When Congress Cheats on Its Rules

John Armor

We are apparently at crunch point on the efforts of President Obama, Speaker Pelosi in the House, and Majority Leader Reid in the Senate to pass by whatever means necessary the "health reform" bill. In the national debate, however, no one has asked whether the Supreme Court has any role in this matter. It does, and it may be definitive. There is a question of what the bill is, since there are many versions, and several are under wraps. The opponents of the bill, whatever it is, includes Democrats and Republicans who believe that the bill is ill-thought takeover of one sixth of the national economy that will increase the cost of medical care, decrease its quality, and severely damage the national economy.

But this column is not about the merits or demerits of whatever is in the bill. It is about the methods being used to push it through Congress and the consequences of ways of getting around normal, legislative passage (Article I, Section 7, U.S. Constitution).

At this point, it looks like the House will use the Slaughter Rule to "pass" it through the House without ever having a vote on it. The about-to-be-invented Rule is named for the Congresswomen who is the Chair of the Rules Committee and came up with this idea.

Provided that the House passes the bill, then the Senate is expected to pass it by majority rule under "reconciliation." This is a known process under a Rule proposed by the Dean of the Senate, Robert Byrd, in the mid-1980s. It was developed to prevent budget bills for spending from being tied up by filibusters in the Senate. It does provide for passage in the Senate by majority vote.

However, it also provides that any provision which is not primarily budgetary cannot be included unless it is approved by three fifths of the Senate. That works out to 60 votes, the same as the filibuster rule itself.

Well then, who is it that decides whether a given provision in the bill is budgetary, or not? That would be the Parliamentarian of the Senate. When such arcane questions arise in the Senate, the Parliamentarian is asked to give his opinion. But then, the person in the Chair, the Vice President unless he has given up the Chair to someone else, issues the final ruling.

Even then, the process is not quite done. Any Senator can appeal the ruling of the Chair. The body then votes by a majority to uphold or reject the ruling of Chair. So let us assume that Vice President Biden is in the Chair and he rejects the opinion of the Parliamentarian, and a simple majority of the Senate goes along with that. Then the bill containing whatever, and bearing the title of "Heath Care Reform" will go to the President for his signature. Is that the end of road?

Not quite.

Under normal circumstances, courts will not interfere with the decisions of a House of Congress, or a house of a state legislature, when it concerns the internal rules of that house. Most state constitutions, like the U.S. Constitution, give explicit authority for houses of the legislature to adopt and apply their own operating rules. But like all other rules of conduct, this one of forbearance of courts from legislative rules has its exception.

Does anyone remember Adam Clayton Powell, Jr.? He was a corrupt, Democrat Member of the House from Harlem in New York City. He was regularly reelected by wide margins, but because of legal complications in New York, he was subject to arrest if he set foot in his District any day except Sundays. So, he would preach in the Abyssinian Baptist Church and spend the balance of the week either in Washington or Bimini.

In short, he was a disgrace, and the House wanted shot of him. So, in 1966, after he was reelected, the House simply refused to seat him. Powell then sued, because the House had not followed its own rules. In Powell v. McCormack in 1969, the Supreme Court ruled that the House had not followed its own rules. It ordered the House to seat Powell, and then expel him by the specified two-thirds vote, if they so choose.

So, there is a role for the Supreme Court when the Houses of Congress flagrantly and critically break their own rules. The Court can, should, and probably will throw out as unconstitutional – for breaking their own rules – whatever "health care reform" bill Congress purports to pass, by cheating.

FamilySecurityMatters.org Contributing Editor John Armor practiced law in the Supreme Court for 33 years. His latest book about Thomas Paine is available at www.TheseAreTheTimes.us Contact him at John_Armor@aya.yale.edu.