Slaughter Solution Will Be Challenged
Mark Levin’s Legal Landmark Foundation has announced that they will file an appeal to the Democrats’ health care bill the minute President Obama signs it into law, if it gets that far. On a similar front, Megyn Kelly interviewed Michael McConnell, formerly a judge on the 10th Circuit Court of Appeals and now a constitutional law professor at Stanford. Here’s the partial transcript of the Kelly-McConnell interview:
MCCONNELL: Well that’s right because Article I, Section VII of the Constitution lays out a procedure by which legislation has to be passed. And it requires that both houses of Congress, both the Senate and the House, seperately pass any piece of legislation before it goes to the president for his signature.
And along the way, Article I, Section V then further specifies that, upon the demand of one-fifth of the members of the House or the Senate, that the yeas and the nays must be recorded on the journal. The purpose of these provisions is to make sure that, when our senators and representatives are voting on the people’s business, that they do so on the record and that their constituents can later see what they’ve done.
Think of that part of the transcript as the foundation for discussing the constitutionality of the rule. Here’s the part of the transcript that deals with what’s specifically required for constitutional passage of a bill:
MCCONNELL: The Supreme Court has been quite clear and consistent that in order to comply with Article I, Section VII, the exact same text of a bill has to be passed by both the House and the Senate. Now as I understand this procedure, the idea is that the House would take the Senate version of the bill, and not actually voting on it, would deem it passed by virtue of passing a vote adopting seperate legislation which amends the bill in order to eliminate all those special deals and so forth.
Here’s what Levin told his radio audience:
“I cannot predict if we would win or lose; this is not as simple as some would have you believe, but I want to put the marker down right now and make it clear to members of the House of Representatives who think the quickest way to pass this is to adopt a rule that assumes that they voted on an underlying bill when they didn’t, that is going to be challenged if they do it,” Levin said on his nationally syndicated radio show Tuesday evening.
“What I’m trying to do, though, is make it very clear to those Democrats who are on the fence, and who think that this somehow is going to protect them, that it won’t because we’re going to expose you,” Levin said.
McConnell’s explanation is exceptional, untangling a tangled mess by explaining it in layman’s terms. What he’s saying is that the Slaughter Solution isn’t constitutional because the Constitution requires that the exact same bill with the exact same language be voted on and passed by both the House and the Senate. In Judge McConnell’s opinion, the Slaughter rule wouldn’t meet those requirements because the House would vote on a seperate bill that corrects the bill the House refuses to vote on.
One never knows for certain how Anthony Kennedy will vote but the other justices are totally predictable.
Judge Napolitano was on Cavuto this afternoon. He said that there’s no question that the “deem and pass” rule is unconstitutional. He then said that it isn’t likely that the Supreme Court isn’t likely to undo the bill because of this tactic. That’s a direct contradiction to what Judge McConnell said here:
The Supreme Court has been quite clear and consistent that in order to comply with Article I, Section VII, the exact same text of a bill has to be passed by both the House and the Senate.
It appears as though Judge McConnell based his opinion on court precedent. Otherwise, how could he say that the Supreme Court has been clear and consistent in its rulings?
I’m not judging the outcome because SCOTUS has gotten things wrong in the past and there is a certain level of uncertainty with any jury, whether that jury is made of 12 citizens or 9 people in black robes. I’m just saying that I believe Judge McConnell more than Judge Napolitano in this instance because he apparently is basing his opinion on Supreme Court precedents.
What isn’t said in all of this is that this is only the tip of the proverbial iceberg in terms of constitutional challenges. That alone is enough to throw a wrench into Jim Clyburn’s whip count. That’s before we start talking about how the CBO numbers will impact whether they can use reconciliation. That’s way before talking about Bart Stupak, who told Megyn Kelly that there are people on his list that Rep. Clyburn doesn’t know are part of his group.
If I were forced to guess, I’d guess that the Democrats’ bill won’t pass but it’s nothing more than a guess.
Technorati Tags: Interview, Megyn Kelly, Michael McConnell, Mark Levin, Andrew Napolitano, Slaughter Solution, SCOTUS, Constitution, Louise Slaughter, James Clyburn, Bart Stupak, Democrats
Cross-posted at LetFreedomRingBlog