It’s the day before Christmas eve, and what am I doing? Am I hanging festive lights on flammable pieces of shrubbery? Wrapping last minute gifts? Sharing a cup of hot cocoa with visiting relatives? No, I’m not. I’m reading and re-reading and re-re-reading sections of this stupid, behemouth Senate health care bill which I’m quickly growing to hate just for its length and horribly lawyerficated language. What sent me back to it yet again this time was a pair of complaints from my friend Ed Morrissey and Jim DeMint who have some serious questions about the legality (and possibly constitutionality) of certain clauses in the legislation.
The subject this time concerns the longevity of the government run Independent Medical Advisory Board which would be created by this legislation. Ed refers to it as a “care rationing board” and Sarah Palin (who apparently set of this new chain of food fights) is still calling it a “death panel.” But before you supporters of Obamacare ™ get up on your hind legs… relax. I’m not here to defend Palin. There is still no reason to call it a “death panel” and doing so takes what might otherwise be a valid, rational debate over the merits of the bill and shoots straight into the red zone on the Bachmann-Hinchey Hyperbole Scale. In fact, the questions here actually have nothing to do with the function or validity of the board. They concern certain language in the bill which seeks to regulate future congressional action pertaining to this aspect of the health care legislation.
These details may be found starting around page 1018 of the legislation (available here in .pdf format) and continue on for the next twenty or so pages. The legislation is worded in such a way as to change the rules for any move to amend the current legislation or challenge the findings of the board by future congresses, or to even debate the possibility of doing so.
It begins on page 1020 in sub-section (C) of this portion of the bill and reads as follows:
LIMITATION ON CHANGES TO THIS 16 SUBSECTION.—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.
WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.
In addition, there are quite a few more restrictions in sections (4) (B) (i) through (v) in the following pages which impose restrictions on the allowable length of debate, (thirty minutes total in some cases) should you manage to bring such a bill to the floor, vote requirements to even begin debate, and a herd of other barriers to even having a discussion on the subject.
It’s fairly complicated and written in the typically arcane language of Senate staffers, but these proposals touch on two different areas. First, the questions about limiting, starting and ending debate do not fall under the constitutional question which we’ll address below. They speak to the Senate Rules, which are just that – a set of parliamentary rules enacted by and agreed to in the Senate. One of the most common ones we all know about is the rule regarding cloture, where it takes 3/5 of the members to end debate on a bill or amendment. Now, the Senate certainly has the right to change their rules as they see fit, and I am far from an expert on this area, but there is a procedure in place for changing them. And I don’t think it involves altering them by embedding a change into a new bill like this. Also, it would represent a change in the rules which would only apply to future legislation which affects this particular bill. Can we even do that? I’d like to hear from someone with more direct experience in the Senate rules.
The second question is the more important of the two, and involves the requirements to actually enact future legislation affecting this bill. Stating that you’ll need 3/5 of the Senators to pass the bill is most certainly not a question of the Senate rules. This one is spelled out for us in Article 1 Section 3 of the Constitution, from which we have derived the understanding that the Senate may increase the number of votes required to end debate, etc. but will only require more than half (or exactly half plus the vote of the Vice President) to send a bill forward for the President’s signature. If I’m reading this correctly, the bill in question seeks to change those rules for this one specific topic and require a supermajority to pass any changes or repeals into law. Call me crazy, but I don’t think you can do that.
You know, I’m sure it would be really great for either party if – when they find themselves in the majority – they could “fire-proof” all of their legislation by saying that it would take 90% of the Senate to change it in the future. But that sort of runs contrary to the whole idea of an elected Congress with the ability to reflect the evolving needs and values of the citizens. I’m certainly open to opinions to the contrary from our readers, but I have to agree with Jim DeMint in that this definitely sounds like it’s entirely unconstitutional for one part and a violation of established Senate rules and procedures in the others.