CNN’s Jeffrey Toobin: Supreme Court Will Not Overrule ‘Deem and Pass’
» 14 comments
Bad news for Republicans should they be counting on using the Supreme Court as a last resort to block the Senate health care reform bill. Jeffrey Toobin visited Rick Sanchez today to talk about the chances of success Republicans will have if they try to legally oppose a “deem and pass” vote that would indirectly put the bill on the President’s desk, and he didn’t waste any time in telling the GOP that, quite simply, it’s not going to happen.
Having watched the Democrats collect the required number of votes to pass their highly contested health care reform bill, Sanchez asks Toobin whether the two major legal options the Republicans have before them to defeat the bill outside of Congress– suing against the bill itself and suing against a “deem and pass” vote– have any possibility of keeping the bill from becoming law. On the first option, he noted that “they can certainly sue; anyone can sue, this is America. But I think it is extremely unlikely this [health care] law will be declared unconstitutional.”
And as for the indirect “deem and pass” vote, he called it “clearly constitutional” and pointed out that Democrats have tried in the past to overrule Republicans similarly. “What happened when the Democrats tried it? They lost.”
Our sources indicate that the House will use deem and pass to get the bill through because they lack the votes to do so without it, and while all precedents point to a legal battle over “deem and pass” leading nowhere, the chances Republicans will let this go quietly are slim to none.
Toobin’s commentary below:
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14 comments
The voice of reason yet again, Thanks CNN!
Toobin is mostly right, but with an important caveat. There was an earlier constitutional challenge to deem and pass, and it failed. However, the court (I think it was the D.C. Circuit if I remember correctly) did not reach the constitutionality of deem and pass. Rather, it dismissed the case based on the “political question” doctrine, which is a form of abstention that essentially says that the federal courts will not delve into the internal procedures of a co-equal branch of government.
In other words, the court did not say deem and pass is unconstitutional. Rather, it said that it did not have the constitutional power to rule on the constitutionality of an internal congressional procedure. As a practical matter, the result is the same: a lawsuit won’t work. But is worth noting that each member of Congress swears an oath to the Constitution, so, if only as a matter of their oath, it is worth debating whether deem and pass is constitutional.
As for the constitutionality of the underlying bill, Toobin is probably right. The commerce clause power has been read so expansively in the past that it is probably going to be deemed broad enough to support the legislation here. I, for one, think that the commerce clause jurisprudence took a turn for the worst during the New Deal (particularly with a case called Wickard v Filburn), but unless the Supreme Court is willing to revisit those New Deal precedents, that’s not going to be corrected. As a practical matter, I doubt there are even 4 votes on the current Supreme Court that would be willing to revisit those cases. It may be worth a try, but I wouldn’t get my hopes up.
Toobin is a shill for BHO so this is not a surprise.
Yes, and the people will not understand when the politician says, I didn’t vote for that bill.. I voted on something else that passed that bill. With the hell to pay in November(no matter what), they can’t hide behind this anyway. As with most of what the left has done the past year, ‘bad news for the Republicans’ may be arguable as well.
Considering how many times the Republicans have used it themselves, this should come as no surprise.
What is not surprising either, is the despicable way the Republicans and their little unethical minion have distorted the truth about this procedure.
Then again, the Supreme Court is conservative right now. Wouldn’t be surprised if they continue with their activist rulings.
This is horible to say, but I am just going to say it…. Gawker has ruined Jeffrey Toobin for me, I know I am supose to keep it seperate, but I can’t. Sorry. I am surprised CNN gives him Face time at all. He comes off all Nice Guy, but Seriouly. I can’t take him serioulsy.
Toobin’s main point is correct, in that the Court is not likely to challenge procedural issues with another branch. However when it comes to the actual passing of this there could be legal challenges. There will be numerous states challenging this on the 10th amendment issues. And the fact that we’ll see a Congressional requirement on citizens to purchase something or be fined could be unconstitutional itself.
The difference in this situation is that the Dems are going to Demon Pass only the contents of the Senate bill and part they are going to send to the Senate. Hot Air has a post arguing this is unconstitutional, unlike other Demon Pass usages. http://is.gd/aPJvY
One thing is certain, no matter the legal machinations and manuevering, when the majority of the average American public out there figure out that Democrats, all by themselves, crafted and slid into existence a law that absolutely forces them to buy a product or face fines and even incarceration, it’s gonna be a mighty red nation for a mighty long time. Forced purchase and enforcement through the IRS is not gonna go over well when folks finally figure it out.
Barry and the Dems will no doubt make history, but it will be at the cost of the Democratic party for decades…Most Americans will put up with the waste, fraud and stupidity of both Dems & Repubs, but actually making it the law of the land “you must purchase X” , unless you are a socialist, is going to piss off most Americans permanently and beyond repair.
The Dems may want to consider a name change in the near future….
>Forced purchase and enforcement through the IRS is not gonna go over well when/IF folks finally figure it out.
remember the last ‘lection! – Has SUEI/Acorn locked-in the “vote counting” task?
Thanks for the “if” disgusted, I got ahead of myself!
@timzank Actually the majority of Americans already have health insurance, so they aren’t being forced to purchase anything additional.
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