Too many members of Congress think passing a constitutionally dubious bill is politically safe because responsibility will fall on the courts to give a final yea or nay. The Democrats' government health care takeover is different. Every potential constitutional violation involved with Obamacare presents a grave political threat to every wavering congressman who votes for it. The only way to avoid being haunted for years is to kill Obamacare now.
Democratic leaders pushing the "Slaughter Rule" to "deem" the bill passed without an actual vote are relying on a 2007 D.C. Circuit Court of Appeals decision called Public Citizen v. Clerk. In that case, Rep. Nancy Pelosi, California Democrat, and Rep. Louise M. Slaughter, New York Democrat, argued that procedural errors within the House should lead the courts to invalidate a law. The appeals court disagreed, writing that courts should not be "directing legislative authentication procedures."
Now it is Speaker Pelosi and Mrs. Slaughter who are claiming their own procedural maneuvers can't be challenged. They fail to note the distinction that the Public Citizen case involved mere technical discrepancies in an enrolled bill, whereas the Slaughter Rule would change the very nature of the constitutionally mandated requirements for how a bill becomes law. As the Supreme Court wrote in Clinton v. City of New York in 1998, "Congress cannot alter the procedures set out in Article I, Section 7, without amending the Constitution." Specifically, the court wrote that no bill could become law unless "(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."
If the courts pronounce the Slaughter Rule unconstitutional, members who voted for it not only will have borne the wrath of angry opponents but will get no credit from the few Americans who did support the bill but then would see no benefits.
On substance alone, Obamacare will be subject to constitutional challenges on at least three fronts, including the unprecedented "mandate" that every individual buy health insurance or face fines or jail time. The way Obamacare is designed, with enough interlocking parts to make even Einstein dizzy, the whole edifice crumbles if the mandate is declared unconstitutional. Politicians who survive this fall's elections would be forced to return to the subject and take even more tough votes cleaning up the mess.
There's no political upside to caving in to Mrs. Pelosi's pressure to pass flawed legislation. Better to listen to the American public - and the text and spirit of the Constitution - and step up to defeat the whole thing.