Thursday, March 18, 2010

“Scheme & Deem” and Other Democrat Health Care Offenses

We Americans are witnessing an extraordinary grand political passion play unfold before our eyes, beyond our imagination, as the senior leaders of the national Democrat party, supported by the majority of its Congressional delegation, are attempting to muster support for an unpopular health care bill through means ethically offensive, patently deceitful, and arguably unconstitutional.

It has long been clear to the sentient that by all of their actions but by only a few of their words, the intellectual vanguard of the Democrat party consists of committed believers in European-style socialism focused on the outward appearance of economic equality, a race- and gender-driven political spoils system (“social justice”), self-loathing over perceived past white wrongdoing (global “imperialism”), and the gradual replacement of the rule of law by the rule of unelected elites through the “legal” theory of the Living Constitution (in which liberals fool the hoi polloi by pretending to base their redistributive, “social justice” decisions on the actual rule of law). But I don’t think in my lifetime there has ever been such a public, naked display of contempt for our established rules of democratic government. The Democrat leaders are saying that their bill will be a good thing for Americans, and it doesn’t at all matter that a majority of Americans don’t want it, and if the rules of American government have to be subverted in order to achieve their end, so be it.

Yesterday Fox News interviewed Barack Obama, and among other things he was dismissive of concern about the process being discussed that the Democrats might use to claim passage of their health care bill, saying “I don't spend a lot of time worrying about what the procedural rules are in the House or the Senate.” This has to be one of the most astounding statements in the history of our Republic. The President of the United States expresses unconcern about the validity, the constitutionality, of the process by which his signature plan, Obamacare, might be enacted.

Ann Althouse, a law professor at the University of Wisconsin, in a post today (link) expressed so well the horror any lover of the rule of law should feel at Obama’s remarkable statement:
As if procedure is a frivolous sidetrack that only trivial or devious people care about. Barack Obama was a constitutional law professor. Much of constitutional law is about procedural rights and structural safeguards that check power. Justice Felix Frankfurter famously wrote: "The history of American freedom is, in no small measure, the history of procedure." Law professors are seriously engaging with the constitutionality of the "deem and pass," and our erstwhile law professor Barack Obama would imperiously wave procedure aside as a distraction not worthy of his time. Let's concentrate on the end and pay no attention to the means. When the most powerful man in the world says that, we should feel revulsion and alarm.
And so I have documented the crazy, alarming process the Democrats are about to begin for my own personal later reference, since years from now, long after Americans have thrown all these dangerous bums out of office, I think I might scarcely believe it all. It is frightening, and profoundly embarrassing, to me to recognize that what follows might happen for real in America and not in some piece of fiction.

1. Senate Democrats have already passed their version of health care (HC) “reform” – the “Senate” bill. Democrats won a vote to bring the bill to a floor vote 60-39, with all 58 Dems and the two independents (de facto Democrats) voting for cloture; the bill itself passed by majority vote. No Republicans voted either to end debate on the bill or for the bill itself.

2. House Democrats have already passed their version of HC “reform” – the “House” bill. It passed 220-215, with one lone Republican vote, Chao of LA (who now says he will vote against the Senate bill if and when it comes to a House vote).

3. The two bills differ significantly in certain particulars. For example: the House bill exempts unions from higher taxes on “Cadillac” health care benefit plans (which many union members have), a feature lacking in the Senate bill; the Senate bill has all the ugly special “bribes” that were needed to secure specific votes, such as the “Cornhusker Kickback”, the “Louisiana Purchase”, and “Gator Aid” (which exempts Florida, where the Medicare Advantage plan is popular, from the general gutting of Medicare Advantage in the Senate bill); and significantly, the Senate bill has language that is seen as potentially permitting federal funding for abortions, whereas the House bill contains the “Stupak Amendment” (insisted upon for their needed votes by a group of anti-abortion Democrats), which explicitly bans federal funding for abortions, consistent with current law and practice.

4. It is generally believed that the House bill could not pass the Senate, and vice versa. Since it is harder getting a bill through the Senate because of the risk of filibuster, getting the Senate bill through the House is the less difficult approach.

5. The House Democrats cannot secure enough votes to pass the Senate bill straight up as it stands, in significant part because many Democrat representatives do not want to go on record as voting for such extremely unpopular parts of the Senate bill such as the Cornhusker Kickback and Gator Aid. Also, Speaker Pelosi’s assurance to House Democrats that if they voted to pass the Senate bill the House would immediately pass a companion bill that would remove, or fix, the unpopular provisions of the Senate bill has been unpersuasive to many House Democrats for this reason: they fear that these “fixes” would never come to pass because the Senate would be unable to pass some or all of them, even if the Senate Democrats tried to pass such House “fixes” via the risky and uncertain “reconciliation” process. Also, some House Democrats fear (undoubtedly with very good reason) that as soon as they passed the Senate bill, Obama would sign it into law, and thus once some version of Democrat health care reform was law, the political will to ram through certain fixes in the Senate via reconciliation will peter out, and the fixes will never happen.

6. Therefore, the House Dem leadership has concocted a convoluted grand scheme that would have the House Democrats pass the Senate bill without an explicit vote on it and would give House Democrats political cover by allowing them to remove the unpopular parts of the Senate bill at the same time.

7. The House Democrat leadership’s plan, endorsed by Rules Committee Chairwoman Rep Slaughter, is to pass in the House a new “Slaughter Rule” bill that would have two parts: Part 1 would “deem” the Senate bill to have passed the House, and Part 2 would change, or fix, the Senate bill to remove the significant parts that House Democrats find objectionable. This scheme would allow the House Democrats to “pass” the unpopular Senate bill without having to go on record as explicitly voting for it, thus allowing members to assert that they voted for a different bill that removed the unattractive elements of the Senate bill. But, in effect, by voting for the House Slaughter “combo” bill (my terminology), they would be voting for and against the Senate bill at the same time.

8. It seems to me that this Democrat grand “scheme and deem” is predicated in part upon the belief that, once the House combo bill passes, Obama could not sign the Senate bill version of HC reform into law because the House combo bill and the Senate bill would not be the same thing. It has been thought to be settled law that the exact same bill must pass both houses of Congress before the president can sign it into law, but this construct may be about to be challenged. Passing a “Slaughter Rule” combination bill seems to address the fear among some House Democrats that if the House passed the Senate bill as is with only a promise of a future fix, Obama would sign the bill into law and the fix would never happen, either because of political resistance in the Senate or loss of interest by Obama, Pelosi, and Reid, who, among other things, all like the weak anti-abortion language of the original Senate bill and would be delighted to declare victory with the Senate bill and move on.

9. If the Slaughter Rule bill were to pass the House, then, as I understand the theory, the Senate would need only to pass the Part 2 (the “fix”) of the House bill, called by some the “reconciliation” bill. Since the election of Republican Scott Brown in Massachusetts to fill the vacant seat created by the death of Edward Kennedy, the Democrat caucus only has 59 votes, and it needs 60 votes to break a filibuster and bring the House fix, or reconciliation, bill to the floor for a vote. Thus the talk among Senate Democrats of passing the House fix bill via the controversial tactic of “reconciliation,” which requires only 51 votes to pass and avoids the possibility of filibuster (hence the term “reconciliation” bill).

10. The problem with the grand scheme at this point is that there is no guarantee that the Senate rules would allow all of the “fixes” in the House “combo” bill to be passed via the reconciliation process (the abortion language is regarded as a good example), and if the House fix bill could not pass the Senate in its entirety, then there would be no Democrat HC bill that Obama could sign into law, which would leave the House Democrats hanging with a vote on this cockamamie scheme that ultimately failed in the Senate.

11. For the Democrats, this grand scheme is further complicated by the fact that the Senate rule appears to be that the reconciliation process can only be used to modify an existing law, not simply a previously passed Senate bill. If this interpretation were to hold up, then the Democrat scheme fails, for the House would have needed to have passed the original Senate bill as is and Obama would have had to have signed the Senate bill into law before the “fix” bill, desired by many House Democrats, could be passed in the Senate via the reconciliation process.

12. For the Democrats, even ignoring the problems with trying to pass the House “fix” bill in the Senate via reconciliation, their hope for the grand scheme is also significantly challenged by the fact that many people think that the scheme is unconstitutional, for the Senate and the House would not have passed the same piece of legislation, as they would bring to Obama’s desk the original Senate bill, the House Combo bill, and the Senate fix, or reconciliation, bill (assuming that the Senate passes the fix part of the House bill exactly as it is worded in the House bill). Obama would need to sign all three, but not one of the three would have passed both houses of Congress. If the Senate Democrats revised the original Senate bill to incorporate the House “fixes,” even if there were the votes for this, then still such a revised Senate bill would not be the same piece of legislation that the House combo bill would be, thus again the constitutional problem of Obama trying to sign into law a House bill and a Senate bill that are not the exact same piece of legislation.

Of course, Democrat leaders may twist just enough arms and extend just enough bribes to get a majority of House Democrats to pass the Senate bill straight up as is, without the “scheme and deem,” which Obama could then sign into law. But if they were able to pass it this way up till now, they would have already done it this way, the normal, straightforward, constitutional way.

The hallmark of liberalism in America used to be the defense of legal procedure and the rule of law as the surest way to protect liberty. The contemporary leaders of the Democrat party are turning that notion on its head as their pursuit of power now trumps historic procedural safeguards. It’s not much more of a step for a political party one day to just dispense with all this procedural rigmarole and declare their bill the law of the land and call out the troops. It’s happened before, just not here.

John M Greco