the Constitution.  Senators who are now agitating to change or revoke it in the next Congress are acting wholly within the Constitution, and if the Senate wishes to become just like the House regarding rules of debate, it is perfectly free to do so.

But you can’t pass an internal procedural rule that effectively revokes the Constitutional requirement of what must actually happen for a bill to pass into law!  In order to become law, the Constitution requires a bill to pass both houses in identical form, and then either be signed into law by the president, or made law over a presidential veto.  Section 7 states:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.  If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But 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.

The U.S. Senate’s Web site explanation of this provision states:

The “presentment clause” describes the only way that a bill can become law: it must be passed in identical form by both Houses and it must be signed by the president or passed by a two-thirds vote of Congress over the president’s veto.

In other words, the bill must be passed, not a rule “deeming” it passed.

I heard the lawyer and radio talk show host Mark Levin citing the passage that votes must be recorded, as another reason why the “Slaughter Rule” would fail constitutional muster.  I don’t think so.  That clause clearly applies to veto overrides and many bills have passed without explicit yeas or nays recorded.  But still, the bill must be passed.

If President Obama signs an Obamacare bill that was not actually voted on in the House of Representatives, it will unleash a bitter constitutional crisis of the kind I haven’t seen in my 60 year-+ lifetime. There will be years of intense litigation.  Tremendous uncertainty as to whether it is actually law will roil the economy and divide the country.  People will refuse to pay the taxes required in the “statute” on the basis that there is no law.  Regulators will be sued.  Vitriol of the kind not seen since the session crisis of 1861 will take over our politics, sowing even deeper societal divisions than already exist.  At the end of the day, I believe, Obamacare will be declared null and void because it never actually have passed both houses of Congress.

And that’s the best case scenario. The worst case scenario is that the maneuver is somehow approved by the Supreme Court. Then, we will have lost our constitutional republic, because Congress will no longer have to pass bills.  Just pass internal rules.  And liberals who support Obamacare fervently enough to believe this expedient is justified, should understand clearly that sauce for the goose is sauce for the gander.

No bill is worth this price.  Let us hope that reason prevails and the bill either passes or fails, and that we can then deal with the matter politically and legally from that basis as we always do in matters of public controversy.  The last thing we need in these precarious times is a constitutional crisis.

Wesley J. Smith — Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

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