I disagree with DrewM, who wrote below that despite how bad DemonPass stinks, the Court would probably allow it, as they've rejected objections to this procedure in the past.

First of all, it has to be noted that the Court declined to rule, not that they actually blessed the procedure. They refused to rule because of the Political Questions Doctrine, which keeps the Court (sometimes) from interfering in the constitutional duties of its coequal branches.

This is a prudential consideration -- i.e., sure, this thing stinks on ice, but wouldn't it be worse for the Constitution if the Court stepped in and began micromanaging procedure in a coequal branch of government?

Such prudential concerns are important, but they do have their limits.

For example: Suppose that the the House passes a bill. But Nancy Pelosi doesn't like it, and substitutes her own version with some editing for the bill actually passed. She then presents this to the President for signature (after the Senate passes it).

Now, this is blatantly unconstitutional -- she just slipped a law to the President without a vote on it at all; it's merely what she alone wants -- but she's entrusted to do this presentation business and she claims it was passed.

Now if the House doesn't have some way to thwart her here -- if they cannot rouse some sort of vote to stop this -- is it really true that even in this case the Court would say "It is not for us to decide how the House manages its affairs?"

I doubt it. There is a limit to how much restraint prudence dictates you show in the face of constitutional lawlessness.

Now, in the present case, the situation is not quite as extreme. However, in the past, the self-executing "demonpass" dodge was used with regard to legislation that was going to pass anyway; Congress concocted itself a trivial dodge so they could say they hadn't voted to raise the debt ceiling. But if that dodge had not been available, they would have voted for it.

In such circumstances, the Court can show a bit of restraint and say, basically, "No harm, no foul," and show the restraint they prefer to show in keeping out of Congress' internal affairs.

But what about when the measure would not have passed otherwise? What happens when Congress is attempting to "pass" a bill which does not in fact have enough votes to pass at all? Does the Court continue showing this forbearance and ultimately bless as constitutional a blatantly unconstitutional (and undemocratic) trick?

In one case showing a bit of prudential restraint is cost-free as Congress was going to pass the law anyway; the Court was merely quibbling over the procedure used to pass it. There was little doubt that the substance of the law would be passed one way or another. In that case, the Court could rightly decide that their interest in the ticky-tack specifics of procedure was easily outweighed by the need to defer to a coequal branch.

In the present case, though? I don't think that weighing favors allowing this to stand.

Andy McCarthy makes a ballpark-similar sort of argument at NRO.

Commenters at Hot Air also note that in the case considered by the Court, the House and Senate bills were actually identical. That has big implications for this case, because the Democrats are basically attempting to "pass" a law by not passing it at all, and furthermore, trying to "pass" it as identical to the Senate bill (so that reconciliation may be used) but also passing a very not-identical list of changes to the very bill they are claiming is being passed identical to the Senate's.

For the Court, that might be one unconstitutional dodge too many.

Posted by: Ace at 12:30 PM | Comments (82)
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Good questioning here.

Samantha Guthrie of NBC contends heroically to get an answer out of this fat sick of giggly shit, but he evades and evades.

A CNN reporter, Ed Henry, also tries to get a straight answer. FAIL.

Thanks to justkarl for the last clip.

Posted by: Ace at 12:05 PM | Comments (113)
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He notes he can't do a "whip count" because most of these people aren't saying which way they'll vote. And some, like Guitierrez, say they'll vote "no" but will likely vote "yes."

So there's not a lot of quotably-conclusory stuff here -- but he does list all the trouble spots for Pelosi.

The Hill has 37 Democrats in the "Firm No, Leaning No, Likely No" category. I agree with 36 of these 37 (Update 12 noon: Or, better put, 36 of 37 seem plausible to me). The only objection I have is Luis Gutierrez, and that's not a criticism of The Hill. He says he's a no, which is why he's there. I think he's going to be a yes when push comes to shove.

Then I go down to their list of Undecideds, and I see plenty who could very well wind up as no votes. Here are the top 11...

Well, 39 Democrats voted against it last time, and it passed 220-215. Plus, Democrats have lost three yeses, but their threshold dropped by one to 216.

So... The thing is, he's right. Democrats are right on the knife's edge of having enough votes to pass this -- it really depends on how many of those supposed "firm nos" remain nos, and how many of Stupak's Dozen remain strong on the Stupak language.

Of course we know they don't have the votes at the moment; you can bet the moment they do they'll call a vote within minutes. Hoyer rejected a fellow Democrats' claim that they have the votes:

After shooting down GOP arguments against a rule to “deem” the Senate healthcare bill passed without a roll call vote, House Majority Leader Steny Hoyer (D-Md.) took a moment to shoot down the optimism of one of his fellow leaders about the Democrat’s whip count.

Toward the end of his weekly press conference on Tuesday, Hoyer was asked about competing whip counts from James Clyburn (D-S.C.), the Democratic Whip, and Caucus Chairman John Larson (D-Conn.).

On Monday night, Larson emerged from a Caucus meeting to declare that he believed “the votes are there” for healthcare.

...

But LarsonÂ’s statement immediately made him the highest-ranking optimist in the Democratic ranks.

Over the weekend, Clyburn said that Democrats are still short votes, by his count. In a Tuesday interview with McClatchy Newspapers, Clyburn said that he “thinks” he’ll get 216 votes. But in that interview Clyburn also said that he “wouldn’t bet” on the House actually taking the healthcare vote prior to the Easter recess, let alone by Sunday.

...

“The whip is responsible for counting the votes,” Hoyer said. “And I will defer to Mr. Clyburn’s judgment on that issue.”

Stupak: My Own Whip Count Is Still 12: Stupak says that unlike Clyburn, Hoyer, or Pelosi, he does have the votes.

Posted by: Ace at 11:30 AM | Comments (139)
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Well, nothing good and nothing American, at least.

From Politizoid, via Instapundit.

Posted by: Ace at 11:13 AM | Comments (47)
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Wouldn't want to offend the people who asses we are saving.

The many nations helping Haiti recover from the devastating earthquake that struck there have set up their own military compounds and fly their flags at the entrances.

France's tricolor, Britain's Union Jack and even Croatia's coat of arms flap in the breeze.

But the country whose contributions dwarf the rest of the world's — the United States — has no flag at its main installation near the Port-au-Prince airport.

The lack of the Stars and Stripes does not sit well with some veterans and servicemembers who say the U.S. government should be proud to fly the flag in Haiti, given the amount of money and manpower the U.S. is donating to help the country recover from the Jan. 12 quake.

The Obama administration says flying the flag could give Haiti the wrong idea.

"We are not here as an occupation force, but as an international partner committed to supporting the government of Haiti on the road to recovery," the U.S. government's Haiti Joint Information Center said in response to a query about the flag.

..."Our commanders are smart and intuitively understand their mission here in Haiti, and clearly the sensitivities that come with supporting the mission," Buckner said.A U.S. flag went up at a temporary consular station set up in the first few days on the airport tarmac, according to Charles Luoma-Overstreet, a State Department spokesman in Haiti.

"Apparently, the prime minister (Jean-Max Bellerive) saw this" and thought it appeared as if the United States were taking over the airport, Luoma-Overstreet said.

Hey Mr. "Prime Minister"...we can leave your little hell hole anytime you like if you are so worried about appearances of a take over. Last I checked, not a single American will die if the US leaves Haiti by 5pm today. Can you say the same for your people?

I get that there's history for the US in Haiti but you know, if you are going to accept our charity to keep your people alive, perhaps you could accept the fact that we a not their as invaders. What the hell would we want want to occupy Haiti for?

I'm proud that the US can and does help people in need. I'll be damned if we have to be embarrassed or ashamed of who we are while doing it.

I don't know how high up the decision not to fly the flag went but now that it's becoming a story, if the situation doesn't change I hold Obama personally responsible for this insult to our nation and the men and women serving her in Haiti.

Thanks to William Amos who pointed this out in the comments last night.

Posted by: DrewM at 10:52 AM | Comments (171)
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The good news is that the court is permitting Tea Partiers to collect petitions to recall Menendez. The bad news is that they are staying the actual recall, should it happen, until they rule on the constitutional question as to whether you can recall a federal official -- and I'm pretty sure you can't.

It's a New Jersey appeals court which has ruled on this.

New Jersey is among the states that allow recalls of statewide elected officials. There is no right to recall congressmen and senators under the U.S. Constitution. Besides U.S. senators, the only statewide elected officials in New Jersey are the governor and lieutenant governor.

The court says it would take up the question if the petition drive succeeds.

Here is the problem, as I understand it. A while ago there was a push to get Congressmen and Senators term-limited -- by operation of law.

These efforts were ruled invalid. The theory is that the Constitution itself specifies the two or three qualifications for office, and "has not served more than x terms" is not among them. So judges reasoned that by specifying these qualifications, and no further qualifications, the Constitution intended these would be the only qualifications, and laws which claimed some new qualification -- such as "has not served more than x terms" -- were contrary to the Constitution.

Now any recall attempt has the precise same problem. If the Constitution says that a Senator must be 30 years old, and that's it as far as qualifications, judges will almost surely follow their old rulings and deem that a recall effort has no effect. Because the Constitution doesn't say a Senator must be "30 years old, and shall not have been recalled by his constituents."

Update: I see in that link the Court has blessed congressionally-passed additional burdens on office-holders. That is, they'll allow the federal government to pass additional burdens. But not state governments.

State officials are a different matter. Many state constitutions provide for recall, or else laws have been passed providing for recall, and the courts have generally allowed these.

In case you were wondering why you send me tips about recall efforts for this guy or that guy, but I don't post them, this is why. According to the precedent I know of, you can't do this. You'd have to first amend the Constitution to permit recalls (and/or term limits, and/or whatever other additional qualifications for office you'd like to specify).

Understand I'm not telling you the way I'd like this stuff to come out, necessarily. I hate Robert Menendez. But previous rulings have rejected term limits as unconstitutional, and the same logic should apply to recalls.

Nuance: Maybe this isn't automatically unconstitutional, as I thought. Stevens' majority opinion stated:

Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. ... Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people.

Well! If that's the objection -- that the right to elect (and not elect) federal officials lies with the people, not the state itself -- well, a recall petition certainly is by the people, eh?

Thanks to DrewM. for the link to the US Term Limits, Inc. case, and thanks to Mike for the main tip.

Posted by: Ace at 09:28 AM | Comments (165)
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Gabe laid out the procedures involved in the Slaughter Solution and former Judge Michael McConnell's argument for it's unconstitutionality. While I, and I think most sane people, agree with McConnell, sanity is a relative term when it comes to the law.

Shannen Coffin makes the case for why it's going to be very hard, if not impossible, to get a court to overturn the bill based on a challenge to the Slaughter Solution.

The short version is, courts don't do legislative sausage making. If the Speaker of the House, the President Pro-tempore of the Senate and the President say it was passed and signed properly, the courts generally take their word for it.

The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn't affected by that later decision.

Look at what the Constitution actually says about the passage of bills

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;

Article I, Section 7 goes on about vetoes and overrides but that's the heart of the matter. Notice it doesn't say what 'passed' means. We all assume it means a vote where the majority of members vote yes but that's not actually stated. What it takes to pass a bill is left up the rules of each house and courts aren't likely to get involved in that.

There are a lot of things we take for granted, as being understood and inviolable rules but the reality is democracy requires a respect for institutions, customs and shared understandings. There's no force of nature that ensures democratic norms are followed. The checks and balances of our system help but ultimately it comes down to the willingness of individuals to be bound by them. Get enough people in power agreeing to push past those boundaries and bad things can happen.

The Democrats know this Slaughter Solution won't shield members from the wrath of the electorate, it's likely to increase the anger. This isn't some legislative trick played in the middle of the night on a bill no one has ever heard of. Voters are going to want to know how their representatives voted on 'health care reform', not the 'rule under which the Senate sidecar reconciliation bill' passed. This is not a vote anyone can hide from, it's a bottom line deal...did you vote to screw things up or not? That's what will matter.

By this maneuver the Democrats are showing that they hold the customs of consensual democracy in contempt. While the institutions of government may not be enough to constrain these bastards, there is still one final court of appeal and that's the voters.

Hardcore liberals in the Democratic leadership just don't care about the consequences or what people want or don't want. This is their Holy Grail and they know once they shove it down our throats it's not going to be undone.

There's something fundamentally very ugly and dangerous when elected representatives don't respect the voters or at the least fear them.

Related: House Republicans are going to try and force Democrats to hold an up or down vote on the Senate bill or at least go on record as saying they won't.

Nancy gets a Yes vote to stay Yes.

Added... A few years ago, Nancy went to go to court to stop Republicans from doing something similar, though on a much smaller scale. Good news, we've got her on hypocrisy. Bad news, she lost the court challenge.

Posted by: DrewM at 07:56 AM | Comments (262)
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Ha, ha, ha. Is that a threat or a promise Mr. President?

With Obama's campaign support track record being soooo enviable, I rather doubt this bit of schoolyard "I'm going to take my ball and go home" hooey carries much weight. The caucus already knows they're being asked to be legislative suicide bombers and any Obama "help" campaigning after passing wildly unpopular legislation would just rub salt in the voter's wounds.

The hubris of this man is simply incredible, he really thinks he's still a campaign asset.

[UPDATE]

SUPREME IRONY ALERT: Obama declares 3rd week or March as "National Poison Prevention Week"...as he busies himself with poisoning the nation's economy and health care systems.

Posted by: Purple Avenger at 07:49 AM | Comments (146)
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Big news of the day:

- Wild egghead on egghead action not seen since the legendary slipstick-assisted debaucheries of the 50s.

RIP -- This episode is brought to you in loving memory of Peter Graves. Skeptics have undertaken their own "Mission: Impossible" for the past several decades, and according to at least one Climate Sciencytist, one of the AGW Skeptics biggest names might just be a bad-ass super-spy.

(after the break...) more...

Posted by: Open Blogger at 07:39 AM | Comments (58)
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Wow. That's a heckuvan evolution from "the mob" or "terrorists" or "racists" or "like the KKK" or "evil-mongers" or "they want to kill the president" or "traitors" or "Neanderthals." Not to mention "tea baggers." Those are the things that Democratic congressmen—not just the press or Lefty bloggers, but actual congressmen—called us over the past year, mostly from August to November.

But now, the Speaker's office has issued a pathetic memo on "Tea Party Etiquette", suggesting that the Tea Partiers be welcomed and reasoned with. If you didn't know, tens of thousands of Tea Partiers are expected to descend on Washington today to make their displeasure with ObamaCare known.

Allah suggests that if you find yourself in a Blue Dog's office, you ask about a few things:

Be sure to ask (a) what PelosiÂ’s bribing him with; (b) why, if Democrats are so confident about cost control, they had to rig the estimate on the first decade of costs by delaying the programÂ’s start by five years (in fact, just hand your rep a copy of this); (c) how he/she can be so sure whatÂ’s in the bill when theyÂ’ll be busy writing it right at that very moment.

Other suggestions?

Posted by: Gabriel Malor at 05:54 AM | Comments (220)
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