The Democrats’ Putsch Against the Constitution

The president and the Democratic congressional leadership are fighting furiously to pass, with no Republican votes, the ever-less-popular health bill. An Associated Press poll last week shows that four in five Americans don’t want the Democrats to pass a health care bill without bipartisan support, while almost all polls are showing support for the current bill to be at only 25 percent to 35 percent. And all polls show high negative intensity.

The resistance of our governing system to passing so unpopular a bill is so powerful that it has driven Democratic Speaker of the House Nancy Pelosi and Democratic Chairwoman of the Rules Committee Louise Slaughter — at least for the moment — to actually publicly consider violating the constitutional process for enacting laws.

Under their announced scheme, instead of following the constitutional voting process — i.e., 1) The House first votes for the despised Senate bill, then 2) after that is signed into law by the president and 3) the Senate passes the popular amendments that the House wants, 4) the House votes for that second Senate bill of amendments, which, 5) the President then signs into law — under the proposed scheme, the Senate bill would be “deemed” to have passed the House and become law without a presidential signature. Then the Senate would pass the House-demanded amendments, and the House members would then cast only one vote — for the amendments they like, rather than the underlying Senate bill they hate. Thus (so Pelosi’s theory holds) politically protecting House members, who could say they never actually voted for the publicly despised Senate bill.

But, as has been pointed out in several venues in the last few days, Article 1 Section 7 of the U.S. Constitution requires that before a bill becomes law, (1) “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; If he approve he shall sign it, but if not he shall return it”; and, (2) “in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

It is those two provisions of the Constitution that would be evaded: 1) the House vote, with the names and votes of the individual members publicly published, and 2) the president’s signature. That is James Madison’s precise 18th century version of transparency and accountability.

The Supreme Court has only recently emphasized that those procedures must be followed precisely.

In Clinton v. New York City, 1998, (In which the court found the line-item veto as passed by Congress unconstitutional), Justice Stevens wrote the majority opinion:

“The Balanced Budget Act of 1997 is a 500-page document that became ‘Public Law 105-33′ after three procedural steps were taken:

(1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives;

(2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law.'” Article I, Section 7.


“The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’ Chadha, 462 U.S., at 951.”

Some have argued that the “Gephardt Rule” (House Rule XXVII) — in which a similar “self-executing rule” “deemed” the House to have voted on a new debt ceiling, is valid precedent. Wrong. That rule was for a joint resolution — not a bill. A joint resolution is a guide to the House. It is not a bill under the Constitution and has no force of law. Because a president has nothing to do with a resolution, a self-executing rule is valid for a resolution, but not for a bill.

It speaks to the sturdiness of the system our founders installed that it is, as intended, so resistant to passing major legal and cultural changes against the overwhelming will of the public. So resistant that, in frustration, the Democratic speaker of the House has been driven to consider breaking her oath of office and violate the Constitution in order to get her way. Presumably, when she is better counseled, she will dismiss this wayward idea.

Should she follow through on her threat, however, the product would not be a law, but a nullity — an aborted, inert thing.

It would be, in essence, an attempted congressional putsch against the Constitution.

But still our governing system would not be broken as long as the president would do his constitutional duty — as assuredly he would — and neither sign nor veto it, but rather, publicly declare it a nullity, tear it up and burn it, as one would a piece of trash.

I refuse to conjecture on any alternative action by the president.

In other news, the White House spokesman last week engaged in an indecorous public exchange with the Chief Justice of the Supreme Court.

  • Sherry

    What is going on today in Washington is an embarrassment to tax paying Americans…and yes President Obama and Nancy Pelosi…
    "More insider and process than people want to know…" Nancy Pelosi talking about Americans when it comes to passing the Healthcare bill…WELL SOME OF US WHAT TO KNOW!!!!!

    • Stephen D.

      I can't help but take note of the "Sanpaku Eyes" the Speaker has. The President has them (three sides of white showing) often. But his are on the bottom which indicates danger according to tradition. While this photo at least shows the third side of white on the top of the eye. According to tradition this person is deranged! (Note Charles Manson) Look it up. SANPAKU EYES!!

  • Sherry

    While we are talking about the Progressive agenda, let's talk about that "process" and maybe someone from the House of Representatives…maybe one of those "no" members who switched to "yes" could explain this:
    SCHUMER: “This is something that people have looked at (inaudible.) So, you can't just rush it out. You have to really study it carefully and that's what the hearing (inaudible) and the rules committee who has jurisdiction over what this is intended to. There have been some very interesting papers written that said that the Constitutional right, for instance, of the Senate to make its own rules supercedes the two thirds that you can't change the rules but only when Congress writes new rules at the beginning of each Congress, every two year period where we reorganize ourselves. That's something we want to explore”… full article at:

  • Sherry

    I would like to know what those “very interesting papers” are Democrats at this Progressive meeting!!!

  • eyes wide open

    comment by Yale Law Professor –
    Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can't recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of "deem and pass." That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration.

    • Ross

      One big reason we are in deep trouble, is people that think like you, and indoctrinate our young. Never has there ever been a "deem and pass" move taken by the GOP when they ran the house that threatened to even approach the scope of this piece of statist trash. Never has there been a simple majority vote taken in the sanate to pass such a sweeping change to our very form of government. You know that health care is no more than a seed for control of everything. If it was REALLY health that these idiots were concerned about, they would enact sensible reform to increase competition and lower prices among other sensible things. They are not at all concerned with health, but state control!!! Stifle yourself, you and your other elite friends are the enemys of freedom.

      • Jim C.

        Where was your "Sensible reform, then, after all these years?" Oh, that's right–you don't really care about it until the dems want to do something about it. We HAVE competition–where's the lower prices? Where's the options? What a liar you are.

        Stifle your own "enemies of freedom" hogwash. And maybe, just maybe, practice what you preach.

        • Craig Morehouse

          No, you practice what *you* preach!

          If this was wrong when the Republicans tried it, then it is wrong now and you must oppose it.

          If you don't oppose it now, then it is you who are the hypocrite.

          • eyes wide open

            I don't preach anything slick , i just sit and watch you repu- er Conservatives and Democrats , beat each other up .And the circus goes on . The Republicans did it no less than 35 times , and now the Democrats are doing ….boo hooo , cry me a river ….and suck it up . I've been NPA since I was able to vote , and after visiting this site anfd Kos , where the only difference is R and D , I'll remain NPA for life .
            Both sides are an embarrassment , and an insult to any thinking man's intelligence .
            LOL….but atleast in essence you admit , that Republicans did it too , in fact they themselves may have set the precedent . DEAL WITH IT .

          • Jim C.

            Are you one of those boring people who talk about a pox on both parties?

            Until Americans change their habits in fundamental ways, or until we have (God forbid) extremely bad luck, third party ain't gonna happen.

            What's sad is that the tea party people and me have the same problems and concerns. But they want to give power back to the people who took it from us in the first place. They're (unwiiting) Wall Street dupes and corporatist shills. They would never think of themselves as so–but then, these are the people with the "Get Government Out of My Medicare!" signs.

          • Jim C.

            So…you were there saying it was wrong when the Republicans did it, chief?

  • johncarens

    The whole debate about "Health Care" is a damned, outrageous, flaccid lie. Why would the process that leads to it's cementing in law be any different?

    As conservatives, we've been arguing for months (and years) about ways to bring down the cost of health-care services. But, we watch in jaw-dropping amazement when statist radical democrats don't even acknowledge our suggestions. Why? Why don't they engage us on a practical level?

    Because their goal has ABSOLUTELY NOTHING TO DO WITH HEALTH CARE! The goal of Statist left-wing radical Democrats is to fundamentally alter the political equation, and shift this country from a "center-right" to a "left-wing" nation. This has been their dream since Samuel Gompers. This is why they are so mouth-foamingly rabid about passing this into law. So when conservatives debate them about "health care", we might as well debate them about the mating habits of South American ring-tailed snow monkeys. We are discussing two different things: They want a social tyranny, WE want lower medical bills. Americans manifestly do not want this stinking pile of "reform" stuffed down their throats, but, by God, Nancy Pelosi will, rhetorically or otherwise, shred the Constitution to give it to us anyway.

    Of course "deem and pass" is Unconstitutional, even if it weren't spelled out succinctly in Article 1. Voting "yea" and "nay" on proposed laws is foundational to a functioning Republic. Not doing so isn't merely "problematic", it is tyrannical. But these clowns ARE TYRANTS! Get over it, everyone, and work like mad to throw them the hell out of office.

    The very concept that medical care is a "right" is an outrageous lie to normal Americans. To infer this "right" means that the government has a "right" to enslave some number of Americans to PROVIDE that care. Already, we are seeing the matrix of this outrageous lie personified in the New England Journal of Medicine's very recent poll that reflected the fact that nearly 50% of general practitioners will leave their profession if "Obamacare" is passed into law. What then, Mister Smart Guy? DRAFT doctors?

    I hope and pray to God we can get to the ballot box soon enough to stanch the bleeding of this nightmarish outrage. I loathe these people.

  • michaelle

    Mortisha (Pelosi) is indeed a wicked women and power hungry. She likes her power so much that she is willing to destroy the last free country in the world. For sure-there will be lawsuits up to their rearends.. First, Mark Levins law firm is going to sue. These criminals will be in court for years. The states are going to sue-I know at least 5 that are.

  • USMCSniper

    The advance of Obamunism might go like this. First, the puffed-up, self-important petty bureaucrats will come around, knock on your door, smile, and say “We’re from the government and we’re here to help you.” Later, to all those who refused help, they would come around, walk in your door, and say “We’re from the government, and we’re here to take care of you.” Later, to all those who refused to be taken care of, they would come around, kick in your door, and say “We’re from the government; shut up and get on the cattle car.” All the little jack-booted bureaucrats will have been largely recruited from the ranks of ACORN, union thugs and Chicago gangsters.

    • MMcFM

      This is the history of communism. I truly believe this will be the future. It will quite likely be my future.

      They're a bunch of outlaws.

  • badaboo

    Congrats FPM moderators , you're taking the first steps towards censorship .

  • smchudej

    We, the people, own this country… We have the right, the duty and the obligation to overthrow any unresponsive government guilty of TYRANNY. Mark my words…heads will roll at election time. Let's make sure it is THEIRS and not ours. They work for us and let's not let them forget it!
    This is the exact reason that led our Founding Fathers to include the Second Amendment to the Constitution of the United States. Be afraid, Washington, be afraid. The citizens own this country and we will take it back.

  • JosephWiess

    If they pass this bill that nobody likes, then we can start declaring arrests for fraud, theft, extortion, and acting against the constitution. And if they violate the constitution, they have effectively voided it and all the states should cede and start another country.