The Slaughter Solution Will Probably Pass Constitutional Muster

Gabe laid out the procedures involved in the Slaughter Solution and former Judge Michael McConnell's argument for it's unconstitutionality. While I, and I think most sane people, agree with McConnell, sanity is a relative term when it comes to the law.

Shannen Coffin makes the case for why it's going to be very hard, if not impossible, to get a court to overturn the bill based on a challenge to the Slaughter Solution.

The short version is, courts don't do legislative sausage making. If the Speaker of the House, the President Pro-tempore of the Senate and the President say it was passed and signed properly, the courts generally take their word for it.

The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn't affected by that later decision.

Look at what the Constitution actually says about the passage of bills

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;

Article I, Section 7 goes on about vetoes and overrides but that's the heart of the matter. Notice it doesn't say what 'passed' means. We all assume it means a vote where the majority of members vote yes but that's not actually stated. What it takes to pass a bill is left up the rules of each house and courts aren't likely to get involved in that.

There are a lot of things we take for granted, as being understood and inviolable rules but the reality is democracy requires a respect for institutions, customs and shared understandings. There's no force of nature that ensures democratic norms are followed. The checks and balances of our system help but ultimately it comes down to the willingness of individuals to be bound by them. Get enough people in power agreeing to push past those boundaries and bad things can happen.

The Democrats know this Slaughter Solution won't shield members from the wrath of the electorate, it's likely to increase the anger. This isn't some legislative trick played in the middle of the night on a bill no one has ever heard of. Voters are going to want to know how their representatives voted on 'health care reform', not the 'rule under which the Senate sidecar reconciliation bill' passed. This is not a vote anyone can hide from, it's a bottom line deal...did you vote to screw things up or not? That's what will matter.

By this maneuver the Democrats are showing that they hold the customs of consensual democracy in contempt. While the institutions of government may not be enough to constrain these bastards, there is still one final court of appeal and that's the voters.

Hardcore liberals in the Democratic leadership just don't care about the consequences or what people want or don't want. This is their Holy Grail and they know once they shove it down our throats it's not going to be undone.

There's something fundamentally very ugly and dangerous when elected representatives don't respect the voters or at the least fear them.

Related: House Republicans are going to try and force Democrats to hold an up or down vote on the Senate bill or at least go on record as saying they won't.

Nancy gets a Yes vote to stay Yes.

Added... A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we've got her on hypocrisy. Bad news, she lost the court challenge.

posted by DrewM. at 11:56 AM

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