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A Short Lesson on the Constitution

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Nancy Pelosi said that they are going to pass the Health-Control Bill without voting on it.  “Deem and Pass” is what she called it.  Only one little problem, the United States Constitution Article 1 Section 7.

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, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But 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. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Spin it however you want, but the law is the law.  At least it used to be the law…….

Posted by on March 17, 2010.

Categories: Constitutional Law, Health Care

23 Responses

  1. While I think what the dems are doing is wrong and outrageous and the american people will show their disapproval of these tactics in november “deem and pass” has been around since 1933 and used dozens of times…

    Where has this con law outrage been for the last 77 years?

    by johnny on Mar 17, 2010 at 9:06 am

  2. Especially from the Republicans who are feigning their indignation over the move now, considering they were proud supporters of the parliamentary trick.

    “In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration.”
    (http://blog.american.com/?p=11467)

    I get that the minority party always complains about how the majority is able to massage procedure to fit its needs, but the willingness of partisan observers to go along with their “team,” regardless of history or facts, is disturbing.

    by Her? on Mar 17, 2010 at 9:32 am

  3. 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.”

    If this dog passes, it’s lawsuit time for judicial review and, based on SCOTUS’s prior ruling, it will go down. People forget that the courts cannot get involved if suit is not brought. They just don’t leap out there and say stop. We have to ask them to say stop.

    by Stephen Kohut on Mar 17, 2010 at 9:37 am

  4. Stephen you do not need this ruling to sue. This process was used last month. Why wait?

    Also they are voting on the motion and those votes are tallied. Its just not directly voting in the bill. So this is not as clear cut as you might think, because the way I understand it, is it contains the exact words of the senate bill but it is a motion to deem it agreed to. So they are voting directly on it without having to say they are voting directly on it.

    by johnny on Mar 17, 2010 at 11:14 am

  5. ………………
    “So they are voting directly on it without having to say they are voting directly on it.”

    …………
    Yep. Dodging a recorded yea nea so they can’t be identified by their constituents as the slimebags who sold them out.

    It’s such a GREAT health care bill that Congress specifically exempts itself.
    A simple amendment to REQUIRE Congress to be part of what they intend for everyone else was rejected.

    What does that tell us all?

    by wanumba on Mar 17, 2010 at 11:34 am

  6. ooh wanumba I agree with you. I just can’t stand the people who suddenly say this is wrong. Its either been wrong for 77 years or its always OK it cant be wrong just some of the time.

    Challenge the process now, there was literally a deem and pass vote last month. If these people who claim to care really did then challenge it now. Maybe you get a judge to rule in your favor before the vote occurs (not in the house but the senate who has to pass the changes also) and it would never get ot the Presidents desk….

    by johnny on Mar 17, 2010 at 11:44 am

  7. If the bill was so great, it shouldn’t NEED this sort of contorted “process” to get passed. If it was so great, we would be able to READ it NOW, not AFTER. Hiding, sneaking, double-talk is NOT demonstrating ANY duty to citizens.

    The bill is a massive power grab and it’s stench is spreading.

    by wanumba on Mar 17, 2010 at 4:05 pm

  8. papatodd, please address the underlying hypocrisy of your post; why was this process good enough for Republicans but now is suddenly illegal?

    by Kenny Jacobs on Mar 17, 2010 at 4:59 pm

  9. You guys underlined “all” but the next word is “such”. That sentence seems only to apply to vetoes.

    Deem to pass sucks but it probably isn’t unconstitutional on its face.

    by Arizonus on Mar 17, 2010 at 8:09 pm

  10. The clause you have highlighted only refers to veto override attempts by Congress and has nothing to do with ‘deem and pass.’ This is a lame way to go about passing the thing, but Congress has the power to make its own rules and ‘deem and pass’ doesn’t violate the Constitution.

    by todd on Mar 17, 2010 at 8:13 pm

  11. It never ceases to amaze me that people cannot read and understand a document written at a high school level in plain English. All means all. Every bill considered must have recorded yeas and nays. This is not Clinton trying to define what the meaning of is is. In Clinton V. New York City Justice Stephens’ majority opinion is clear. You have to do it as written in the Constitution.

    For those who ask why other “deemed and passed” legislation is on the books no one has taken it to court to challenge it. Both sides play fast and loose with the rules until held accountable in court and the courts do not pick their own cases.

    by Stephen Kohut on Mar 17, 2010 at 9:04 pm

  12. Stephen Kohut,
    I am not going to sit here and diagram the sentence for you, but the plain English meaning is in fact that this requirement applies to votes to override a veto. There is no twisting of the English language required. Seriously, try reading the passage again.

    by todd on Mar 17, 2010 at 10:04 pm

  13. Todd,

    I read and write quite well, thank you. It’s tough to draft and analyze patents and contracts if you don’t. All means all.

    by Stephen Kohut on Mar 17, 2010 at 10:52 pm

  14. Stephen
    The issue is not what all means because as it says ‘all such cases.’ Please explain what ‘such cases’ refers to if not the situation described immediately before the statement which refers to attempts to override a veto.

    by todd on Mar 18, 2010 at 6:49 am

  15. Stephen I know both sides play fast and loose but that didnt answer my question why you suddenly feel like it should be challenged after the healthcare vote.

    Challenge it now! There was a deem and pass vote a month ago…

    by johnny on Mar 18, 2010 at 8:22 am

  16. If this has been going on for the last 77 years, AND now it is happening on OUR watch, what are YOU doing about it? Are you writing your congressmen, calling and/or emailing them? If the previous generations let this happen, well then, shame on them. If WE allow this to continue SHAME ON US!

    by papatodd on Mar 18, 2010 at 8:40 am

  17. Kenny, You don’t know a thing about me. D or R, I railed just as hard on the Republicans when they did it too. Calls letters, emails. Just wasn’t blogging back in the day.So no hypocrisy there… BTW, since you are SO concerned about hypocrisy, please enlighten us all on what you are currently doing with this current congressional situation. Anything? Hello? Buehler????

    by papatodd on Mar 18, 2010 at 9:18 am

  18. Todd,

    Paragraph topic sentence – Every bill ….

    Case 1 – If he approve he shall sign it (signed)
    Case 2 – if not he shall return it (vetoed)
    Case 3 – If after such Reconsideration (veto over ridden)

    todd & johnny,

    Mark Levin and Landmark Legal have the suit drafted and will file if deemed passed is used. I suggest you read it. It’s quite on point regarding the Constitution and prior case law.

    http://www.landmarklegal.org/uploads/Landmark%20Complaint.pdf

    by Stephen Kohut on Mar 18, 2010 at 10:57 am

  19. Stephen Kohut,
    No, you are continuing to misread.

    In your reading it does not apply to case 2, since a veto obviously does not result in votes.

    It works like this.

    If he approve he shall sign it end and it becomes law, end of story. The rest of the passage has to do with if he returns it. You will note that the words are ‘Every bill which shall have passed’ which is clearly in the past tense. This passage is referring to what shall happen to a bill that has already been passed.

    If not, he can send it back for reconsideration.

    Either the House or Senate can try to override and if there is a 2/3 vote it is sent to the other house.

    If the other House likewise overrides it becomes law.

    In all such cases the votes need to be recorded. Such cases clearly refers to the situation just discussed of reconsideration.

    Levin is simply wrong, and this part of the case will be tossed.

    Oh, and here is the real kicker to your argument – bills are regularly approved in House and Senate by voice vote in which the individual votes are not recorded.

    by todd on Mar 18, 2010 at 11:52 am

  20. Todd,

    Welcome to what litigation is for. We disagree on interpretation. I’ll take Levin’s, the 37 state AG’s offices and all the other pending lawsuits’ chances to put a stake through its heart. I like my odds with a conservative 5-4 SCOTUS.

    by Stephen Kohut on Mar 18, 2010 at 12:26 pm

  21. Well done Stephen!
    I too will go with the 37 AG’s opinions.
    Check and Mate

    by papatodd on Mar 18, 2010 at 3:22 pm

  22. pappatodd and Stephen. The 37 state AGs have nothing to do with the argument being put forth here. Complete red herring.

    by todd on Mar 18, 2010 at 3:57 pm

  23. Todd,

    My position stands on Art 1 Sec 7. We disagree. If that argument makes it to court we’ll find out who was right. Until then the 37 AG’s will decide their own basis for their suits whether that is Art 1 Sec 7, Art 1 Sec 8, 10th Amendment, … They have a virtual cornapcopia to chose from.

    by Stephen Kohut on Mar 18, 2010 at 8:42 pm

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