Collective Conscious

John McCor­mack at the Weekly Stan­dard joins Sen. Jim DeMint (R-​​SC) in this attack on the health care bill:

There’s one pro­vi­sion that I found par­tic­u­larly trou­bling and it’s under Sec­tion C, titled “Lim­i­ta­tions on Changes to This Subsection.”

And I quote — “It shall not be in order in the Sen­ate or the House of Rep­re­sen­ta­tives to con­sider any bill, res­o­lu­tion, amend­ment, or con­fer­ence report that would repeal or oth­er­wise change this sub­sec­tion.”

This is not leg­is­la­tion. It’s not law. This is a rule change. It’s a pretty big deal. We will be pass­ing a new law and at the same time cre­at­ing a Sen­ate rule that makes it out of order to amend or even repeal the law.

I’m not even sure that it’s con­sti­tu­tional, but if it is, it most cer­tainly is a Sen­ate rule. I don’t see why the major­ity party wouldn’t put this in every bill. If you like your law, you most cer­tainly would want it to have force for future Senates.

I mean, we want to bind future Con­gresses. This goes to the fun­da­men­tal pur­pose of Sen­ate rules: to pre­vent a tyran­ni­cal major­ity from tram­pling the rights of the minor­ity or of future Congresses.

This is most cer­tainly not an uncon­sti­tu­tional move. Both the House and the Sen­ate have the con­sti­tu­tional author­ity to “deter­mine the Rules of its Pro­ceed­ings.” Since the health bill in ques­tion is to be approved by both houses, it falls well within the author­ity of the bill to change the rules of both houses. Also, there is no require­ment that floor rules are to be set by res­o­lu­tion (although the gen­er­ally are), mean­ing that it is cer­tainly a valid option for the houses to set their rules by statute instead.

Most bills have no rea­son to carry that pro­vi­sion. If law were una­mend­able, then many major actions would be utterly impos­si­ble — a great many bills, includ­ing this one, rely on their abil­ity to alter past laws, even those passed by the same major­ity party. Such a pro­vi­sion would there­fore fre­quently require new laws to be passed restor­ing the abil­ity of the Con­gress to revise those bills; this would be a silly back-​​and-​​forth that merely added a new, fil­i­buster­able step to the process of legislation.