The Hayride

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

So reads the oath of office for all members of Congress, an oath which is in the process of being broken by the current Speaker of the House who is in charge of administering it to new members. That is the perilous state American government is in as Nancy Pelosi and her stooges in the House Democrat leadership scramble for whatever methods available to them in attempting to pass a gallstone of a bill to effect a federal seizure of the medical sector.

Article I, Section 7 of the Constitution that Pelosi swore an oath to support and defend says this in defining how a bill may become law:

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 approves, 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. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

The language in this section is not cryptic and it is not flexible. To pass a bill into law, both houses of Congress must pass it. This has been an immutable truth questioned by no one – until Nancy Pelosi became Speaker of the House.

But Pelosi has another idea. She had her House Rules Committee chair Louise Slaughter concoct a legislative Frankenstein now being called the Slaughter Rule whereby the current 2,309-page Reconciliation Bill (see it in all its destructive glory by downloading this 3.26 MB PDF file), once scored, will be put to a vote in the House with the express understanding that if the Reconciliation Bill passes the Senate bill, which is a completely different animal, passes with it.

“Deem and pass” has been used before, but only as a time-saving measure on legislation which was headed for passage by wide margins. It has never been used to avoid a vote on divisive bills like Obamacare.

Pelosi doesn’t care. In a conference call with a group of left-wing bloggers covered by the Washington Post’s Ezra Klein, she touted the use of the Slaughter Rule – and then said once the (constitutional) door is kicked in there will be lots of other legislation in the pipeline.

Pelosi told the bloggers she favors using the “self-executing rule” strategy in which the House would pass the Senate health care bill without going on the record as specifically voting for it. “I like it,” Pelosi said of the scheme, “because people don’t have to vote on the Senate bill.” The strategy of passing the Senate bill while avoiding a direct vote, writes Klein, “is all about plausible deniability for House members who don’t want to vote for the Senate bill.”

Pelosi’s comment that the Slaughter Rule is preferable “because people don’t have to vote on the Senate bill” constitutes prima facie evidence of a breach of her oath of office. She is admitting here that she is consciously favoring an action which is unconstitutional, and as of right now it appears that she will proceed with that action.

The Heritage Foundation provides support of the constitutional issue by citing a Wall Street Journal piece by Michael McConnell, Director of the Stanford Constitutional Law Center at Stanford Law School and a former federal judge:

To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

So we have the Speaker of the House advocating a procedure which is unconstitutional, on the basis that it is politically expedient to subvert the requirements of the Constitution. As ignorance of the Constitution is no defense, it would appear that Pelosi is consciously violating her oath of office in pursuing the Slaughter Rule.

This isn’t an altogether bad thing, in that this overreach will almost immediately end up in court, on a fast track to a U.S. Supreme Court which will not be friendly to such machinations and as such Obamacare will in all likelihood be found unconstitutional in whole as a result of the procedure used to put it in place – and none of it will ever go into effect even if Pelosi does manage to drag its bloated carcass through the House of Representatives by whatever means she can.

Should that happen, however, and the Republicans manage to take control of the House of Representatives – which a great many observers are now finding to be likely if not inevitable at this point – one question should be whether Pelosi should be brought up on charges and either censured or even expelled. It takes a two-thirds vote to expel a House member, and that’s a tough row to hoe even for a new GOP majority. On the other hand, depending on the makeup of what’s left of the Democrat caucus in the House after the November elections it’s entirely possible that Pelosi’s popularity with those members might be at an extremely low ebb – after all, she will be blamed for the Democrats’ electoral holocaust in November when it comes and it’s entirely possible many Democrats won’t want her around. Besides, it only takes a majority vote to censure a House member, and the Republicans would have that number. Between the Slaughter Rule debacle and her unforgivable lies and calumnies against the CIA, sufficient justification certainly exists for that measure.

UPDATE: Tony Blankley at the Washington Times agrees:

It speaks to the sturdiness of the system our Founders installed that it is, as intended, so resistant to passing major legal and cultural changes against the overwhelming will of the public. It is so resistant that in frustration, the Democratic speaker of the House has been driven to consider breaking her oath of office and violating the Constitution in order to get her way. Presumably, when she is better counseled, she will dismiss this wayward idea.

Should she follow through on her threat, however, the product would not be a law, but a nullity – an aborted, inert thing.

It would be, in essence, an attempted congressional putsch against the Constitution.

But still our governing system would not be broken as long as the president did his constitutional duty – as assuredly he would – and neither signed nor vetoed it – but rather, publicly declared it a nullity, tore it up and burned it, as one would a piece of trash.

I refuse to conjecture on any alternative action by the president.

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Filed under: 2010 Elections, Congress, Corruption, Nancy Pelosi, Obamacare, The Constitution