- The Washington Times - Wednesday, March 17, 2010

ANALYSIS/OPINION:

In a last-ditch scheme in defiance of the Constitution, House Speaker Nancy Pelosi and her Democratic accomplices plan to send the Senate health care bill to President Obama without a clean up-or-down vote on its merits.

As Democratic leaders struggled to find 216 votes to pass the bill by a majority vote, as required under the enacting procedures set forth in the Constitution, their fallback was a nefarious plan whereby the House would “deem” the legislation passed so that vulnerable Democrats would not have to cast a recorded vote on the hugely unpopular bill.

“Last year, the House was passing bills without reading them. This year, they’re passing bills without voting on them,” former House Speaker Newt Gingrich said last week.

After more than a year of legislative combat over a bill that would effectively put a massive new government bureaucracy fully in charge of the nation’s private health care system - and impose a raft of new taxes on Americans, businesses and the economy - Democrats reached a stalemate that threatened to kill the centerpiece of Mr. Obama’s presidency. Their problem: the Constitution’s vexing requirement for a majority vote to enact bills into law.

Then Mrs. Pelosi and her friends came up with an idea to get around the Constitution that, if they succeed, will end up before the Supreme Court, where it likely would be overturned.

The complicated maneuver, which has been in the planning stages for weeks, has received little or no detailed attention in the network nightly news shows, and Democrats were happy about that. The less Americans knew about the Democrats’ end run around the Constitution, the better it was for them and their plans for an unprecedented expansion of the government, their leaders said.

“It’s more insider and process-oriented than most people want to know. But I like it, because [House] people don’t have to vote on the Senate bill,” Mrs. Pelosi told bloggers in a round-table discussion Monday.

In a nutshell, the Pelosi Democrats have decided to ram the Senate’s 2,700-page, $1 trillion bill through the House under a shady tactic that has never been used on major pieces of legislation, that is known as a “self-executing rule” or “deem and pass.”

The House Rules Committee will send the Senate bill, along with a package of amendments that would fix what Democrats do not like in it. The House will vote on the committee’s rules of procedure, and it will be deemed to have passed the Senate bill. Then the House will take up the so-called fixes and send them to the Senate. It’s a high-risk gamble by the House because there is no assurance the Senate will pass them, but by then, it won’t matter because Mr. Obama will have signed his health care bill into law.

Will this pass constitutional muster? That question most likely will end up before the Supreme Court.

Article 1, Section 7 of the Constitution, which sets forth the rules under which every bill is passed, is crystal-clear about how laws are made in this country, even if Mrs. Pelosi and her gang are not.

Section 7 clearly states that “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.”

In other words, no legislation can be considered passed without a recorded vote of the members of each chamber. There is no “deemed to have passed” or “self-executing” legislative maneuver in the Constitution.

Moreover, the Supreme Court has ruled on this issue before, so there are precedents in case law, according to Republican staffers who have been researching this. They point to a 1998 ruling by the high court that said each house of Congress must approve the exact same text of the bill being considered before it can be signed into law by the president. Any changes in that bill require that it be sent back to the other house for its concurrence or rejection.

Do the fix-it amendments attached to the legislative plan to approve the Senate bill effectively change the bill being sent to the president? Is this evasive Democratic maneuver too clever by half? These are questions the Supreme Court will be asked to answer if House Democrats go through with their politically devious attempts to sidestep the Constitution.

Meantime, health care analyst Grace Marie Turner reminds everyone of “one simple fact behind all these bizarre contortions of the legislative process: The House completely distrusts the Senate.” Will the Senate pass the House fixes under reconciliation, or will the hundreds of amendments prepared by Senate Republicans make that expectation highly unlikely?

In the end, the American people will not be fooled by this flim-flam maneuver. House Democrats will have to vote on the rule before they can take up this legislative bag of tricks, and everyone will know who voted to circumvent the democratic process.

Donald Lambro is a nationally syndicated columnist.

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