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March 16, 2010

DemonPass Would Probably Be Found Unconstitutional

I disagree with DrewM, who wrote below that despite how bad DemonPass stinks, the Court would probably allow it, as they've rejected objections to this procedure in the past.

First of all, it has to be noted that the Court declined to rule, not that they actually blessed the procedure. They refused to rule because of the Political Questions Doctrine, which keeps the Court (sometimes) from interfering in the constitutional duties of its coequal branches.

This is a prudential consideration -- i.e., sure, this thing stinks on ice, but wouldn't it be worse for the Constitution if the Court stepped in and began micromanaging procedure in a coequal branch of government?

Such prudential concerns are important, but they do have their limits.

For example: Suppose that the the House passes a bill. But Nancy Pelosi doesn't like it, and substitutes her own version with some editing for the bill actually passed. She then presents this to the President for signature (after the Senate passes it).

Now, this is blatantly unconstitutional -- she just slipped a law to the President without a vote on it at all; it's merely what she alone wants -- but she's entrusted to do this presentation business and she claims it was passed.

Now if the House doesn't have some way to thwart her here -- if they cannot rouse some sort of vote to stop this -- is it really true that even in this case the Court would say "It is not for us to decide how the House manages its affairs?"

I doubt it. There is a limit to how much restraint prudence dictates you show in the face of constitutional lawlessness.

Now, in the present case, the situation is not quite as extreme. However, in the past, the self-executing "demonpass" dodge was used with regard to legislation that was going to pass anyway; Congress concocted itself a trivial dodge so they could say they hadn't voted to raise the debt ceiling. But if that dodge had not been available, they would have voted for it.

In such circumstances, the Court can show a bit of restraint and say, basically, "No harm, no foul," and show the restraint they prefer to show in keeping out of Congress' internal affairs.

But what about when the measure would not have passed otherwise? What happens when Congress is attempting to "pass" a bill which does not in fact have enough votes to pass at all? Does the Court continue showing this forbearance and ultimately bless as constitutional a blatantly unconstitutional (and undemocratic) trick?

In one case showing a bit of prudential restraint is cost-free as Congress was going to pass the law anyway; the Court was merely quibbling over the procedure used to pass it. There was little doubt that the substance of the law would be passed one way or another. In that case, the Court could rightly decide that their interest in the ticky-tack specifics of procedure was easily outweighed by the need to defer to a coequal branch.

In the present case, though? I don't think that weighing favors allowing this to stand.

Andy McCarthy makes a ballpark-similar sort of argument at NRO.

Commenters at Hot Air also note that in the case considered by the Court, the House and Senate bills were actually identical. That has big implications for this case, because the Democrats are basically attempting to "pass" a law by not passing it at all, and furthermore, trying to "pass" it as identical to the Senate bill (so that reconciliation may be used) but also passing a very not-identical list of changes to the very bill they are claiming is being passed identical to the Senate's.

For the Court, that might be one unconstitutional dodge too many.

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posted by Ace at 04:30 PM

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