1

Then they should put this shit in every single bill.

I guess the GOP could change it back with their simple majority right? if they ever get one.

2 They should have put that it requires 100 votes to change it lol.

3 Since when has the Consitution actually mattered?  Just sayin.

4 I will believe they are serious when they start beating each other with their canes.

5 WAIT A MINUTE? But what what is the line between an exception to some sections? When does it run out? 1 section? 2 sections? 50 sections?

6 Hello, Gabe, it's "irremediably determined to be unhappy" here....and this is great stuff. We've got some exposition about the mysterious Senate Rules, discussion of precedent, and English language explanation of some obscure legislative horsepuckey....

I could have researched it myself in a month or two, but you popped it out there and your piece makes too much sense to try to fact-check it.

You're a really knowledgeable guy, and a very talented writer......

......when you're not quashing someone's cries of existential anguish when they comment on one of your posts......aaaaaaaaaarrrrggggghhhh!

7 Okay, so we got it straightened out.

And now, once again, I plead for us, or heaven, or Breitbart, or the damn weather or the Flying Spaghetti Monster, to make the whole frakking thing MOOT.

Kill the bill.

8 We made up our rules on the fly, too.

9 When is a change to a rule only a change to a procedure, and when is a change to a rule actually a change to a rule?

It seems to me that it is only a matter of degree, and I find DeMint persuasive.

In this case, whether this monster is the crime against the nation of  changing a Senate rule, or merely the crime against the nation of requiring a supermajority to overrule a death panel, is academic. 

The monster must be drowned.

10 Hmm... if you can change the votes necessary to alter an item require a supermajority, can you not, then turn around and alter the votes necessary to, say, repeal laws, a minority? Say... only need 40%, and that law is outta here?

Rules are fun!

11 The constitutionality is one thing, and I am sure you could find lawyers to argue both sides on that. In fact the person doing the "bleating" is also a lawyer. However, Demint is right in saying that the rules mean nothing if they can be changed so easily. Why not just pass every bill that way, preventing those on the other side from changing anything in the future? It is as if the Dems know what they are doing is garbage and will be likely overturned, so they are playing games with the rules in order to prevent that. Our pal Gabriel here doesn't seem concerned about that, his first impulse is to make sure we all know that what these assholes are doing is legal and proper.

12 Let's look for a penumbra.

13 The caning incident didn't even result in a censure, looks like anything goes to me.

14 Back a few years, in response to the perpetually late California state budget, I suggested that the normal ">50%" for legislation be changed for every day that a budget failed to pass.

For the first day after the budget's due date, the 2/3 majority for a tax increase would increase by 1%. So, day B would be 66.67%, day B+1 would be 67.67%, day B+2 would be 68.67%, etc. And the majority rule for a spending decrease would similarly change in the alternate direction: Day B would be 50.01%, day B+1 would be 49.01%, day B+2 would be 48.01%....

While this would be very likely to lead to a budget quite quickly (on day 34, tax increases would become impossible -- and on day 50, any reductions in expenditure would require but a single vote), I thought it best to also remind our legislature of their relationship to the people. Not passing a balanced budget by day 51 would be a capital felony for all then-current members of the Senate and Assembly, to be followed within 30 days by the election of new legislators.

That this would allow a strategy where the minority could block a budget for a number of days until the alternative was death, then resign en masse, is more of a feature than a bug.

Considering that we've had 85-day and 106-day late budgets recently, this would certainly provide some much-needed entertainment while providing a useful amount of closure.

15 Did someone call me?

16 All we'll need is an 1850 British headmaster's uniform, a good cane and the world's strongest dominatrix and we are good to go!

It'll be harder to find a Senator who doesn't enjoy it, though.

17 Well we can hope that the language gets stripped out of the bill in conference, and we can hope that a passable compromise doesn't make it out of committee. But Hope Isn't a Strategy. Plan: Get 60 votes in the Senate. I'm pretty sure the math doesn't allow this in '10, but we should be able (theoretically) to get there by '12. Backup plan: Assuming we get control of Congress, we simply strip funding from this monstrosity: Give the committee an annual operating budget of $5.00 and require they start every meeting with a latte from the cafeteria for each member. It'll be hard for them to make any rules when they can't even get pens to write with. What we do when the backup plan goes pear-shaped: Indirect application of high explosives.

18 The Federal Government is a living thing. It does not give a damn about us. We are just tiny things whose purpose is to feed it and help it grow. Senators and Congressmen and others are its willing slaves. Its food is money and it drains it from us, like a vampire talking blood, through the income tax and automatic withholding. As we work to sustain ourselves we also work to sustain it, and we have no choice. If we try to cut off its food supply, we cut off our own. It's it or us.

19 Pay no attention to the above post, eman knows not of what he speaks.

20

Yes, Gabriel, but tell me, doesn't it strike you as being, oh, just a wee bit sleazy that Reid and other Democrats find themselves on such shaky ground on this one that they have had to resort to all kinds of conniving and trickery to force this legislation through?

Call me a poor, dumb, ol' farm boy, but it seems to me that if this legislation was legitimate and in the best interests of all Americans and even the people that it is supposedly intended to assist, there would be sufficient bi-partisan support for it in Congress that it would be a breeze to get that legislation passed ... without all of these sleazy shenanigans that we've been witnessing for months now.

This legislation has to be the sleaziest boondoggle that has ever been perpetrated on the American people by the Congress in the history of this country. It isn't even healthcare legislation. It is a smug and arrogant power grab by unethical, unscrupulous, incredibly sleazy and depraved politicians who have exceeded and abused their authority for strictly evil and self-serving reasons ..., perhaps the most despicable of whom is that two-faced shyster and phony, Joe Lieberman.

(I'm reminded of the sleazy speech that phony and hypocrite gave on the floor of the Senate defending Bill Clinton against impeachment. The guy is a sly, slimy and treacherous shyster lawyer. Only an incredibly stupid Republican would ever put his or her faith in that slimy, little creep.)

21 Basically it doesn't matter if it's Constitutional because no matter what it is it can be undone with a simple majority because a simple majority is all that's needed to change the rules. Once that's done they can amend any law out there, again with a simple majority.

They just pass an amendment to the law that says any mention of a supermajority is now simply a simple majority. Or a super duper majority if that's what they want.

22

Rules are increasingly meaningless, and that should be scary to the libs, too. All that it takes to defeat the supermajority requirement is a move to say to that requirement, "Go Away."

These are the wages of flouting rule, precedent, and Constitution, as the Dems have done throughout this whole sordid affair as they try to ramrod their agenda down our throats. Rules become changeable, based only on power, not morality, duty or obligation. But who's kidding who, these are all foreign concepts to the Dems these days anyway. They're the party of "BECAUSE WE WON" now, and it is out in the open: power. POWER, and all else suborned. God, what an evil party, seduced by the My Precious promises of its false utopian idols. The bastards are the undoing of us all.

23

What galls me are the arrogance, smugness, glibness, officiousness and cynicism of those Democrats. Those conceited, pompous asses now see themselves as being omnipotent. Which is bizarre, considering that each and every one of them is such a loser that they would be earning less than half of what they are being paid now if they had jobs in the private sector. We're seeing creeps, losers, misfits and perverts who have run amuck, drunk with power that they've never had before and which they aren't qualified to have.

Democracy is not what it is cracked up to be. When the imbeciles are in the majority, they can destroy a country. The Athenians learned that lesson the hard way, and this country is learning it now. Human beings are so frail. If God was smart, He would have stuck with the dinosaurs, and stopped screwing around with other designs.

24 I'm not buying that bullshit apologetics.

25 Gabriel seems like a reasonably intelligent and nice guy. But he also strikes me as being so neurotic that his neurosis adversely affects his rationale. I can't put my finger on it, but there is something about him that reminds me of Barny Frank, whose own neurotic thinking adversely affects his rationale, also. I'm not saying that Gabriel is a liberal. I'm just saying that he is neurotic. But I do like his articles..

26 Speaking of changing things in ReidCare, I heard Kent Conrad (D-ND) say on Fox News Sunday that one Congress cannot obligate another Congress, so it really doesn't matter what Ben Nelson was promised "in perpetuity...!"  In other words, you idiot, you fell for it, now bend over... 

No honor among thieves, or something like that.

27 GM says: "ReidCare does not overthrow the Senate Standing Rules, something that--according to the Standing Rules--requires a vote of sixty-seven senators. Rather, it makes an exception to the Standing Rules for a few specific provisions of ReidCare. Making exceptions to rules only takes a simple majority."

Doubleplusgood newspeak.

I don't know if Gabriel is being intentionally mendacious or simply obtuse here. Either a rule is a rule or it isn't. Pointing out that somehow the rules allow their own negation while ignoring just how ludicrous that concept is in the first place certainly implies one or the other. Maybe I can reduce the charge to 'unwitting partisan obtuseness'.

And mentioning that it has been done before is a hollow excuse - to be hyperbolic, murder, rape and robbery have also occurred before, and in many cases the perps have 'changed the rules'  to make the aforementioned acts 'legal' (or at least, 'not in conflict with the new rules') - does that make these activities  O.K. in the future? And I do not care whether the transgressions were committed by Democrats, Republicans, or Space Aliens, it's the issue that is at stake here, not how far around the blame can be spread.

28 I'm not buying that explanation. An exception to a rule is just another rule. Each Congress can make its own rules and attempt to alter previous laws.

29
"What galls me are the arrogance, smugness, glibness, officiousness and cynicism of those Democrats. Those conceited, pompous asses now see themselves as being omnipotent."

Welcome to Chicago, USA, my friend. Where the Democratic Party, with the connivance of the unions and pet corporations, runs everything. Where jobs are disappearing, the middle class is being taxed out of existence, the newspapers are a joke, corruption is a way of life, and the Party never, ever loses.

Me, I'm seriously thinking of moving back to Canada: if I'm going to have to live under socialism, I may as well live in a place where they more or less do it right.

30 Assuming we get control of Congress, we simply strip funding from this monstrosity: Give the committee an annual operating budget of $5.00 and require they start every meeting with a latte from the cafeteria for each member.Ýkinci El Eþya It'll be hard for them to make any rules when they can't even get pens to write with.Ýkinci el eþyalar

31 It should also be stated the no congress can bind a future congress. So any rules made now may continue on, but may not in future.

32 Gee, theres a rule saying a supermajority is required, but that rule can be changed by a vote not requiring a supermajority...everything they say is a lie....they are  lying...

Sounds like an Episode I did a while back...

Also, it would be nice if we didn't have to figure out what Senators were doing/had done with a 24 Second Clock...

33 The Constitution, the most sacred document defining our country and government....when cited, if cited, by the dems is frequently twisted to fit their agenda by announcing it is a "living" document, thus open to all kinds of mischief.  I suggest we apply that standard to ANYTHING this congress passes.

34 The good news is that there's nothing unusual about this.  The bad news is that there's nothing unusual about this.

35

Well, I think it just makes it more interesting for the future Republican majority in congress.

Macy's is always sending us crap about the latest "One Day Only Sale"... well, when the Republicans take back congress they can, as you say, by simple majority, pass a one day suspension of the supermajority rule.  Declaring that 51 votes constitutes a supermajority for the next piece of legislation only.  Then repeal Reid-care back to oblivion, take the taxes thus far collected and put them toward the National Debt.  Tell the Insurance companies that they're back in business and then we call sit back and watch Mr. 'Thrill up my leg" spontaneously combust.  What fun!

Mikey

36 The filibuster has been used by the GOP twice as many times in the last 2 years than at any other time in our nation's history. The GOP has of late been about as effective as the "JUST SAY NO" program was in the War on Drugs.

37 Think about it; the simple but thoughtful debate that has gone on here does't even happen in Congress.

38 And of course the GOP is now fillibustering funding for the troops, holding our troops hostage for political gain

39 All this means is that when Republicans regain control of Congress and repeal this thing, the Dems will try to tie it up in the court system for years and the federal employees will back them up regardless of the wishes of the President or Congress.

I would suggest that rather than just repealing legislation, it ought to be a priority of any future Republican government, i.e. when Republicans control Congress and the White House again, that they change the Civil Service rules so that anybody with a grade above GS 5 serves at the pleasure of the President and can be fired for any reason or no reason.  This will encourage cooperation.  Over the long term, it will result in Democrats mass firing long term government workers when they get elected in order to fill their jobs with political hacks (Remember the White House Travel Office scandal?).  This will alienate hundreds of thousands of government workers and their families from the Democratic Party as well as making the government run even less efficiently than it does now.  The next cycle where Republicans get back in power, they can reduce the number of government positions after firing all the Democrat appointees and hire a few competent managers (as well as a much smaller number of political hacks).

40 Declaring that 51 votes constitutes a supermajority for the next piece of legislation only.


Pass a law making 51 the legal equivalent of 67.  Like Indiana's legislature declaring pi to be 3.  There's no mathematicians or scientists or engineers in the Senate; constituents trained in feelings-based math will have some feelings but be unable to put forth any coherent, logical response.

Mikey, you're brilliant.

41 Reid-care itself is unconstitutional - to say the obvious.

42 So making a new rule requires 2/3, but changing a rule, or making an exception to a rule (which is in real terms a "new" rule), doesn't? Oh, such bullshit. DeMint has a point.

43
"Bleating"?!

GFY malor.

44 explain this to EVERY SENIOR YOU KNOW. The cuts are REAL. They are gonna happen, rationing is REAL it is gonna happen, the iMAB panel will set the template for what is and is not covered nationally.

45 So if a simple majority can vote an exception to the rules, why can't a simple majority vote another exception to the rule, rescinding the first exception.

It seems to me that a system that does not have such reciprocity is seriously ripe for hacking.

But then again, look where we're at.

46

There has been some bleating ...

That wasn't necessary and calls into question your judgement on this issue.

47 It seems to me DeMint is objecting to the idea that future Congresses can be bound by these rules, which is unconstitutional.  There is simply no reason to insert such language into the bill other than a naked power grab on the part of the Democratic majority.

48 So all you do it make a future amending phrase that first changes the language of the 67 vote requirement.

49 Is there anything in this health care scam that is not a shit sandwich? In any case, any rules passed by the current congress dominated by communists can be undone by the next congress when most of the communists are thrown out.

The problem will not be the "rules" since they can be changed. The problem will be getting the communist in chief to sign the bill without the need to override a veto.

50 Gabriel sounds like a typical senator bleating his justification-at-any-expense from the podium while the 800 pound gorilla tears the room to shreds.

51 Cat Skinning 101 (with apologies to Tom Wolfe) "You know what makes this baby go? Funding. That's right, no bucks, no Buck Rogers!" We just have to avail ourselves of the tools bequeathed to us by our ancestors. Those hated dead old white guys who built checks and balances into the Constitution. Opportunities for mischief abound. By gaming the budget reviews of the CBO the Democrats have set up a potential fatal flaw in the bill. The easiest path would be to use the House's power as the body required to introduce revenue bills. Possible avenues of attack: deny funding to HHS for any or all of the infrastructure proposed in the current bill, repeal the taxes used to create the revenue streams. There is no power in the federal government that can force the House of Representatives to spend money.

52

I think it opens up a lot of possibilities for the future.  For example, when the Reps have a 52 vote majority, they use reconciliation to pass a law saying the all Democrat senators have to use the same broom closet as an office due to budget restrictions.  And also that yes, they can have staff cars, but all Democrats have to drive used Yugos. 

After that, we can talk about supermajorities and House Rules. 

53 I see we've got another brilliant AOS post taking us a little closer to little green assholes. 

On a related note, as someone said here earlier this week, if you pass one of these guys in the Senate offices a simple go fuck yourself would suffice quite nicely.  All the little bitch niceties should be out the window, forever.  Make these assholes feel like the scum that they are.

54 And of course the GOP is now fillibustering funding for the troops, holding our troops hostage for political gain

Please learn some math before commenting.  The GOP can't filibuster.  They only have 40 votes.  It takes 41 to filibuster.  Unless at least one Dem crosses the aisle, there can be no filibuster.

55 The provision I read said any consideration would be out of order in both the House and Senate.

I don't know the precedents for this as far as saying the parliamentarian is right, but in terms of how I would look at it as a Supreme Court Justice and the Constitution:

1) References to Senate rules should not be codified in legislation.

2) A senate rule (or procedure, to use the term the Democrat side prefers here) would not require passage by the House and signature by the President and would not affect both houses simultaneously.

I'm pretty sure there is a doctrine about binding future Congresses--which this does--to keep a simple majority from saying no future Congress can ever undo this, but a quick Google can't find it. And I'm too busy to spend more time on this today.

56 And of course the GOP is now fillibustering funding for the troops, holding our troops hostage for political gain

Go fuck yourself you sniveling little cum gobbler.  One, the Republicans don't have enough votes to filibuster and two, are they trying to delay a defense only bill or a defense bill with a bunch of liberal horseshit in it that has nothing to do with national defense?  Ass fucks like you should be put on a raft with a bottle of water and dropped into the middle of the pacific ocean. 

57 This is why people hate lawyers.  You get silly, nonsensical crap like this.  It takes 67 votes to change a rule unless we call it a procedure then it only takes 60 or maybe 51 blah, blah, blah.  It doesn't change the fact that someone should have had enough balls to physically kick Reid's ass on the Senate floor for even proposing such a thing. 

It also doesn't change the fact that no future Congress is going to feel itself bound by this bullshit.  If they don't like something a Death Panel has done they will simply ignore the super majority requirement or pass separate legislation repealing all super majority requirements or they will strip down naked and do an interpretive dance and the parliamentarian will rule that it is sufficient to repeal the DP ruling as long as he gets to take a trip to Bermuda.

No one even pretends that this has anything to do with the law, or the rules of the Senate or the Constitution anymore.  They just make it up as they go along.

This is why they are held in such contempt.  It isn't that we don't understand what they are trying to do or how they are trying to justify it.  It is that we are rightly disgusted by it.

We are going to have to start from scratch because I don't see any part of our present system that is salvageable.  It has been so perverted from its original intent as to be unrecognizable.  What else are we gonna do?  Pass an amendment to the Constitution which says "and we really mean it this time?"

58 Alll this means is that Ol Harry plans to shove his Reid-Pelosi-Obamanation up the nation's backside with a spear gun with barbed points--it's stuck there and you can't pull it out.  I do think I'm going to stand in line--twice--to piss on Harry's grave.

59 Posted by: sheik Yamani at December 22, 2009 08:28 AM (mhD2v)

Good old john ryan.  Stupid under any name.

60 Just as a side note, I don't respect any solution to this or any other governmental issue (Health care, the auto industry, illegal immigration, etc., etc,) that involves MORE rules. I want less rules, less laws, less power and money concentrated in the government, and the few, absolute minimum laws and rules that are left over to actually be enforced. Of course, with liberals around, either of those wishes are pretty much out of the question.

61 I call for pitchforks.

62 Though I do not advocate secession, if and when a people of a state make the reasoned choice to take that step, they are probably going to have my services at their disposal.

63 Horatius, not until now did I ever imagine it.  But now I do.  I'm so pissed I just want to slap the shit out of each and every liberal I see today.  It pains me to think that I have to live side by side with these fucks.  Luckily, where I live and my group of friends include no liberals that I know of, so perhaps I don't go to jail this week.

64

RULE #1: Democrats are always right

RULE #2: Fruck the Constitution.

RULE #3: Republicans are murderers of minorities, children, puppies, kittens, and grandmas.

RULE #4: If somebody declares Democrats to be wrong, see Rule #1.

RULE #5: If somebody declares Democrats to be doing something unconstitutional, see Rule #2.

RULE #6: If Republicans try to do what the Democrats have done, see Rule #3.

65

time after time Gabe defends the Statists and then claims he is not one of them.

 

66

Gabe's not a statist, he's just a lawyer.  Like most lawyers, even conservative ones like me, he's got half his brain that tells him what is logical, right, ethical, moral, and Constitutional based on an original intent view of the Constitution, and a good knowledge of history.

The other half of his brain, like mine, understands what Constitutional law has become over the last 220 years:  illogical, wrong, unethical, immoral, and un-Constitutional, based on a "living Constitution" view, and absolutely no knowledge of history.

Gabe probably doesn't like what Con Law has become; I sure don't.  He's just explaining what it very unfortunately now is:  A complete mess that will end up destroying the country it is supposed to undergird.

67 I went to the Library of Congress website and did a search for the text "it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection." The Reid Amendment is the one and only bill that contains this language. I do not know how Mr Malor searched and found "similar" language in other bills, but until he can cite an actual example, I am going to assume that this passage in the healthcare bill is exactly what it seems to be - an outrageously arrogant and unprecendented power play that is contrary to the Constitution and the Senate's 2/3's rule. 

68 It's not unconstitutional, but then the Democrats have been shredding the document since 20 January 2009.

69

"It's been done more than once before without (as folks are now muttering) revolution. It's shameful and sleazy, sure. But it's not unprecedented."

You could say the same thing about a lone gunman. 

 

(okay, I am NOT advocating that! just pointing out the moral equivalency)

70

Hmmm... the question then becomes, Can a RULE over rule the Constitution?

Yes, the precedent from the past is there, but has it ever been tested?

And the better Constitutional arguement agains the "death panel" provisions is that it has a total lack of "petition for Redress"... as you can't sue these guys, or the insurance companies who follow their reccomendations...

71 typo "unconstitutional"= constitutional.

72
YOU JUST PUSHED DOWN A FRESH FLAMING SKULL (like it was a fat woman) FOR THIS???

73

Gabe,

Someone made an argument and you are making a counter - with pros and cons on both sides.  Why do you have to say they are "bleating"? If they are, then so are you.  Being a lawyer, you are probably a dick anyway; no need to prove it beyond a shadow of doubt.

 

74 All they have to do is pass another rule change to undo that one.

75 Sharkman is right. Gabe is performing a reasoned analysis of an unreasonable thing. Jumping on the messenger doesn't change the message. And Jesus H. Christ on a pogo stick, Malor, why do you keep posting when you get all this vilification?

76 I have this fantasy wherein all members of the Congress and the Senate must be strapped into their chairs in order to vote.  On anything other than the 1 paragraph repeal of a previous piece of legislation a yes vote puts you in a random pool of seats that has a large spike driven straight up through the bottom of your seat. Sort of a legislation by russian roulette.......let's make sure these fucks really know what it means to 'serve' their country.  Put your life on the line for your wonderful shit-sandwiches you bunch of goat-felching twatwaffles.

77 Nice of you to spend 2 days defending the constitutionality of the corruption of Senate Democrats Gabe.  I am sure they appreciate your gargantuan effort on their behalf.  I am sure it doesn't occur to you that this nonsense over the rule change is dwarfed by the constitutional violations in the bill itself.  Perhaps you could give us a dissertation on that, or, you could fuck yourself too. 

78

Bad news or not, your brain should be funded as a stimulus package.

79 Has there been a case which has said it is constitutional?  You can write any bill you want.  "Constitutionality", however, is what is determined when the matter actually gets tested by a case.  If there is no such case, we are engaged in speculation only.

80 Lloyd! You can't triple stamp a double stamp!...you can't triple stamp a double stamp!...Lloyd,....Lloyd....you can't triple stamp a double stamp!

81

Why do you have to say they are "bleating"?

Quoting Erick: "We Are No Longer a Nation of Laws." Yes, it was a bit harsh. But given the panicked threats of revolution that post engendered, I'd say there was bleating.

Malor, why do you keep posting when you get all this vilification?

I also get a lot of "atta-boys."

82 This bill requires an superduper majority to overturn:
All funding for every aspect of the government except the military, FBI & CIA shall come directly from Democratic Senators and congresscritter's personal fortunes.

Well, they write conficting crap all the time.

83 Rush just mentioned a section of the HCB which basically says that what is in that section CANNOT be rescinded or changed in any way.  Rush says this is a rule change, flat out?

Hear anything on this, Gabe?

84 It's shameful and sleazy, sure. But it's not unprecedented.

And that, to a lawyer, makes everything OK!

85 Posted by: Ken Royall at December 22, 2009 12:15 PM (9zzk+)

Knock it off.  Gabe's 100% right.  Except in that he looks for precedent.  Plain language is enough.  The Senate can set a rule that they need unanimous consent to start business. 

Precedent's more revealing in answering whether this violates Senate rules.
It defies logic to put in a rule in that requires 2/3rds vote that can be approved by less, but most of these guys are lawyers and logic was too hard for them.

86
LOL! - Nelson Says More Senators Seeking Special Treatment in Light of Nebraska Deal.

Democrats: "Hey - we want to Rape America Too!"

87 And that, to a lawyer, makes everything OK!
Posted by: Rob Crawford at December 22, 2009 12:23 PM (ZJ/un)

No, it just means it's out of their hands.  It's a political problem.  It's our problem.

88

Quoting Erick: "We Are No Longer a Nation of Laws." Yes, it was a bit harsh. But given the panicked threats of revolution that post engendered, I'd say there was bleating.

We're not. Seriously, we're no longer a nation of laws. We're a nation ruled by decree by a body that goes through the motions of advise and consent, but in the process passes laws that haven't been written, let alone read. When someone finally gets around to putting those laws down, they amount to a laundry list of things the executive branch now has control over.

We're not a nation of laws. We're a nation ruled by lawyers. It's not the same goddamned thing.

89
No, it just means it's out of their hands.  It's a political problem.  It's our problem.

Except that if lawyers had done their duty to the fundamental law of the land, rather than grubbing for every penny and every perk of power they could, Congress would be completely aware that the very premise of this bill is forbidden by the Constitution.

90

Con Law?

Never heard of it.

91 I think Gabe is performing the first part of Truth, Justice, and The American way. Which is why it makes me so hot. He's not in trial here.

92 "Knock it off.  Gabe's 100% right.  Except in that he looks for precedent.  Plain language is enough.  The Senate can set a rule that they need unanimous consent to start business. "

No, he is not 100% right.  This is an ongoing issue and he does not have the final say or even the most educated opinion on the matter.  If he did, he wouldn't be posting here, he would be making big bucks trying cases before the Supreme Court.  And no, I don't need to "knock it off", I can say whatever I please.  Gabe too often is an apologist for people that are destroying our country and I am not the only one who has noticed it.

93 I am second to none in my loathing and disgust for the corrupt legal profession, their disproportionate power, their weakness in punishing their own, etc.

I've proposed a number of remedies: Judges must have had a significant non-legal career and education, single-payer for lawyers (I love that one), surtaxes on legal fees, rules against holding elective/appointed office, etc.

It is outrageous that holding an Ivy law degree (which requires no math) conveys some sort of level of elite ultra-smartness and that foolish voters think that these people are not your run-of-the-mill wussmanities majors.  I don't think the most well-paid lawyer should make a dime more than an average CPA.  Justice Scalia himself is dismayed that he sees so many bright lawyers because they should be off doing something productive.  The legal profession provides no productive good or service.  It is merely economic friction.

Still, the legal profession has honest and intelligent people and I think that all 6 of them would agree with me that the problem with getting ideas to the public is the media.

94

Has there been a case which has said it is constitutional?  You can write any bill you want.  "Constitutionality", however, is what is determined when the matter actually gets tested by a case.  If there is no such case, we are engaged in speculation only.

U.S. v. Ballin on the Senate's power to change its rules with only a simple majority.

95 And no, I don't need to "knock it off", I can say whatever I please.

And I can tell you to knock it off.  First amendment goes both ways.  You can consider it chastising or you can consider it friendly advice.

96 Gabe, I don't get the appeal to precedent.  Precedent can be changed.  It's a ratchet.  We appeal to precedent.  They change it.  Then there's a new precedent.

Stare decisis is Latin for "perpetuating stupidity".

97 Heh. Amish, I looked it up because both DeMint and Erickson were saying things like "this has never happened before." They were wrong.

98 So yes or no? A future senate can change its rules or procedures to say this bill doesn't require a super majority after all.

99 Amish, I looked it up because both DeMint and Erickson were saying things like "this has never happened before." They were wrong.

Ah, OK.  Still, Democrats don't get called out on being wrong, so maybe we let that one go...

In principle, then, the Senate could shut down in perpetuity by getting 60 votes to change a rule that you need 100 to do business, right?

100 Gabe, I don't get the appeal to precedent.

Precedent is what lawyers use instead of morality.

101

In principle, then, the Senate could shut down in perpetuity by getting 60 votes to change a rule that you need 100 to do business, right?

That observation is going to keep me warm tonight when I fly into D.C. at 11:58pm.

102 It is basically a fundamental assault on the idea of popular sovereignty, as well as Thomas Jefferson's ideal that the Earth belongs to the living and not the dead.

For you see, the *other* document that fundamentally bound future generations on what level of majorities were needed to change things was also one that was sent to the *people* for ratification--and that allowed the *people* methods for changing said document outside of Congress. Thus, if the backers of this bill are willing to adopt that methodology, I withdraw my objections.

If not, then, not being a lawyer, I have intention of treating this as a lawyer does. Now, I understand what may have been the intent here--to shield something that needs shielding from political influence. And I'm sure whoever came up with it thinks it statesmanlike. But...the fact that such an attempt must be made, and the fact that it could (and *will*) be used to prevent repeal of the entire law, tells me that a.) fears about political machinations and special interest group lobbying impacting healthcare are considered so valid by even its proponents that they have decided to put in something limiting that natural tendency (a tendency, incidentally, that they continually deny is even remotely a possibility, scoffing off fears of politically-motivated death panels setting life-and-death priority decisions as scare-mongering, except it apparently is now such a danger that we have to make sure that the evil Congress does not play around with healthcare in the future, not that Congress would play around with healthcare, else we wouldnÂ’t pass this bill, but if they do play around with it, we have this supermajority requirement to prevent them from playing around with that which canÂ’t be played around with and wonÂ’t be played around with, for if it could be played around with we would never countenance voting for it, and to make sure it canÂ’t be played around with we will tie the hands of the people most likely to play around with it, who are the same people who will also tell you is insanity to think that it could ever be played around with in the first place.), and b.) they have no intention of allowing the people anything more than "one vote, one time" on this bill.

If there were no fears of something being used in a "death panel" way, there would be no need for this clause. Since there is, the law should not be passed. The law is objectionable, the clause is objectionable, and the way it is being passed is objectionable, and thus I object--for I am not a subject to some liege lord in Congress, to be bound, myself and my dependents, in usufruct, for all generations to come, as a serf is bound to the land.

If the Democrats truly believe this supermajority provision is warranted and a tactic of legislative merit, then I cordially invite them to retrofit it to all previous laws, including such as the 2001 tax cuts (though I don't think those would be amenable to this), since it is within their power. Elsewhise, the fact that it must be used says that perhaps it is a power the government should not have to start with, for it is such a creature open to abuse that we cannot countenance even the people themselves having their normal rights with it.

103 Republicans can kill this bill and every socialist bill since 1913 if they want with one page of legislation. Also any future congress can simply refuse to fund any of it. And when the marxist in cheif vetoes' it, override the veto.

104 So Gabe, you're saying that as soon as Republicans regain control of the senate, we can clad all of our legislation with 100 vote supermajority bullet-proofing with a simple majority and there'd be nothing the democrats could do about it? Hells yeah! Now if we can just figure out how to twist that into a law requiring all Democrats be deported to Somalia, we'll be gtg.

105 Since the Constitution also gives each House the right to judge the qualifications of its members, why can they not also say that incumbents must be defeated by 60% before the challenger will be seated?

106 Horatius, it would conflict with Article 1, sec. 2, cl. 1, which says that the people of the States get to chose their Representatives.

107

That observation is going to keep me warm tonight when I fly into D.C. at 11:58pm.

Posted by: Gabriel Malor at December 22, 2009 12:58 PM (B2LxR)

Is this the "no givsies backsies" clause in the bill?

108 Thank you for taking on Erick Erickson.  I'm sure it's not personal and all, but that guy's a total douche.  His vision of a scorched-earth Republican party is a recipe for certain disaster.  And, he thinks he's always right because he went to law school, even though he frequently misreads statutes and Supreme Court cases.  Also, he is a terrible judge of success in politicians.

109 "The GOP has of late been about as effective as the "JUST SAY NO" program was in the War on Drugs."

And as proof of that, "john ryan" returns to AoS to post again.

110 I've proposed a number of remedies: ...

Posted by: AmishDude at December 22, 2009 12:42 PM (T0NGe)

 

 

 

All you need is one remedy, really.

111

Lot of space devoted to red on red.  Yeah, this is really helpful.  Do MediaMatters job for them. 

112

I'm not terribly worried about any "67 vote" requirement; as a practical matter, 67 votes will be needed, as usual, to over-ride the veto of any efforts to flush Obamacare.

As for the "It shall not be in order ..." language, again, little problem. The Senate may pass a rule declaring any such language null and void, then handle any such bills containing such language as they see fit.

That the Senate will either ignore "It shall not ..." crap, or pass such rules as needed to handle such crap seems clear. The recent retirement wave (read as "I',m not going to run again") in the House, and todays blue-to-red switch shows which way the wind is blowing.

Now, to today's business.  When does the Senate start investigating Harry Reid for influence peddling and bribery?

I'd very much like to know where he goes to work after his failed re-election, so I can put pressure on his employer and/or the businesses that utilize his employer.

113 RickS: Erick Erickson is the king of red on red.  He seeks to destroy what does not fit his personal litmus test.  DeMint fits it, and anyone that points out a consistency in his personal vision for the Republican party is out.  His vision isn't even consistent with conservative ideology; it's completely personal for him.  Especially if someone corrects his outlandish "UNPRECEDENTED" FIRE, HELL OMG!!1! statements.  He's like the Olbermann of the conblogosphere.  Gives me the douchechills.

114

Hey, morons? Get off Gabe's dick. He's right.

Let's analyze what's going on here:

There has been some bleating about a provision of ReidCare which makes it so that certain parts of the act can only be changed by a supermajority vote.

How is that constitutional? It is just like the filibuster. Only 51 votes are needed to pass the amendments, but internally, the Senate is deciding that it will not consider certain business. The Supreme Court is quite clear that it wonÂ’t meddle with the internal operations of the House and Senate.

And for good reason. It's not unconstitutional because Article I, sec. 5, cl. 2 says that the Senate can set its own rules; and to set rules only requires a majority vote. Erick mentions the filibuster; you won't find that in the Constitution either.

What this is, is basically the Democrats setting a "nuclear option."  The reason why the nuclear option was a viable plan in 2005 was because GOP senators had the power to change intra-chamber rules vis-à-vis judicial filibusters; this time around Democrats have that power and they intend on making sure the guts of this bill still last even if they lose 11 seats or more in 2010.

So can it with the fucking "apologizing for statists" horseshit.  It's not cozying up to the nanny state's teat to report what is.  He's just saying this isn't a viable argument against the bill, which is just as well because it's too wonky for most people to understand.

God damn it, quit shooting the fucking messenger.

115

 

This is all very interesting, but how can this langauage possibly bind future congresses? How can the Democrats enforce this rule?

If the Republicans gain control of Congress in the near future and introduces legislation to modify or repeal this particular section of the act, in putative violation of this new rule, they have several options. First, the presiding officer can rule that this prohibition is void because (in the opinion of the Presiding Offiver of the Senate) it  really was a change to Senate Rules that was not validly enacted by a 2/3rds vote. Alternatively, the Republican majority could vote to suspend the application of the prohibition to their proposed legislation. They could do this by a simple majority vote, using the Democrat's own parlimentary ruling (that it is an "exception to the rules" and not a change to the rules) as precedent.  Finally, whichever party owns the gavel in the Senate always has the option of dropping the nuclear option on any and all rules by a simple majority vote.

116 Now, some will use the objections to this clause to attack the filibuster. But I believe in the filibuster, and do not feel any embarrassment of hypocrisy. This is for two good reasons.

The first is that the filibuster is a creature of the here and now. It does not bind future generations. If defeated now, it is defeated now. If not defeated now, it may be so defeated after the next election. But once the floor vote is allowed to proceed, the floor vote is, quite appropriately, a majority-rules item. Thus, the filibuster allows the minority to slow things down, but not to permanently rule in positions of inferior strength. This is because there will always be legislators—as long as the sprit of reason has not been totally overwhelmed by spirit of faction—who will not favor a bill but may favor it coming to a vote.

The second is that there are actually two ways to defeat a filibuster. The first is the cloture vote, and I heartily approve of the 3/5 requirement. But the second is that the filibuster is merely a refusal to end debate—and thus a filibuster can also be defeated by forcing the minority to continue its tactic of debating without stop. For as soon as the minority yields the floor the filibuster is ended. In other words, the minority must show that it is willing to thwart the will of the majority by a continual display, not merely take a vote one time and move onto the next thing.

Now, it is true this is rarely done anymore. But the power remains to *force* it to be done. Thus, the filibuster, if done by the minority, is not entirely a cost-free proposition, for it forces the minority to willingly be seen as bringing the entire Senate to a halt—to willingly be seen as “do-or-die” obstructionists. Thus, the filibuster has a built-in mechanism to insure that a minority party—presumably having some desire to return to the majority—uses it only in cases of the utmost importance, for it does impose a cost. The filibuster is a good for the Republic, by allowing a minority that is also a very strong minority, to have some influence on a bill. For people are not angels, and if they know they have great strength, may find ways to use it if they are continually treated with disregard by those who may outnumber them by only a mere handful of votes and who treat slim majorities as great mandates from heaven. The filibuster allows a minority of troublesome strength a way to have a say, without ruling the day.

Requiring supermajorities for legislation is not a good for the Republic, for implies that such legislation is of such import as to fundamentally be not legislation but amendments to the Constitutional framework of the government, even if they be not actual amendments. And thus, if the backers of the healthcare bill view it as such a fundamental change in the form of American governance as to require a supermajority to oveturn part of it, then it *is* essentially a change in the American form of governance that should require the same percentages and method to pass as a Constitutional amendment does—supermajority in Congress, ratification by the states. Elsewhise, what the proponents are really saying is, once again, “one vote, one time” and "we know better, and we will rule you."

117

Not unprecedented. Horrifying, sure. And it's not that I'm saying "no big deal", as he writes. I'm saying the objection should be to the substance of the bill, not the procedural sausagemaking.

If you really mean that then how about spending as much time making that objection as you've spent criticizing others for noticing this issue?

118 107 Horatius, it would conflict with Article 1, sec. 2, cl. 1, which says that the people of the States get to chose their Representatives. Posted by: Gabriel Malor at December 22, 2009 01:16 PM (B2LxR)

Article 1, sec. 5, cl. 1: "Each House shall be the judge of the elections, returns, and qualifications of its own members." I rest my case.

119 Basically, looking at my post #119, it points out that the Constitution is not an absolutely perfect document. That is perhaps the greatest potential for abuse of power I can find in the entire thing, and it is substantial. And thus, while this clause could be changed if it ever became a problem, it does highlight the wisdom of what J. Adams said--that for a Republic to endure, virtue must reside amongst the people. For the only reason this little trick I have pointed out has not really been used in banana-republic fashion is because the people would revolt. But with the increasingly level of sophomoric trickery and sophistry we see these days, it is only a matter of time...unless we clamp down hard on minor violations of the spirit of the laws when they occur.

120 Please spare me the blithering 'precedent'. If it was ever illegal then it is still illegal. The Senate is just making shit up. The fact that we EVER seated DemocRATS after the Civil War still astonishes me. They were traitors in 1860 and they are traitors in 2009.

121

Basically, looking at my post #119, it points out that the Constitution is not an absolutely perfect document.

No, Horatius. It means we must read the two clauses together.  They are both perfectly capable of being reconciled--that is, read in a way that they both can be upheld. We should, to coin a term, "homogenize" them.

122

_teehee Sausagemaking! Sausagemaking!

Gabe said "Sausage"!

123 Posted by: Gabriel Malor at December 22, 2009 02:03 PM (B2LxR)

Since when has consistency of thought stopped either a politician or a lawyer from using the plain language of the law to do as he wishes with it? You know very well far more has been pushed on far less clear language than that which I cite. The only reason what I originally suggested has not been done is because the villagers would march on the castle (and perhaps personal scruples). I am done debating the issue.

Though I will say in the same spirit and thoughtfulness with which you have addressed me, lawyer, that I am still right, and you are still wrong, and you are only relying on the credential of  "lawyer" to win the day--not the plain meaning of the words themselves. The Houses of Congress *can* choose who they wish to seat, and there is precedent for precisely that (Berger). I'm aware of what the Supreme Court says--but that usually carries little weight with me, the Court being merely men, and the language being plain and clear, and the ability of the Court to do anything vis a vis Congress being overturnable via revision of Title 28 (if I have the correct title). For the Courts have also said that the Founders who started revolutions and saw countless other revolutions in their lifetimes started by common people possessing guns in their households obviously meant nothing of the sort as personal ownership and something completely different with the Second Amendment. Please. The Court is not and never will be the final word. There is *never* a final word. The people--of which I am one--always have the right to look at the original document and say--"The establishment is wrong, the common consensus is wrong, because the words are plain and clearly mean X, not Y." And if we ever lose this, then we lose the Republic. So I will continue my self-tutored Constitutional interpretation, thank you.

So we have conflicting clauses in the case at hand. A proper reading would say that there is flexibility built into the system, and that the clause I refer to is so that Congress does not have to seat the product of a rigged election from a corrupt state--does not have to be complicit in the corruption. I believe this has actually been an issue in the past--though perhaps not successfully resolved (my memory is hazy on the issue---I am merely an intelligent citizen, and not of the overlord class...). 

But once again--more has been pushed with less by those with clever minds, and so the threat remains. Remember "penumbra". Thus, I stand my ground. We have conflicting clauses. The people get to elect their representatives. Congress gets to judge those elections and the qualifications. A clever lawyer would take that and run with it, just as has been ran before. Penumbra. Only virtue of the people causes it not to be done.

And thus I close. You have a very nice day.

124 Couple on interesting posts on this over at Volokh as well, Gabriel.  Just FYI.

125

"It's shameful and sleazy, sure. But it's not unprecedented." 

This sums up the problem.  We have a lawmaking body that has become professional at making laws.  Not following, or enforcing, or anything else.  Just making.  So they sit around making laws all day.  What difference does it make what the law says if you can just make another one to change it?  What difference does it make what the law says if you aren't going to follow it anyway?  It only matters that it says what you need to get the deal closed today. 

I like the spiked-chair idea.  We need to cut out the professional lawmakers and get some citizens in there. 

126 A game where one side makes the rules isn't worth playing.  It didn't work out too well for the French Aristocracy, but people who refuse to learn from history are doomed to repeat it. 

127 Buy stock in Dr. Joseph-Ignace Guillotin Manufacturing Company.

128

The difference between this and all the other precedents you point out Gabriel is that they are ONLY regulating themselves in those other precedents. In this case they are saying that the Senate has limited power over a group of bureaucrats that the bill turns loose. It would be like passing a bill that gives the DEA full power to determine if somebody should be able to own a gun and write their own rules on that, and also put language in the bill making it impossible for a congress elected later to reign the DEA in, whether elected to do that or not!

All the other times this has happened they were only affecting things ONLY congress controls, thus elections can change who it effects. In this case, even a new 55 conservative Senate would have no jurisdiction over a bunch of unelected officials that previous legislation set loose on the people.

129 Ace, the question is not if these previous bills passed by simple majorities.  Demint was pointing out Senate Rule XXII requires a 2/3 vote to change or amend the rules, and that has been respected by the Cloture vote, not the final vote.

So with these previous bills, were the Cloture votes 67+, or merely 60+?

The idea a restriction "It shall not be in order in the Senate" is not a Senate rule is absurd.  Points of Order are parliamentary rules.  The President of the Senate was just doing Reid's billing.

130

Basically it doesn't matter if it's Constitutional because no matter what it is it can be undone with a simple majority because a simple majority is all that's needed to change the rules.

Posted by: Rocks at December 22, 2009 02:28 AM (OOgDc)

OK, wait.... so is it a rule that it only takes a simple majority to change the rules?  Can they change the rule so that they can't change the rule, or not?

I think I just broke my brain.

131 Excellent legal research, GM.

But...how exactly does this help conservatives or Republicans again?

Oh, wait, it doesn't.

Thanks anyway!

132 Sorry, but when an allegedly "conservative" blogger (with well-known liberal social views) who writes for a conservative blog goes out of his way to do a shitload of legal research in order to write a long, boring post about how ignorant a conservative Republican Senator and a prominent conservative Republican blogger are...

Well, let's just say that it's somewhat odd.

You expect this sort of post (HURR DURR stupid Republicans are "bleating" but don't know what they are talking about HURR DURR) on a left-wing blog. But you don't expect it on a conservative blog.

Prediction: GM will do either the full-CJ or at least a half-Frum by the 2010 elections.

133 Gabe: Have any of these preious "precedents" been challenged in court? Have they been upheld? IOW, did a later Senate try to reverse those things with a simple majority, and get rejected? If not, these are not meaningful "precedents", no?

134 "Making exceptions to rules only takes a simple majority."

so you could put in a bill that every bill proposed on a thursday requires 99 senators to ammend; or every bill with a vowel requires 101?  the constitution allows each house to set their rules, but to say exceptions are not rule changes is non-sense.  the SCOUS won't (and shouldn't) interviene; but a simple majority WILL change this if it passes (passes 2009/2010 ammended with extreme prejudice 2010/2011)

135 So, basically the GOP needs 51 votes to change the rule back and remove the Reid change.

136 This is a great post. Thanks so much for sharing, like always.

137 سلم الرواتب

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