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Justice Harlan, Meet Speaker Pelosi

Note: It’s been a while. Pardon the lack of polish in this post.

To review: The debate over so-called “deem and pass” (also called the “Slaughter House Rules”), under which cowardly House members could pretend to pass the Senate version of health care without actually voting on it, had (so we thought) been so thoroughly bitch-slapped by those willing to remember the unambiguous text of the Constitution’s Presentment Clause (or, alternatively, Schoolhouse Rock) that supporters of ObamaCare and opponents alike had thought the matter closed.

Then, somehow, the constitutional brush fires sparked by the damn-it-all ferocity of Democratic leaders to force socialized medicine on an unwilling majority have jumped from Article I to something called the Enrolled Bill Doctrine:

In other words, the signatures of the Speaker of the House and President Pro Tempore of the Senate are considered authoritative on the question of process. The court refused to interfere on a political question in 1892 and has maintained that precedent since.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

But there’s another reason why trying to cite to the Enrolled Bill Doctrine is misguided: That 1892 Supreme Court case stating the modern Doctrine, Field v. Clark, 143 U.S. 649 (1892), did not just fail to uphold a political-branch negation of Article I, Section 7, as some seem to infer. It actually held that such a negation would be so preposterous as to be, literally, unthinkable:

It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government.

Try to process what Justice Harlan is saying: Honest bureaucratic mistakes in Presentment happen and are not constitutional crises. But Congressional leaders wilfully trying to evade the Presentment Clause? That would be so outrageous, such a betrayal of the Constitution, that to ask a court to even entertain the notion would be, to coin a phrase, judicial activism of the most egregious kind.

Justice Harlan, meet Speaker Pelosi. “Too remote” just got a lot closer.

(Via Below the Beltway.)

3 Responses to “Justice Harlan, Meet Speaker Pelosi”

  1. […] posts a rebuttal of sorts to my post yesterday about the probable constitutionality of the so-called Slaughter Solution: I […]

  2. […] 3/17/10: Fellow attorney KipEsquire takes issue with some of my arugments here, and I respond in a post […]

  3. […] has made some good points suggesting that Marshall Field might not apply in this case, but it doesn't end there. I vaguely recalled learning the Enrolled Bill Doctrine in law […]

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