Wouldn't it be ironic if the death blow to Obamacare were delivered in part because of President Obama's gratuitous snub of the Supreme Court?
On Jan. 21, the Supreme Court ruled the provision in the McCain-Feingold law that forbade corporations from buying political ads was unconstitutional.
"Last week the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections," President Obama said in his State of the Union address Jan 27. "Well, I don't think American elections should be bankrolled by America's most powerful interests, and worse, by foreign entities."
The president is entitled to his opinion, which many share. But, said columnist Kevin McCullough, it was "terribly inappropriate when he openly encouraged belligerent reaction against the Supreme Court with the Justices sitting in the chamber. It was a cheap shot, and scholars believe it may have violated the spirit embodied in our government's commitment to the separation of powers."
After speaking at the University of Alabama law school March 9, Chief Justice John Roberts said in response to a question: "the image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court -- according to the requirements of protocol -- has to sit there expressionless, I think is very troubling."
So what does this have to do with Obamacare?
Both the House and Senate have passed health care bills. But they're different. Ordinarily, what would happen is that members of the House and Senate would meet in a conference committee which would write a compromise bill that would then go back to both houses to be voted on for final passage.
But thanks to Scott Brown, that can't happen. His victory in the Massachusetts special election in January gives the Republicans 41 votes in the Senate, enough to sustain a filibuster against a conference committee report. The only way to avoid a filibuster in the Senate is for the House to pass the Senate bill as is.
But most Democrats in the House hate the Senate bill, both because of the corrupt special deals (e.g., the Louisiana Purchase, the Cornhusker Kickback) incorporated in it, and because of the taxes it would impose on "Cadillac" health plans, which unions hate.
Democrats in the Senate have told Democrats in the House that if they pass the Senate bill, the Senate will then agree to changes in it the House wants via the procedure known as reconciliation, which requires only 51 votes for passage in the Senate, not 60.
But Democrats in the House don't trust Senate Democrats. So they're planning to vote on a reconciliation bill of their own, in which they "deem" the Senate bill passed, without actually having a vote on it.
This stratagem has brought criticism from people normally friendly to Democrats. CNN's Jack Cafferty described it as "incredibly sleazy." A House Democratic whip, Stephen Lynch of Massachusetts, has called it "disingenuous."
There's a more fundamental problem with the stratagem. It's unconstitutional. Article 1, Section 7 of the Constitution states that no bill can become law unless it is put up for public vote by both houses of Congress. Section 5 requires that "the Yeas and Nays of the Member of either House on any question...shall be entered on the Journal."
In a 1998 case, the Supreme Court held that for a bill to become law, the House and Senate bills must contain "the same text."
If the Senate bill is "deemed" passed, Virginia's attorney general has said he'll sue. So has Mark Levin, head of the Landmark Legal Foundation. They'll doubtless be joined by dozens of Republican congressmen, and other state attorneys general.
Democrats have to hope the Supreme Court won't take the case, out of historic deference to the prerogatives of the legislative branch. In an 1892 case (Marshall Field v. Clark), the Court held: "the respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept as having passed Congress all bills authenticated in the manner stated."
But President Obama hasn't shown much respect to a coequal and independent department, so the Justices might be inclined to revisit this ancient precedent.