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Constitutional Law 101
· Wednesday, March 17, 2010
The president and the Democratic congressional leadership are fighting furiously to pass, with no Republican votes, the ever-less-popular health bill. An Associated Press poll last week shows that four in five Americans don't want the Democrats to pass a health care bill without bipartisan support, while almost all polls are showing support for the current bill to be at only 25 percent to 35 percent. And all polls show high negative intensity.
The resistance of our governing system to passing so unpopular a bill is so powerful that it has driven Democratic Speaker of the House Nancy Pelosi and Democratic Chairwoman of the Rules Committee Louise Slaughter -- at least for the moment -- to actually publicly consider violating the constitutional process for enacting laws.
Under their announced scheme, instead of following the constitutional voting process -- i.e., 1) The House first votes for the despised Senate bill, then 2) after that is signed into law by the president and 3) the Senate passes the popular amendments that the House wants, 4) the House votes for that second Senate bill of amendments, which, 5) the President then signs into law -- under the proposed scheme, the Senate bill would be "deemed" to have passed the House and become law without a presidential signature. Then the Senate would pass the House-demanded amendments, and the House members would then cast only one vote -- for the amendments they like, rather than the underlying Senate bill they hate. Thus (so Pelosi's theory holds) politically protecting House members, who could say they never actually voted for the publicly despised Senate bill.
But, as has been pointed out in several venues in the last few days, Article 1 Section 7 of the U.S. Constitution requires that before a bill becomes law, (1) "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; If he approve he shall sign it, but if not he shall return it"; and, (2) "in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively."
It is those two provisions of the Constitution that would be evaded: 1) the House vote, with the names and votes of the individual members publicly published, and 2) the president's signature. That is James Madison's precise 18th century version of transparency and accountability.
The Supreme Court has only recently emphasized that those procedures must be followed precisely. In Clinton v. New York City, 1998, (In which the court found the line-item veto as passed by Congress unconstitutional), Justice Stevens wrote the majority opinion:
"The Balanced Budget Act of 1997 is a 500-page document that became 'Public Law 105-33' after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may 'become a law.'" Article I, Section 7.
And: "The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only 'be exercised in accord with a single, finely wrought and exhaustively considered, procedure.' Chadha, 462 U.S., at 951."
Some have argued that the "Gephardt Rule" (House Rule XXVII) -- in which a similar "self-executing rule" "deemed" the House to have voted on a new debt ceiling, is valid precedent. Wrong. That rule was for a joint resolution -- not a bill. A joint resolution is a guide to the House. It is not a bill under the Constitution and has no force of law. Because a president has nothing to do with a resolution, a self-executing rule is valid for a resolution, but not for a bill.
It speaks to the sturdiness of the system our founders installed that it is, as intended, so resistant to passing major legal and cultural changes against the overwhelming will of the public. So resistant that, in frustration, the Democratic speaker of the House has been driven to consider breaking her oath of office and violate the Constitution in order to get her way. Presumably, when she is better counseled, she will dismiss this wayward idea.
Should she follow through on her threat, however, the product would not be a law, but a nullity -- an aborted, inert thing.
It would be, in essence, an attempted congressional putsch against the Constitution.
But still our governing system would not be broken as long as the president would do his constitutional duty -- as assuredly he would -- and neither sign nor veto it, but rather, publicly declare it a nullity, tear it up and burn it, as one would a piece of trash.
I refuse to conjecture on any alternative action by the president.
In other news, the White House spokesman last week engaged in an indecorous public exchange with the Chief Justice of the Supreme Court.
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Frank E. Waterstraat
03/16/10
When AMERICA has a Born MUSLIM and schooled as a
MUSLIM who HATES the AMERICAN WAY of LIFE,He has
VIOLATED the OATH of the OFFICE he sits in.OBAMA
has complete disregard for our constitution and
the people he is suppose to represent.We have
already been INVADED by the MUSLIM TERRORIST.He is
bankrupting the NATION.What else can he do that a
MUSLIM TERRORIST would do."WAKE UP PEOPLE"!
Posted March 17, 2010 at 3:47:47 AM
martin mayer
As much as I commend and praise the work of the Patriot Post. It is still a quiet voice. It is the same 30-40 folks posting and responding.
It should be 30,000 -40,0000 posts responses every day. We got a Nation of many Millions but the conservative majority is still the silent majority. I don't know what else it takes to wake them up! Go to your neighbors door, tell your buddies at the bar, at work and tell them to do the same. get together with friends..buy a Bill board and print your disgust and frustration forn everyone to see.
Maybe We need to get a few bill boards for Patriot Post out there as well.. they are not that expensive you know...
Posted March 17, 2010 at 6:39:46 AM
Ileana
People are not waking up fast enough. There were only a few hundred protesters yesterday in Washinngton against the insurance industry takeover.
"Free" healthcare comes with a very, very heavy price. Have you read the bill? Not many people did, even those whose job it is to do so.
Why are our Congresspersons voting so hurriedly to amend a law that does not exist, it has not been written yet, it has not beeen passed yet by both houses, and it has not been signed by the CIC?
If the bill is so good and all Americans want it, why must be done unilaterally (democrats), immediately, illegally, and behind closed doors? Especially since it is so expensive and cheaper alternatives of health reform exist? What is the ulterior motive?
Posted March 17, 2010 at 7:47:18 AM
Hugh Davis
So if they violate the constitution, can we have them prosecuted for treason?
Posted March 17, 2010 at 10:41:56 AM
Anton D Rehling
The government ignores our protest concerning their unconstitutional legislation and they are acting more and more like a gangster government, we are tired of kicking a dead dog. Our silence is inspired by government contempt for their oath and following the rule of law, our voices of protest fall on deaf ears. Our government does not care about their constitutional responsibility nor do they care about the wishes of those they represent. We are on the fence and only need a little more push to show up with our pitch forks.
Posted March 17, 2010 at 11:03:59 AM
Red Ruffansore
All it will take is one spark and the Obamaclown will burn down his own house. He'll never put it out. Keep pushing Obamaclown and your circus will be leaving town sans the big tent.
Posted March 17, 2010 at 12:55:16 PM
2Airmensdad
These are High Crimes & Misdemeanors, violations of the oath to "uphold and defend the Constitution". These are indeed impeachable offenses but with the courts packed with limp wristed judges, who will bring them to the bar? Maybe it is time for a Mexican election. Remember what happened in Romainia?
Posted March 17, 2010 at 2:33:28 PM
jimgotdemsundermyskin
Let the Dems pass it, then as Hugh Davis says above, try them all for treason.
Posted March 17, 2010 at 2:59:31 PM
Howard Last
Did anyone say what would our Founding Fathers do if the health bill is pushed through in violation of the Constitution? A better question is, would the Founding Fathers have started shooting already?
Posted March 17, 2010 at 5:44:45 PM
DomM
Did it ever occur to anyone that there is no penalty for betrayal of the oath of office? Of what use is this supposed "oath". For none who take it and then discard it are prosecuted. What would be the charge? Who will prosecute the offenders if the legal authority was the offender as it is before us now?
To protect and defend the constitution against all enemies, foreign and domestic. I took that oath and I never betrayed it. Do the politicians care anymore?? I hardly think so. Lies, treachery, deceit and betrayal are now commonplace.
Are we so complacent in our lives that we accept our doom without a whimper? Have our children been allowed to drug themselves into mindless stupors because our legal system sides with the drug lords. The penalty for drugs must be death.
Our police protect the law, but not the law abiding. Our courts protect the criminals. Our politicians protect the terrorist. Are you sensing a pattern yet?
There is no fate but what we make.
Posted March 18, 2010 at 8:44:45 AM
Frank E. Waterstraat
03/18/10
The PARTY of TREASON now in control,Their COMMENTS
are understandable,Their ACTS are BRIEF,OBSCENE,
ABUSIVE and OFF-TOPIC from our CONSTITUTION and
the RULE of LAW.THE PARTY of TREASON in {CONGRESS &
SENATE}have given a LEGAL AUTHORITY and ALL the
evidence needed to stop this RAPE of AMERICA!!!
Posted March 18, 2010 at 9:46:49 PM
Charles Weinberg
On December 7, 1941, I remember coming home from church and as we usually did, while my mother prepared dinner, we turned on the radio to listen to our regular programs. But everything was just news—news that Japan had attacked Pearl Harbor! Now at seven years old, I did not totally grasp just what it all meant. But as the days passed, and it seemed that all the news was bad from Europe as well as the Pacific, I had the feeling that the “lights were going out” all over the world. Even as a seven year old, it just felt like darkness was encompassing us.
Now that I am 69 years older, I feel that same old feeling, not because of the enemy from without, but from the enemy within. Last night—again on a Sunday—our freedoms were attacked. The difference is that the attack was made by those who have sworn to uphold the Constitution—not by some foreign power.
This most recent attack—the passage of Health Care—had its origins over a century ago when those who called themselves “progressives” begin to write and influence the direction this country was to take. It wasn’t confined to one Party, but was espoused by Presidents Theodore Roosevelt and Woodrow Wilson. The idea that was planted was that the Constitution was not to be thought of as a restraint on government. The restrictions on the federal government, especially the Tenth Amendment of the Bill of Rights, would be circumvented through gradual erosion. In other words, the whole meaning of what the framers of the Constitution intended would evolve. The Constitution was to be a “living” document that took on new meaning as times changed.
The attack on Pearl Harbor over 69 years ago brought a massive response as the nation rallied to the defense of our country. Today, the nation is not united in fighting this new threat. In fact, many do not understand that it is a threat. However, if those who see the danger will stand up and speak out, a difference will be made. We need to do our utmost to have real conservatives run in the primaries. By conservatives, I mean those who primarily hold to a view of strict Constitutional adherence. They should hold to limited government, a reduction in the size of government, a strong national defense, lower taxes, strict enforcement of legal immigration, and adherence to the Tenth Amendment, etc.
Today we need statesmen, not politicians. We need people in office that are more concerned about their country than they are about doing things that will insure they are elected again.
Posted March 22, 2010 at 1:14:28 PM