Obama vs. the Constitution

There is a recent book titled, "FDR vs. The Constitution." It is the political history of FDR's "Court Packing" plan. He intended to undermined the separation of powers in the constitution by appointing hand-picked justices to the supreme court. In 1933 and 1934, five of the nine justices generally blocked his New Deal legislation. Because they were appointed for life, he couldn't remove them but he planned to appoint up to six more justices who would vote his way. With an overwhelming Democrat majority in congress, FDR planned to get his court plan enacted by congress. Only principled Democrats, led by Senator Burton Wheeler, of Montana, defeated his plan.

Are there similarly principled Democrats in Congress now? That remains to be seen. Obama's legislative plans involve getting the health care bill adopted by unconstitutional means. This may be necessary for him and his central committee because the House does not have a majority that supports the Senate bill. The Senate cannot pass a bill acceptable to the House because the recent election of a Republican to replace the late Teddy Kennedy gives the Republicans enough votes to use the filibusterer to stop any bill. Therefore, Obama, Ried, and Palosi have to adjust the procedural rules. They may do this by "passing" the bill in the house without actually voting on it but with a rule change. This violates the US Constitution which states that a bill, "which shall have been passed," by both houses is presented to the president for his signature to become law.

This actually should not work if the members of the House of Representatives who object to the bill realize that by voting for a rule change, they would really be voting for the bill. I guess they could kid themselves, but not their constituents. This is reminiscent of the situation a few months ago when Olympia Snow and the other Maine Republican voted for the Senate bill because they said they really were not voting for the bill but for "discussion of the health care issue." This blog and others stated at the time that they were opening the door to this sort of procedure to make a health care bill law.

The senate created the filibusterer rule to avoid passing significant legislation without substantial support in congress, and, as in this case, without popular support of the people of the country. Reagan realized that his plan for a line item veto did not meet this test of substantial congressional support and that his plans to override the regular procedure was unconstitutional. He dropped his plan. His legal advisers and others made the constitutional case against it. Reagan saw that the constitution was more important that his plans, so did Senator Wheeler. Not so FDR or BHO.

(Mark Levin has been and will be discussing the constitutional issues extensively.)