Snowflakes in Hell

There’s been some more activity today on the issue of whether the Slaughter Rule for passing Health Care would be constitutional.  Michael McConnell says it’s not constitutional in an op-ed in the Wall Street Journal, via Jonathan Adler of the Volokh Conspiracy. Based on this reading, which would indicate the House and Senate never actually plan to pass the same bill, I would agree it’s unconstitutional. I would think there has to be limits to House and Senate rules in so far as they aren’t delegating their role to the other body. For instance, if they create a rule that deems two bills to be passed with one vote, why not three? Four? Twelve? Certainly they can consolidate twelve bills into one bill, but can the House or Senate really have a rule that just deems any number of bills as “passed” even if there’s never been a vote? I think the answer to that has to be no, at least if the Constitutional role each body plays isn’t considered to be unconstitutionally delegated.

You really couldn’t come up with a better name for the latest scheme the Democrats have come up with to pass health care. Absent the votes to actually pass this monstrosity, we’ll just slaughter the Republic and the Constitution and ram it through! But there seems to be some debate as to whether this mess is constitutional. Here are some thoughts on the matter, keeping in mind I’m far from an expert on these topics.

It would seems to me to be perfectly constitutional for the House to amend the Senate version, then send it back to the Senate, which the Senate will then pass and go on to the President. This path, however is closed by rule, since it would require 60 votes in the Senate to shut off debate on the bill, which the Democrats no longer have (thank you Massachusetts!). There’s also the political problem that Pelosi would no longer appear to have the votes necessary to pass anything called “Health Care” in the House.

My understanding of the Slaughter Solution is that they pass a reconciliation bill, along with a rule change that deems the Senate version to have been passed (even though it has not). The reconciliation bill then goes to the Senate under reconciliation rules, under which the terms of debate do not allow for the filibuster. The reconciliation bill, being signed by the President, then becomes the Health Care law. Now, there seems to be some question on whether, after the reconciliation bill passes the Senate, the House will then actually have a vote on the Senate bill, and if passed, both bills will be presented to the President for his signature or veto.

It would seem to me any law which is presented to Obama, not having passed both houses of Congress, would be pretty clearly unconstitutional. But is it judicable? In other words, can someone file suit. I think that yes, a minority of members of Congress could sue because they were denied their constitutional power to request a roll call vote. This is pretty explicitly in the constitution, and it would seem to be to be fairly unambiguous that this path would be unconstitutional, and the minority would have a means for invalidating the bill. The only counter argument I could see here is that, effectively, the House combined several questions into one vote, which is should be permitted to do if the House rules allow it. But how far would this be allowed to go? What if the House changed its rules to say any bill which the Senate passes in a given session will be “deemed” to have pass? It would seem to me there also might be questions that could be raised under the Non-Delegation Doctrine as well.

The latter case, where the House moves a reconciliation bill forward, under a rule that deems the Senate version to have passed the House, but with the Senate version later being actually voted on by the House and both bills being presented to the President simultaneously is a bit more constitutionally ambiguous. There’s a better case that this is constitutional., since the House and Senate will have, effectively, passed two bills, and presented both to the President. The “deeming” of the Senate bill being passed, in this instance, would merely be a procedural maneuver that would allow the Senate to use the reconciliation rules to get the fixes some House members are demanding before they’ll flip their vote. It’s my opinion that if this is the plan, it’s likely constitutional. The question is whether it violates the reconciliation rules. Reconciliation rules require that you change a budgetary matter that is actually existing law. It would seem to me that this Slaughter rule wouldn’t really get around that. They’d essentially be changing budgetary issues that don’t effectively exist. The House passing a rule that “deems” a bill to be passed does not actually make it so.

Either way you go, this tactic is a disgusting abuse of procedure and an affront to the democratic process. It’s hard for me to understand how it’s legal under either path. I definitely don’t see how the House gets around having to vote for the Senate bill. It would seem to me you can’t pass two bills with one vote because of the Article 1 Section 5 requirements in the constitution. If anyone out there has any specific expertise on this topic (and after reading the actual rules, if you do, I have a huge amount of respect for you, these rules are complicated) feel free to chime in with comments.

I think any American, no matter how they feel about health care, ought to be outraged by this tactic. Dave Kopel asks whether it’s even Constitutional.

Orin Kerr I think sums it up nicely over at Volokh, as to why it’s going to be very difficult to get justices to revive key constitutional principles because they are more academically correct:

My point is only that it’s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices we’re likely to get are likely to be more practical people than constitutional theorists. So if you’re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.

It’s often heard that the founders intended to put certain rights beyond the political process when they enacted the Bill of Rights. But really, all rights are subject to politics over the long haul. The genius in our system is that it takes a sustained shift in constitutional thinking, over a long period of time, in order for new ideas and interpretations to work their way into our courts. Perhaps someday, if the population is committed to electing politicians that demand justices right what was wrong, we’ll get Privileges or Immunities restored to its rightful place, but not now.

Ultimately our rights are subject to the political process. That might not be ideal in abstract theory, when in practical implementation of a government, I’m not sure how you make a system that works better than what we have now. Ultimately the Second Amendment and Fourteenth Amendment are fading ink on pieces of parchment. At the end of the day, what those word mean as a matter of law is entirely up to we the people.

Thomas Sowell has an excellent interview here discussing why it’s dangerous to put intellectuals in charge of everything. This is truth. I’ve often heard people decry the influence of lobbyists in Washington. I don’t. The lobbyists are the only ones who know how anything works. If you took the lobbyists out of the equation this country would be run by dimwitted politicians with delusions of grandeur, and overeducated twenty something staffers who think they know a lot more than they really do.

Earlier today I heard a rumor that Roberts was stepping down as Chief Justice for “personal reasons.” It turns out that the rumor was false. Thank God for us, because we’d be utterly fscked if that were the case. They all have to stay on/alive for the next few months. Let’s not have any unexpected resignations or deaths. I heard that Scalia is a smoker. Please Justice Scalia, try some of this.

From Diomed, in the comments:

Yes. They’re there to say “no”, not to help you. Victory is figuring out a way to do something they can’t say no to.

This is truth.

Maybe I shouldn’t feel too bad about not checking a gun when I went to serve today.

Freedom of the press is not absolute. Professional journalists generally know their limits. Apparently the guys behind the ACORN sting operation didn’t, and are now facing felony charges.

The FBI, alleging a plot to wiretap Democratic Sen. Mary Landrieu’s office in downtown New Orleans, arrested four people Monday, including James O’Keefe, a conservative filmmaker whose undercover videos at ACORN field offices severely damaged the advocacy group’s credibility.

FBI Special Agent Steven Rayes alleges that O’Keefe aided and abetted two others, Joseph Basel and Robert Flanagan, who dressed up as employees of a telephone company and attempted to interfere with the office’s telephone system.

A fourth person, Stan Dai, was accused of aiding and abetting Basel and Flanagan. All four were charged with entering fedral property under false pretenses with the intent of committing a felony.

While I’m sure Landrieu has skeletons in her closet she’d not like seeing the light of day, there are good reasons why it’s unlawful to tap a Senator’s phone or bug an office. Senators, particularly those who sit on some key oversight committees, have access to information that’s sensitive for national security purposes. O’Keefe did good work taking down ACORN, but he went too far here. He’ll be lucky if he beats a felony rap on this one.

The nanny staters are coming for you next.

Dave Kopel is talking about the executive order Obama signed, giving Interpol some added immunities, and also says it’s no big deal. It’s a pretty thorough article that gives a good background.

Given that people seemed to like our Gun Nut Merry Christmas tree, I figured I’d post a few more photos snapped of it before the ornaments came off.

Now it’s onto a secret conference committee, which has already been rigged by Pelosi and Reid. There’s still a chance to stop this. Whether you’re a progressive, and believe in universal health care, or a conservative who hates the idea, I think both sides can agree this health bill is total special interest laden garbage. Call your reps and Senators and tell them to vote no on the conference report.

You know you’re a gun nut when you decide to decorate your tree in the theme of the federal agency we all love to hate. I bring you, the ATF themed Christmas tree:

The real fun will be drinking the tree when we’re all done.

Bruce responds to the notion floating around the lefty blogosphere that the country is ungovernable:

A country founded on the principles of economic freedom and individual liberty, and populated with people who believe in such things should be ungovernable by a devoted disciple of Karl Marx, raised on the tenets of radical leftism, with the raw sewage of Chicago thug politics flowing in his veins, and who finds such principles offensive and considers them an obstacle to power.

This “ungovernability” of which he speaks is a feature, not a bug.

Yep, which is why our founding fathers gave us a federal government of limited and enumerated powers. Obama and the Democrats are figuring out what our founding fathers knew 220 years ago: that that the country was too large and diverse to be controlled by an all powerful national government. If the political class feels like the country is ungovernable, that means the federal government is doing too much. Let’s get back to the original vision, and if someone wants to live in a lefty paradise, there’s always California.

I’m going to guess the Director of Industry Operations at the Houston ATF field office won’t be advancing much in his career. This would be ATF compliance division rather than enforcement, I guess depending on which side of the plywood you’re on.

I’m not sure how we’re supposed to believe the government can cut health care costs when they can’t even make money off sex and gambling. The closest we ever came in Pennsylvania to abolishing the state liquor and wine monopoly was during a period that they were losing money. It takes effort to be able to lose money selling vices, but the government is awful good at losing money, it seems.

Forget a rush to buy Christmas gifts, most folks I know in DC just started a bustling holiday season today because of Obama’s latest stunt. As summed up by a friend this morning:

Looks like Obama has decided to make today his own day that will live in infamy with the most destructive attack on the US economy ever, scheduled for launching at 1:15 pm.

Between this, health care, and all the other crap he’s pushing, can anyone on the left try to make the argument that this administration isn’t actively trying to make the economy worse?

Of course, I also view this as a warning for gun owners. How so? Consider this statement from the WSJ:

An “endangerment” finding by the Environmental Protection Agency could pave the way for the government to require businesses that emit carbon dioxide and five other greenhouse gases to make costly changes in machinery to reduce emissions — even if Congress doesn’t pass pending climate-change legislation. EPA action to regulate emissions could affect the U.S. economy more directly, and more quickly, than any global deal inked in the Danish capital, where no binding agreement is expected.

This administration has realized that it doesn’t need Congress to act on every major issue. He’ll need to go to Congress on some things, but not for many damaging policies. It can be the same way with the gun issue. He won’t have to worry about moderate Democrats casting votes. In fact, he won’t have to answer to Congress at all. Congress authorized these agencies to enact regulations long ago, so the Obama team is simply taking advantage of it.

So far, the Obama team has been hesitant to pick a fight on guns. However, if he decides to do it, know that those working for him have realized that they can use their regulatory authority to come after us without the messy fight & political accountability in Congress.

Looks like my number came up, and I will be serving in the beginning of February. This is one of those unfortunate things, but I do consider it a civic duty, so I will go without complaint. They will never pick me anyway, at least not for any lengthy or infamous trial, due to the fact that any jury consultant worth his salt will quickly peg me as someone who will hold the state to its burden on proof, and I don’t think any prosecuting attorney will stand for it. They’d probably also be rather appalled that I believe in jury nullification under some, limited circumstances, but that’s not something I think I’ve discussed under my real name.

Via Glenn, I read an article about boomerang kids, and how the economy is affecting young people. Neither Bitter nor I are boomerang kids, but Bitter moved up here partly due to the job situation, and we’re certainly putting off marriage because of the poor economy. Because we’re putting off marriage, child rearing isn’t even really on the radar right now, and I’m not exactly a spring chicken. If the economy doesn’t improve in the next few years, having kids will hinge upon whether or not I want to put a child through college in my 60s. If social conservatives are serious about promoting “family values” they can start by joining us in restraining the Leviathan that our federal government is turning into, which is infecting and sucking the life out of not only our economy, but our private lives. No matter how you look at it, it takes money to start a family, and everywhere I look I see the government looking for ways to make sure I have less of it. That’s not promoting family values, that’s destroying it. It’s doing more to harm the institution of marriage and family far more than any gay wedding ever could. Social conservatives need to start reexamining their demons if they are serious about promoting marriage and family life.

Orin Kerr over at the Volokh Conspiracy takes a negative view of briefs filed at the Supreme Court by legislators:

Amicus briefs written on behalf of sitting legislators strike me as inappropriate. Of course, legislators can influence the judicial process in many ways. They write the legislation that the courts interpret; they control the rules that govern judicial hearings; they can control much of the Court’s docket; and they even control how many Justices are on the Supreme Court. Further, legislators take an oath to uphold the Constitution, and they have an independent (albeit sporadically exercised) duty to ensure that legislation they enact passes constitutional muster.

From a theoretical point of view, I can understand where Professor Kerr is coming from here. But I am not a law professor. I’m a Second Amendment activist, and from my point of view, as long as the courts take an attitude of deference to the elected branches, I have no problems with the elected branches demonstrating for the Court that they have a preference for a certain outcome in a particular case or controversy, especially when such an important and key constitutional issue is at question, such as the case with McDonald. In an ideal world, the Supreme Court would decide cases based solely on what the law and constitution says, and the elected branches would stay out. But we do not live in that ideal world.

This is tongue and cheek, and I think meant to make people think about health insurance mandates, but I would be against compulsory gun ownership just as much as I am against compulsory health insurance.

But I would point out that at least with compulsory gun ownership, Congress could claim it’s a legitimate exercise of its military powers. Under what enumerated power can they claim I must buy health insurance or face jail time?

Tom Coburn is threatening to read the Health Care Bill before the Senate. I’d be tempted to cheer him on, but what have we come to when reading the bill is considered a threat?

“Did you hear? Coburn is going to read the bill?”

“Read the bill? Dear God! That’ll ruin everything!”

“Surely there’s got to be a way to stop him?”

We are so screwed.

Pelosi barely did it. Only one Republican voted for it. We have to stop this in the Senate now.

The GOP is running a pretty good ad against Pelosicare. Interesting though, it’s not really an exaggeration. Loading her bill in Safari made me have to restart, after it choked on the sheer size of it: