Rep. Mike Pence (R-IN) lashed out at Democrats attempting to bypass a floor vote on the government takeover of one-sixth of the nation’s economy.  Pence scoffs at the notion that ObamaCare won’t be a government takeover of health care, pointing out that a federal mandate for every American to purchase health insurance as a matter of law is a fundamental imposition of Washington on the personal choices of Americans.  He then accuses its supporters of violating their oaths to support and defend the Constitution in their effort to bypass a floor vote, especially on such a momentous piece of legislation:

“The Democrat health care bill that’s being brought through the Congress this week is nothing more than a government takeover of health care, and the American people know it. I know the administration doesn’t like us to use that phrase, but come on.  When you mandate that every American purchase health insurance whether they want it or need it or not, you mandate that every business provide it, you create a massive government-run bureaucracy exchange that mandates what’s in insurance plans, you wrap that all in about $1 trillion worth of spending, that’s a government takeover of health care.

“But what’s really remarkable about this whole business is that not only the American people rejected this plan but Democrats are so desperate to pass it that they’re willing to trample on the traditional rules of the House and Senate and even trample on the Constitution of the United States to get it done.

“The Constitution provides that a bill becomes a law if it’s passed the House of Representatives and the Senate. Democrats actually don’t have the votes to pass the Senate bill, so they’ve decided they’re going to try and pass the bill without a vote.

“Well that would be news to the Founders of this country, and a betrayal of the commitment of every Member of this Congress to the American people.  I urge the Speaker, if you have the votes for the Senate bill, bring it to the floor.  If you don’t, let’s scrap the bill and start over for the American people.”

It’s hard to see how the Democrats win with this approach. First, they may not have enough votes to pass the reconciliation sidebar bill that would “deem” the Senate bill to have been passed. The CBO report on reconciliation could come back negative, or the amount of vote-buying inserted by Nancy Pelosi could create another Cornhusker Kickback backlash. Beyond that, though, the process looks sleazy and will contribute to the sense that Pelosi, Harry Reid, and Barack Obama are pulling illegal or at least unethical stunts to keep opponents from stopping the bill. Americans want to see more transparency in government, not less, and using parliamentary chicanery to hide from a floor vote on the Democrats’ biggest domestic agenda item hardly qualifies as transparency.

Yesterday, Constitutional scholar and former 10th Circuit judge (and former shortlister for a Supreme Court nomination) Michael McConnell wrote about the legality of the Slaughter rule:

It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

That takes us back to the issue in Public Citizen v US and the Marshall Field ruling.  Commenters on the earlier post noted that the issue in the Public Citizen case involved whether the bill that was passed was actually the same in both chambers in Congress, but the ruling itself and the Marshall Field ruling were more expansive than the parameters of the immediate arguments, as the appeals court explained (emphases mine):

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109.

That doesn’t necessarily make McConnell wrong on the Slaughter Rule’s constitutionality; I agree with him that it violates Article I, Section 7.  However, the courts have consistently ruled that they’re not going to intervene in these cases.  Don’t expect them to do so with ObamaCare.  If it’s going to be defeated or repealed on that basis, then the defeat has to come politically, not judicially.

Andy McCarthy disagrees, however:

To analogize, here is what I think the Democrats are doing: They are saying that because I once stipulated, on an uncontroversial issue, and allowed the streamlined proof of a proposition that was of little or no importance to me, I have forever waved my Fifth and Sixth Amendment rights to due process of law and confrontation. They are saying that because I stipulated that the drugs were drugs, I must also stipulate that I was the guy who sold them — that I have forfeited my right to make them come in, testify, and convince the jury that they are telling the truth, as the Constitution requires. In essence, they are saying a trial is no longer a trial with all the attendant guarantees.

No judge would abide such a system. It would turn justice into a kangaroo court. More importantly, the public would no longer regard the judicial system as legitimate. It’s outcomes would no longer be worthy of our acceptance and respect. We would no longer follow its rulings and dictates.

This is what is happening to the legislative process. Sure, we don’t make lawmakers dot every “i” and cross every “t” every time. But that doesn’t mean we’ve abandoned the right to make them play it by the book when it comes to a controversial matter. When there’s a real dispute, they have to pass the bill the regular, constitutionally mandated way: Both houses on the exact same text, with every legislator accountable for his vote.

If, instead,the legislative process becomes a farce that departs from the constitutional procedures we are entitled to enforce, then it no longer represents the consent of the governed. It is the first American principle that government derives its just powers only from the consent of the governed, and when it takes on a form that becomes destructive of the fundamental rights of the governed, it is no longer legitimate.

Again, I don’t disagree with Andy, but the court’s precedent shows that they have explicitly declined to rule on process legitimacy in Congress.  Could this court overturn that precedent?  They certainly could, but with such a strong, clear, and recent precedent, it seems like a rather desperate hope.