Video: DeMint objects to supermajority protection in Reid’s ObamaCare bill

posted at 8:48 am on December 22, 2009 by Ed Morrissey

At first, Senator Jim DeMint starts off with a few points of parliamentary inquiry which seem rather dull, but like any good prosecutor, DeMint is carefully building a case — and his target is a particularly noxious clause in Harry Reid’s ObamaCare bill. On page 1020 of the text, DeMint discovers that Reid has created a rule binding future sessions of Congress to a supermajority requirement to overrule the bill’s rationing board, the Independent Medical Advisory Board, whose purpose (stated on page 1001) is to “reduce the per capita rate of growth in Medicare spending.” DeMint demands an explanation of how the Majority Leader can allow legislation to alter the rules of the Senate, both on the floor and in committee. The Weekly Standard has the key portion of the transcript:

There ‘s one provision that I found particularly troubling and it’s under section C, titled “Limitations on changes to this subsection.”

And I quote — “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

This is not legislation. It’s not law. This is a rule change. It’s a pretty big deal. We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law.

I’m not even sure that it’s constitutional, but if it is, it most certainly is a Senate rule. I don’t see why the majority party wouldn’t put this in every bill. If you like your law, you most certainly would want it to have force for future Senates.

I mean, we want to bind future Congresses. This goes to the fundamental purpose of Senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future Congresses.

As I recall, Congress is not allowed to pass rules that bind future Congresses. In the House, the rules have to be offered and approved at the beginning of each session. The Senate has standing rules, but they are not in the form of law that requires further legislation to alter — legislation that would be, under this bill, out of order even to introduce. It basically makes Harry Reid the dictator of the Senate, not just now, but in perpetuity.

Is it unconstitutional? The ability of each Congress to govern itself is certainly strongly implied in Article I, Section 5:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Clearly the founders did not intend that to mean that the first Congress could set the rules in perpetuity, and indeed as DeMint points out, rule changes have been made consistently without resorting to legislation to accomplish them because of the orders of a prior Congress. Put another way, the elected representatives of today should not have greater authority than those who will follow them. Any attempt to pass this into legislation aggrandizes the power of this Congress at the expense of those that follow.

And as DeMint points out, it sets a very dangerous precedent regardless of which party is in power. What will be next — a Republican Congress declaring any future bill that increases taxes out of order? Would Democrats sit still for that, too?

Erick Erickson has more.

Update: Gabriel Malor says the issue isn’t constitutionality, but the substance of what it protects.  Be sure to read it all.


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If this legislation effects a rule change with just a bear majority, why can’t some future Congress just pass some other legislation that changes the rule back with a bear majority?

tommylotto on December 22, 2009 at 1:15 PM

Aitch748 on December 22, 2009 at 9:32 AM
Plan B:

National Strike – January 20, 2010

Juno77 on December 22, 2009 at 9:52 AM

Make that Plan A to ensure that 2010 replaces them:

http://strike120.ning.com/

Drusilla on December 22, 2009 at 1:24 PM

So a future Republican Congress could legislate a rule (assuming a republican president) that no future Congress could enact laws or rules with respect to impose cap n trade and/or carbon taxes without a supermajority of 70 percent of both the democrat members and of the republican members of Congress. Could the republicans also pass a supermajority rule that the defense budget and/or funding for our armed forces could not be reduced unless seventy percent of both parties agreed to the reduction. And the same for increase in budgets of discretionary spending, requiring the same supermajority before any increases could be allowed for those programs. Harry Reid has thrown a grenade into the Congress, but the unintended consequences may make this a pyrrhic victory.

eaglewingz08 on December 22, 2009 at 1:25 PM

” — legislation that would be, under this bill, out of order even to introduce.”

Why are not at least 50 million citizens in Washington, D.C. right now chasing every Democrat in sight?

Seven Percent Solution on December 22, 2009 at 1:27 PM

It doesn’t matter if it is a “rule change” or whether it has been done before. the senate rules regarding filibusters can be changed by a simple majority. Only as long as 51% of the Senate itself wants to allow 41 Senators to hold up a vote, will the filibuster continue. that is why the “gang of 14″ was so important at the time. Those 14 senators got together to save the tradition of the filibuster, knowing that a simple majority could take the filibuster away.

the constitution, except where it specifically provides otherwise, allows for a simple majority vote to pass legislation (even legislation repealing prior legislation). You cannot change that. Otherwise, why can’t today’s majority pass a bill and simply write into the bill that “this bill can never be repealed”. Why would that not be constitutional? Simply, b/c a sittling legislature cannot tie the hands of a future legislature.

A new legislature could simply pass a bill by majority repealing that section of the bill that requires a supermajority. And then repeal the bill with a majority vote. or, are today’s elected officials somehow given more power then tomorrow’s elected officials.

This is simply stupid. If this is upheld by the congress, let alone a court, watch for every sitting congress to pass laws stating “this can never be repealed.” In other words, democracy is dead as future generations’ elected representatives would not have the powers granted to the congress under the Constitution. They would only have the powers granted to them by previous congresses. And, as time goes by, every law would have a clause stating it is unrepealable.

To all our leftist friends out there – what if the republicans win the house and senate and then the republicans passed a bill reducing the income tax rate on the top 10% of earners down to a total of 10% of AGI and then put a super-majority requirement in that bill that it can’t be repealed without a super-majority? Would you believe that was constitutional? Why would it be different than this?

This is not even a case for the Court. When the republicans next have both houses, they should simply repeal it and ignore that clause altogether. If the Court intervenes, ignore any Court ruling. this is truly laying the grounds for a constitutional crisis. Are the dems to be constrained by any laws or the constitution? Have they no shame?

Monkeytoe on December 22, 2009 at 1:32 PM

Another aside to our lefty friends. When the evil Bush was president with a republican congress – you were all claiming fascism was coming to america. Now that we have total disregard for our Constitution coming from the dems, a power grab of such immense proportions to be truly frightening, will you give voice to the same thing? Or, because it is your team, is this perfectly acceptable?

Monkeytoe on December 22, 2009 at 1:34 PM

If this legislation effects a rule change with just a bear majority, why can’t some future Congress just pass some other legislation that changes the rule back with a bear majority?

If we ever have a majority of bears in the congress, I think that will be the least of our worries.

Monkeytoe on December 22, 2009 at 1:35 PM

Monkeytoe on December 22, 2009 at 1:32 PM

word.

elduende on December 22, 2009 at 2:19 PM

Take that .243 or .270, scoped, and dial it in to 300 or 400 yards. Learn to reach out and touch something at that range. There is REAL effective use of each round.

Yoop on December 22, 2009 at 10:39 AM

3 must haves: 12 gauge – I prefer pump, 30-06 bolt action and a .22 semi auto rifle.

Those are must haves. Everything else is icing – .223, 25-06, single shot 12 gauge … and then there’s handguns. The .357 mag revolver is a 2 in 1 (.357 and .38) and, through experience, will knock a 120 lb. wild pig on his a$$ – if you can get close enough spotlighting him at night (I prefer revolvers for conceal and carry reasons).

BowHuntingTexas on December 22, 2009 at 2:26 PM

President Palin will issue an Executive Order stopping this in its tracks.
SouthernGent on December 22, 2009 at 9:47 AM

I like that. To Paraphrase Andrew Jackson: “Congress has passed its bill; now let Congress enforce it.”

Automatic amnesty for every every employer who doesn’t follow the rules, and for every private citizen who chooses not to pay his involuntary “insurance premiums.”

logis on December 22, 2009 at 2:35 PM

Jim DeMint has been the only republican senator consistently speaking out against the corrupt democrats takeover.

lonestar1 on December 22, 2009 at 3:14 PM

Holy Crap! What the heck is going on in America.?! And this goes on for another 3 years!
If no democrats cry foul about this, it will prove that there are no moderate democrats. If I were a dem and in office I would jump parties and at the least become an Independent.
.
DeMint/Lez Cheney 2012, that is if there is a republic left to govern in 3 years!

JeffVader on December 22, 2009 at 3:38 PM

The Democrat party has hijacked the future congress. Harry Reid should step down at once!

TN Mom on December 22, 2009 at 4:42 PM

In the next congress Sen DeMint needs to be the leader of the GOP in the senate .

thmcbb on December 22, 2009 at 4:54 PM

3 must haves: 12 gauge – I prefer pump, 30-06 bolt action and a .22 semi auto rifle.

Those are must haves. Everything else is icing – .223, 25-06, single shot 12 gauge … and then there’s handguns. The .357 mag revolver is a 2 in 1 (.357 and .38) and, through experience, will knock a 120 lb. wild pig on his a$$ – if you can get close enough spotlighting him at night (I prefer revolvers for conceal and carry reasons).

BowHuntingTexas on December 22, 2009 at 2:26 PM

We’re close on this. I have a Mossberg 500 pump, a 7.62×54 bolt action, and a Smith model 28 357 magnum. Thinking about a Ruger 22/10 with the mini AR conversion kit.

Dukehoopsfan on December 22, 2009 at 5:17 PM

We’re close on this. I have a Mossberg 500 pump, a 7.62×54 bolt action, and a Smith model 28 357 magnum. Thinking about a Ruger 22/10 with the mini AR conversion kit.

Dukehoopsfan on December 22, 2009 at 5:17 PM

Have the 500 with the short home-defender barrel. All black. Pure wickedness.

Have had the Ruger 10/22 since just after they came out. Absolutely reliable. Dependable and accurate. Mine even handles the low-velocity sub-sonic rounds without a problem cycling. It gets 95% of the use around here. Get a couple of 30 round banana mags while you still can.

If, of all the firearms I have I was allowed ONLY one, this is the one I would choose.

Yoop on December 22, 2009 at 5:37 PM

whbates on December 22, 2009 at 12:57 PM

You are not understanding…..these SMALL intrusions by the reps is what does them in. Indies then support the dems and conservatives stay home. That is how we got Obama.

csdeven on December 22, 2009 at 6:12 PM

As I see it, it’s time to grab the pitchforks and head to DC.

tim c on December 22, 2009 at 7:18 PM

That is how we got Obama.

csdeven on December 22, 2009 at 6:12 PM

…and how ‘glorified’ our land is to have him…

Schadenfreude on December 22, 2009 at 7:19 PM

In a moral country, the people who crafted this clause and who voted for it would be in jail.

proconstitution on December 22, 2009 at 8:04 PM

we ever have a majority of bears in the congress, I think that will be the least of our worries.
Monkeytoe on December 22, 2009 at 1:35 PM

Oh, I don’t know; we would probably be much better off governed by our ursine cousins than the criminal clown posse that is trying to rule now.

LegendHasIt on December 22, 2009 at 9:00 PM

Keep diggin I’m pretty sure there’s term limits for repubs in there somewhere too!

dhunter on December 22, 2009 at 9:12 PM

The whole law could be repealed.

Or they could follow a Harry Reid precedent and simply ignore the rule.

drjohn on December 23, 2009 at 10:07 AM

I suppose they could simply start off the 2011 senate with a rule stating that senate rules of all prior senates are nonbinding on them.

The problem with saying the rules don’t apply to my stuff, is that if you push it, none of the rules will apply to it anymore.

Not long ago I was watching Throne of Blood (MacBeth expy). I’m reminded of a scene near the end when the forest has marched, and the lord of the castle’s men have turned on him, hoping to trade his head for their lives. He yells out that “Killing your lord is high treason!” Someone in the crowd yells back, “You killed your lord too!”

Voyager

Voyager on December 23, 2009 at 10:07 AM

Have the 500 with the short home-defender barrel. All black. Pure wickedness.

Have had the Ruger 10/22 since just after they came out. Absolutely reliable. Dependable and accurate. Mine even handles the low-velocity sub-sonic rounds without a problem cycling. It gets 95% of the use around here. Get a couple of 30 round banana mags while you still can.

If, of all the firearms I have I was allowed ONLY one, this is the one I would choose.

Yoop on December 22, 2009 at 5:37 PM

Thanks for the tip. My brother has the Ruger too with a scope and it’s awesome.

Dukehoopsfan on December 23, 2009 at 5:17 PM

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