Category: Government

Looks like Fishermen are getting abused by the Administration just as we thought gun owners would. There’s even media apologists saying that the fishermen and their representative groups are nuts. Obama just wouldn’t do that, you see? Because he’s a smart politician. Sorry, not buying it. Barry is about the most incompetent politician I’ve seen in a while. The guy can give a rousing speech off a teleprompter, and that’s about the extent of his political talent. He definitely has people in his Administration who would like to end or severely restrict recreational fishing. Unfortunately for fishermen, most aren’t as involved with their issue politically as are gun owners and hunters. That’s a shame too, because they have pretty substantial numbers. If I were Obama, it’s not a sleeping giant I want to risk awakening, given that he’s been kicking more than a few others lately. If he’s really not intending to restrict or ban fishing, he needs to get control of his bureaucracy and put a stop to this. I wouldn’t hold my breath, however.

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.