Mar 18 Constitutional Arguments Aplenty

Idaho isn't the only state that's planning on filing a lawsuit against the federal government over the Democrats' health care legislation. Virginia Attorney General Ken Cuccinelli announced that he'll sue the federal government on behalf of the people of Virginia:

Cuccinelli has long said he was examining the legal issues and suggested he would likely file suit. Brian Gottstein, a spokesman for the office, said this afternoon that a lawsuit is now a definite. Gottstein would provide no details of the legal rationale for such a suit, indicating the process is "still being worked out."

Virginia last week became the first state in the country to pass a state bill declaring it illegal for the government to require individuals to purchase health insurance, a key part of bills under consideration on Capitol Hill.

Not only will Mr. Cuccinelli file a lawsuit against the federal government questioning the constitutionality of the individual mandate but he's considering filing suit challenging the constitutionality of the Slaughter Solution, too:

Dear Speaker Pelosi:

I am writing to urge you not to proceed with the Senate Patient Protection and Affordable Care Act under a so-called "deem and pass" rule because such a course of action would raise grave constitutional questions. Based upon media interviews and statements which I have seen, you are considering this approach because it might somehow shield members of Congress from taking a recorded vote on an overwhelmingly unpopular Senate bill.

This is an improper purpose under the bicameralism requirements of Article I, Section 7 of the U.S. Constitution, one of the purposes of which is to make our representatives fully accountable for their votes. Furthermore, to be validly enacted, the Senate bill would have to be accepted by the House in a form that is word-for-word identical (Clinton v. City of New York, 524 U.S. 417 (1998)). Should you employ the deem and pass tactic, you expose any act which may pass to yet another constitutional challenge.

A bill of this magnitude should not be passed using this maneuver. As the President noted last week, the American people are entitled to an up or down vote.

Sincerely,

Kenneth T. Cuccinelli, II

Attorney General of Virginia

This isn't a debate about trivial House or Senate rules. It's a debate on whether the House or Senate are accountable to the people they represent. Put differently, We The People demand that our senators and representatives accept responsibility for their actions.

Judge Michael McConnell explained it perfectly when he told FNC's Megyn Kelly this:

MCCONNELL: Well that's right because Article I, Section VII of the Constitution lays out a procedure by which legislation has to be passed. And it requires that both houses of Congress, both the Senate and the House, seperately pass any piece of legislation before it goes to the president for his signature.

And along the way, Article I, Section V then further specifies that, upon the demand of one-fifth of the members of the House or the Senate, that the yeas and the nays must be recorded on the journal. The purpose of these provisions is to make sure that, when our senators and representatives are voting on the people's business, that they do so on the record and that their constituents can later see what they've done.

Earlier in the interview, McConnell said that the Supreme Court "has been quite clear and consistent" on related cases.

For a bill to become law, both the House and the Senate have to pass the identical bill. Article I, Section V guarantees that a recorded vote is required if one-fifth of the House or Senate requests a recorded vote.

I'm betting that the Supreme Court would love settling this issue once and for all.

I've heard pundits say that the courts prefer staying out of political fights. That's true. This isn't just a political fight, though. It's a judicial fight, too, because our government can't work without a vibrant checks and balances regime. Without the Supreme Court keeping Congress within the Constitution's framework, Congress could change rules on the fly and place itself above the Constitution. That's sending a terrible message to Congress.

Passing this bill would only be the first step in the health care fight. The courts will be littered with constitutional challenges on the bill.

Comments welcome at LFR.