This week, NBC News and The Wall Street Journal released poll results that are disturbing but by no means surprising. The March 11th – 14th poll of 1000 American adults showed that only 17% of respondents approve of the job Congress is doing in Washington. And as bad as that number is, the reason why Congress’ approval rating is so low is even more disturbing: a full 76% of Americans simply do not trust the U.S. Congress. This was the lowest level of trust for any representative entity tested by NBC/WSJ.
It is no coincidence that these record low ratings come amid current debate over health care in Congress. Yesterday, former U.S. Attorneys General Edwin Meese III and William P. Barr released the following statement:
The convoluted and questionable method under discussion by both Houses of Congress for final passage of the long-debated health care legislation raises serious constitutional concerns, which, at best, will lead to protracted and wholly avoidable litigation and continued doubt about the bill’s validity. Members of Congress from both parties have criticized the use of such sleights of hand, and The Washington Post has rightly editorialized against such “unseemly” and “dodgy” maneuvers for the health care bill. Beyond the obvious practical concerns shared by all citizens, the use of such obscure “rules” for final passage is even harder to justify in light of the real constitutional doubt and the erosion of public confidence in government that it will cause.
Contrary to what President Obama and some congressional leaders have been repeating of late, the American people do care passionately that the process for consideration of health care reform be both constitutional and fair. At a bare minimum, article I, sec. 7, cl. 2 of the U.S. Constitution requires that before it becomes law “(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.” Clinton v. City of New York, 524 U.S. 417, 448 (1998).
The “deem and pass” and similar options under consideration in the House of Representatives plainly violate at least the spirit of the Constitution’s bicameralism and presentment requirements. Those constitutional requirements were intended to ensure democratic transparency with a straightforward up-or-down vote in each House on all bills that become law. More importantly, these requirements were designed to ensure that the new national government actually followed “the consent of the governed,” which the Declaration of Independence had declared to the world was the only basis of legitimate government.
The “deem and pass” options under consideration in the House and the subsequent use of a “reconciliation” process that is reserved for budget issues in acts already signed into law further erode confidence in the rule of law. Some past uses of the “deem and pass” or “self-executing” rules raise similar concerns, but none was as convoluted as the proposed use, and significantly, there may have been no one with legal standing to challenge prior uses in court. Many individuals will have standing to challenge any health reform legislation that restructures one-sixth of the American economy, and the contemplated use of the “deem and pass” maneuver in this instance may be combined with questionable procedural steps in the Senate that render it much more subject to challenge.
There is no need to engage in such procedural machinations, and no asserted reason for doing so exists other than to avoid the traditional legislative safeguards in the Senate and to obscure the appearance that Members of the House actually voted for the Senate bill, which is a prerequisite for genuine reconciliation. The constitutional requirement of bicameralism should not be jettisoned under any circumstances—and certainly not for such trivial and partisan reasons.
Members of Congress take an oath to uphold the Constitution. Members should violate neither the letter nor spirit of the Constitution, especially when there is so much at stake, not only as a policy matter, but when the very legitimacy of the legislative process is in question. Given that many parts of the underlying legislation itself raise substantial constitutional concerns, these “unseemly” and “dodgy” procedures underscore the justified concern the American people have that their elected representatives are blatantly disregarding the Constitution, and as a result, undermining the rule of law.
Quick Hits:
- Bowing to public and private complaints from lawmakers, President Barack Obama delayed his trip to Indonesia and Australia to lobby for his health care bill.
- According to Gallup, pluralities of the American people believe Obamacare will make things worse for middle-income families, hospitals, doctors and “you and your family.”
- According to Fox News, 55% of Americans oppose the health care reforms being considered in Congress.
- A new analysis by the Joint Economic Committee and the House Ways & Means Committee minority staff estimates up to 16,500 new IRS personnel will be needed to collect, examine and audit the new tax information Obamacare requires families and small businesses to provide.
- Sen. Tom Coburn (R-OK) promised to block any nominations of House Democrats who vote for Obamacare to any Senate-approved federal position.
Another day, another poll showing President Barack Obama’s health care plan is wildly unpopular with the American people. Yesterday NBC News/The Wall Street Journal released their latest poll showing that the percentage of Americans who believe President Obama’s health care plan is a bad idea (48%) is at the highest level since they started asking the question last year. Only 36% of Americans are willing to call the plan a “good idea” which is up a whole four points from the time when House Rules Committee Chair Louise Slaughter (D-NY) wrote this about the Senate health plan:
[U]nder the Senate plan, millions of Americans will be forced into private insurance company plans, which will be subsidized by taxpayers. That alternative will do almost nothing to reform health care but will be a windfall for insurance companies. … Supporters of the weak Senate bill say “just pass it — any bill is better than no bill.”
I strongly disagree — a conference report is unlikely to sufficiently bridge the gap between these two very different bills. It’s time that we draw the line on this weak bill and ask the Senate to go back to the drawing board. The American people deserve at least that.
The Senate health bill is so unpopular, even among House Democrats, that the leftist House leadership is desperately trying to trick the American people into believing that the House can pass the Senate bill without voting on it. Hence the Slaughter Rule which would deem the Senate bill passed at the same time the House would approve a new reconciliation bill. Speaker Nancy Pelosi (D-CA) was crystal clear on her motives this week telling a group of leftist bloggers: “It’s more insider and process-oriented than most people want to know. But I like it because people don’t have to vote on the Senate bill.”
There is one increasingly glaring problem with Pelosi’s pass-the-bill-without-voting plan: it is proving impossible to draft that reconciliation bill. The Democrats first promised to unveil their new bill last Wednesday. Then Thursday. Then Friday. Then Monday. Then last night. As of this morning, still nothing. Democrats say they are waiting for a score from the Congressional Budget Office before they release their bill, but there is nothing stopping them from releasing whatever text they have now and then publicizing the CBO score when it comes back. But they are not choosing that open and transparent path.
As we reported last week, getting a CBO score consistent with reconciliation is going to be very difficult. According to House rules, a reconciliation measure must reduce the deficit by at least $2 billion over five years compared to existing law. In this case, however, “existing law” would be the yet-to-be-passed Senate bill. And all of the changes Democrats want to make to the Senate bill (scaling back the tax on high-end health insurance policies; closing the Medicare D loophole; boosting insurance subsidies; increasing Medicaid payments; and expanding the Cornhusker Kickback to all) either increase spending or decrease revenue. Which means the Democrats have to identify new revenues to make the CBO score work. And as Congressional Quarterly reported yesterday, Democrats have not yet identified the right pay-fors to game the CBO right. That is why House Leadership has not unveiled their new bill yet: they can’t figure out how to pay for it.
Not that it really matters if they ever do. The reconciliation bill is never going to become law. The Senate will never pass it. They have no reason to. The Senate likes the existing Senate bill. That’s why it’s called “the Senate bill” … they are the ones who passed it. The White House also likes the Senate bill. As soon as the House passes it, President Obama will sign it and then leave for Asia. That’s it. Obamacare will be, as White House Press Secretary Robert Gibbs promised last Sunday, “the law of the land.” After the Senate bill is law, what could possibly motivate the White House, let alone the Senate, to ever pick up the yet-to-be-written House reconciliation bill?
This is why the White House political machine is pulling out all the stops to get the House to pass the toxic Senate bill. Democratic National Committee Vice Chair Donna Brazile is actively encouraging primary challenges to Democrats who vote against the Senate bill. One House Democrat aide tells Politico: “We’re having donors, even donors outside of our district, that are being called and asked to urge support.” For her part Speaker Pelosi is relishing the bare knuckle fight telling reporters yesterday: “I never stop whipping. There’s no beginning, there’s no middle, and there’s no end.” Let’s just hope her members remember which bill she’s really whipping them on.
Quick Hits:
- Testifying before the House Appropriations Committee, Attorney General Eric Holder refused to answer whether or not the Obama administration would read Osama bin Laden his Miranda rights, insisting that bin Laden would never be taken alive.
- Cash strapped states like Illinois and California are coming hat in hand to Washington for hundreds of billions of federal taxpayer dollars in bailouts.
- Homeland Security Secretary Janet Napolitano announced yesterday the Obama administration will delay the virtual U.S.-Mexico border fence.
- The Chinese government is setting the foundation for Internet giant Google to pull out of the country.
- Former-Democrat and current Massachusetts State Treasurer Timothy Cahill tells The Boston Globe: “If President Obama and the Democrats repeat the mistake of the health insurance reform here in Massachusetts on a national level, they will threaten to wipe out the American economy within four years.”