When Congress Cheats On Its Rules
Posted by John Armor on Mar 21, 2010 - 10:12:24 AM
WASHINGTON D.C.—We are apparently at
crunch point on the efforts of President Obama, Speaker Pelosi in the
House and Majority Leader Reid in the Senate to pass by whatever means
necessary the "health reform" bill. In the national debate, however, no
one has asked whether the Supreme Court has any role in this matter. It
does, and it may be definitive.
There is a question of what the bill is, since there
are many versions, and several are under wraps. The opponents of the
bill, whatever it is, include Democrats and Republicans who believe
that the bill is an ill-thought takeover of one sixth of the national
economy that will increase the cost of medical care, decrease its
quality and severely damage the national economy.
But this column is not about the merits or demerits
of whatever is in the bill. It is about the methods being used to push
it through Congress and the consequences of ways of getting around
normal, legislative passage (Article I, Section 7, US Constitution).
At this point, it looks like the House will use the
Slaughter Rule to "pass" it through the House without ever having a
vote on it. The about-to-be-invented Rule is named for the
Congresswomen who is the Chair of the Rules Committee and came up with
Provided that the House passes the bill, then the
Senate is expected to pass it by majority rule under "reconciliation."
This is a known process under a Rule proposed by the Dean of the
Senate, Robert Byrd, in the mid-'80s. It was developed to prevent
budget bills for spending from being tied up by filibusters in the
Senate. It does provide for passage in the Senate by majority vote.
However, it also provides that any provision which is
not primarily budgetary cannot be included unless it is approved by
three fifths of the Senate. That works out to 60 votes, the same as the
filibuster rule itself.
Well then, who is it that decides whether a given
provision in the bill is budgetary, or not? That would be the
Parliamentarian of the Senate. When such arcane questions arise in the
Senate, the Parliamentarian is asked to give his opinion. But then, the
person in the Chair, the Vice President unless he has given up the
Chair to someone else, issues the final ruling.
Even then, the process is not quite done. Any Senator
can appeal the ruling of the Chair. The body then votes by a majority
to uphold or reject the ruling of Chair. So let us assume that Vice
President Biden is in the Chair and he rejects the opinion of the
Parliamentarian, and a simple majority of the Senate goes along with
that. Then the bill containing whatever, and bearing the title of
"Heath Care Reform" will go to the President for his signature. Is that
the end of road?
Under normal circumstances, courts will not interfere
with the decisions of a House of Congress, or a house of a state
legislature, when it concerns the internal rules of that house. Most
state constitutions, like the US Constitution, give explicit authority
for houses of the legislature to adopt and apply their own operating
rules. But like all other rules of conduct, this one of forbearance of
courts from legislative rules has its exception.
Does anyone remember Adam Clayton Powell, Jr,? He was
a corrupt, Democrat Member of the House from Harlem in New York City.
He was regularly reelected by wide margins, but because of legal
complications in New York, he was subject to arrest if he set foot in
his District, any day except Sundays. So, he would preach in the
Abyssinian Baptist Church, and spend the balance of the week either in
Washington, or Bimini.
In short, he was a disgrace. So, in 1966, after he was reelected, the House simply
refused to seat him. Powell then sued, because the House had not
followed its own rules. In Powell v. McCormack in 1969, the Supreme
Court ruled that the House had not followed its own rules. It ordered
the House to seat Powell, and then expel him by the specified
two-thirds vote, if they so choose.
So, there is a role for the Supreme Court when the
Houses of Congress flagrantly and critically break their own rules. The
Court can, should, and probably will throw out as unconstitutional—for breaking their own rules— whatever "health care reform" bill
Congress purports to pass, by cheating.
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