Wall Street Journal

We're not sure American schools teach civics any more, but once upon a time they taught that under the U.S. Constitution a bill had to pass both the House and Senate to become law. Until this week, that is, when Speaker Nancy Pelosi is moving to merely "deem" that the House has passed the Senate health-care bill and then send it to President Obama to sign anyway.

Under the "reconciliation" process that began yesterday afternoon, the House is supposed to approve the Senate's Christmas Eve bill and then use "sidecar" amendments to fix the things it doesn't like. Those amendments would then go to the Senate under rules that would let Democrats pass them while avoiding the ordinary 60-vote threshold for passing major legislation. This alone is an abuse of traditional Senate process.

But Mrs. Pelosi & Co. fear they lack the votes in the House to pass an identical Senate bill, even with the promise of these reconciliation fixes. House Members hate the thought of going on record voting for the Cornhusker kickback and other special-interest bribes that were added to get this mess through the Senate, as well as the new tax on high-cost insurance plans that Big Labor hates.

So at the Speaker's command, New York Democrat Louise Slaughter, who chairs the House Rules Committee, may insert what's known as a "self-executing rule," also known as a "hereby rule." Under this amazing procedural ruse, the House would then vote only once on the reconciliation corrections, but not on the underlying Senate bill. If those reconciliation corrections pass, the self-executing rule would say that the Senate bill is presumptively approved by the House—even without a formal up-or-down vote on the actual words of the Senate bill.

Democrats would thus send the Senate bill to President Obama for his signature even as they claimed to oppose the same Senate bill. They would be declaring themselves to be for and against the Senate bill in the same vote. Even John Kerry never went that far with his Iraq war machinations. As we went to press, the precise mechanics that Democrats will use remained unclear, though yesterday Mrs. Pelosi endorsed this "deem and pass" strategy in a meeting with left-wing bloggers.

This two-votes-in-one gambit is a brazen affront to the plain language of the Constitution, which is intended to require democratic accountability. Article 1, Section 7 of the Constitution says that in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate." This is why the House and Senate typically have a conference committee to work out differences in what each body passes. While sometimes one house cedes entirely to another, the expectation is that its Members must re-vote on the exact language of the other body's bill.

As Stanford law professor Michael McConnell pointed out in these pages yesterday, "The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form." If Congress can now decide that the House can vote for one bill and the Senate can vote for another, and the final result can be some arbitrary hybrid, then we have abandoned one of Madison's core checks and balances.

Yes, self-executing rules have been used in the past, but as the Congressional Research Service put it in a 2006 paper, "Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills." They've also been used for amendments such as to a 1998 bill that "would have permitted the CIA to offer employees an early-out retirement program"—but never before to elide a vote on the entire fundamental legislation.

We have entered a political wonderland, where the rules are whatever Democrats say they are. Mrs. Pelosi and the White House are resorting to these abuses because their bill is so unpopular that a majority even of their own party doesn't want to vote for it. Fence-sitting Members are being threatened with primary challengers, a withdrawal of union support and of course ostracism. Michigan's Bart Stupak is being pounded nightly by MSNBC for the high crime of refusing to vote for a bill that he believes will subsidize insurance for abortions.

Democrats are, literally, consuming their own majority for the sake of imposing new taxes, regulations and entitlements that the public has roundly rejected but that they believe will be the crowning achievement of the welfare state. They are also leaving behind a procedural bloody trail that will fuel public fury and make such a vast change of law seem illegitimate to millions of Americans.

The concoction has become so toxic that even Mrs. Pelosi isn't bothering to defend the merits anymore, saying instead last week that "we have to pass the bill so that you can find out what is in it." Or rather, "deeming" to have passed it.

Wall Street Journal

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http://saddleupamerica.ning.com/forum/topics/us-constitution-was-suspended

I found this at -

THE NEW AMERICAN -- February 5, 1996
Copyright 1996 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI  54913

ARTICLE: Nation
TITLE: Is the Constitution Suspended?
AUTHOR: Thomas A. Burzynski

In recent years, an ever-increasing number of alarming rumors
have been paraded before Americans concerning their nation's
future. Fears of United Nations forces in Montana, a
concentration camp in downtown Indianapolis, and black
helicopters everywhere are but a few of the sensational stories
that have been spread through talk radio, the Internet, and
tabloid newspapers.

The most recent addition to this maelstrom of false alarms offers
the theory that the U.S. Constitution has been suspended since
1933 through a declaration of national emergency by President
Franklin Roosevelt.

This alarming assertion is being promoted
chiefly by Dr. Eugene Schroder, a Colorado veterinarian, through
his book Constitution: Fact or Fiction. According to a biography
provided by his publisher, Dr. Schroder "uncovered the use of
emergency powers to set aside the Constitution" several years ago
and has been investigating the situation ever since. Dr.
Schroder's efforts to publicize the issue have been boosted by
interviews in the Spotlight and Anti-Shyster publications as well
as through appearances on talk-radio programs.

Dr. Schroder has apparently influenced others. Larry Pratt,
executive director of Gun Owners of America (GOA), endorsed and
recommended Dr. Schroder's work, declaring that "America needs to
read this book!" GOA has released a video, Enemy Public Number
One, which mirrors the arguments of Dr. Schroder. Likewise, the
Republican Party of Texas, the nation's largest state Republican
party, issued a resolution claiming that the Constitution has
been suspended and calling for its restoration. John Tello, a
member of the executive committee of the Texas Republican Party
and the primary backer of the resolution, told The New American,

"Dr. Eugene Schroder worked with us." Seemingly, these groups
have taken Dr. Schroder's theory as fact without checking the
accuracy of the information on which it is based.

                          The Schroder Theory

According to Schroder, the foundation for the current crisis was
laid on October 6, 1917 with the passage of the Trading With the
Enemy Act. This act gave the President the power to regulate,
during time of war, all financial transactions involving any
"individual, partnership, or body of individuals residing within
any nation with which the U.S. is at war." On March 9, 1933, five
days after Roosevelt's inauguration and four days after he had
declared a national emergency, Congress passed the Emergency
Banking Act, which amended the Trading With the Enemy Act to
include regulation of transactions not only with the enemy but
also between Americans during time of war or national emergency.

Since FDR had already declared a national emergency to deal with
the bank "crisis," this unconstitutional legislation immediately
gave the President much of the confidence he needed to launch the
economic segment of his "New Deal" agenda. The result, of course,
was an assault on the traditional form of American government and
the free enterprise system under which America had flourished.

FDR's declaration of a national emergency has never been
terminated and has been joined by numerous other declarations of
national emergency by subsequent presidents. Dr. Schroder cites
this, as well as various government reports and laws, as "proof"
that our nation has slipped into an "unconstitutional
dictatorship." But as we shall see, he overlooks the fact that
the Constitution is the supreme law of the land and cannot be
suspended or superseded via a law or presidential decree. In
effect, he confuses violations of the Constitution with a
suspension of the Constitution.

                            Fact and Fiction

One piece of Schroder's documentation comes from a 1973 Senate
report which ominously stated:

"Since March 9, 1933, the United States has been in a state of
declared national emergency.... Under powers delegated ...
[during a national emergency] the President may: seize property;
organize and control the means of production; seize commodities;
assign military forces abroad; institute martial law; seize and
control all transportation and communication; regulate the
operation of private enterprise; restrict travel; and, in a
plethora of particular ways, control the lives of all American
citizens."

Aside from being unconstitutional, the level of tyranny described
by this 22-year-old Senate report has never been reached. Harold
Relyea, a specialist in American national government with the
Congressional Research Service, explained to The New American:
"The emergency declared in 1933 still exists as a matter of law
but not as a matter of policy. It has never been terminated but
all authority conferred by the declaration has gone into
dormancy."

In his book Constitution: Fact or Fiction, Dr. Schroder contends:
"The [U.S.] Constitution can be suspended by any president of the
US who ascertains and proclaims a widespread territorial revolt."

This claim, however, is not sustained by the Constitution itself,
which is the sole legitimate source of federal power. The writ of
habeas corpus, as specified in Article I, section 9, is the lone
provision of the Constitution which may be suspended -- and even
then, only in "cases of rebellion or invasion." Under the
Constitution the writ could be suspended during a period of
national emergency only if the national emergency in question
were a "rebellion or invasion." As Relyea emphasized to The New
American, "The Constitution has never been suspended."

So how does Schroder reach his conclusion in light of the
Constitution? Largely by way of faulty research. For instance,
one of the primary pieces of evidence he cites involves Title 12,
Section 95(b) of the United States Code. Writes Schroder:

"[I]f we went to the library today and picked up a copy of 12 USC
and went to section 95(b) ... we will find a law which states:
'The actions, regulations, rules, licenses, orders and
proclamations heretofore or hereafter taken, promulgated, made,
or issued by the President of the United States or the Secretary
of the Treasury since March 4, 1933, pursuant to the authority
conferred by subsection (b) of section 5 of the Act of October 6,
1917 [Trading With the Enemy Act], as amended, are hereby
approved and confirmed.' "

Schroder claims that this section of the U.S. Code means that
everything the President or the Secretary of the Treasury has
done since March 4, 1933 and anything that the President or the
Secretary of the Treasury is hereafter going to do is
automatically "approved and confirmed."

However, research reveals that Dr. Schroder is wrong. Doing as he
suggests, this author went to the library, picked up a copy of
Title 12 USC, and went to section 95(b), where he found the
following:

"The actions, regulations, rules, licenses, orders and
proclamations heretofore or hereafter taken, promulgated, made,
or issued by the President of the United States or the Secretary
of the Treasury since March 4, 1933, pursuant to the authority
conferred by section 95a of this title, are approved and
confirmed."

Looking in section 95(b) of USC Title 12, this writer found, in
place of Dr. Schroder's reference to the 1917 Trading With the
Enemy Act, a reference to "section 95(a) of this title." Section
95(a) refers only to a time of war, not to a period of national
emergency. Dr. Schroder quoted from an outdated version of the
U.S. Code.

In addition, the 1995 resolution passed by the Texas Republicans
contains the very same error. John Tello told The New American
that Schroder "became aware of the change in 1987." But Tello
added that the change in this law is reflected neither in his
resolution nor in Schroder's book because they both believe the
government is still operating under the older phraseology.

                       Ignoring the Constitution

The current emergency power supplied to the President and the
Secretary of the Treasury by section 95(a) authorizes them to
regulate America's banking system, even to order the closing of
banks. But such powers are clearly unconstitutional on two
counts: The Constitution contains no authorization for any
federal authority to declare a national emergency, and it
likewise contains no authorization for regulating or closing
banks. The absence of such grants of power in the body of the
Constitution are, of course, reinforced by the Tenth Amendment.

Therefore, the Constitution cannot be suspended as Dr. Schroder
believes. Instead, its fundamental limitations are being ignored
and the power of the executive branch of government is being
permitted to grow to ominous proportions.

Dr. Schroder makes another misstep when he cites the Trading With
the Enemy Act. To buttress his claim that we live in a
dictatorship brought on via the use of emergency powers, he cites
the following portion of the act: "During time of war or during
any other period of national emergency declared by the President,
the President may ..." regulate to the point of prohibiting any
transaction involving Americans. But even this portion of the
act, though always unconstitutional, was amended in 1977 to read:
"During time of war, the President may...." What was deleted from
the original by the 1977 amendment, of course, is the reference
to a "national emergency declared by the President."

In 1976 Congress passed the National Emergencies Termination Act,
which specified that any national emergency not extended by the
President on an annual basis will be automatically terminated.
Also, the act recognized the power of Congress to terminate a
national emergency. Schroder claims that the national emergency
declared by FDR in 1933 was expressly exempted from this act. But
he fails to note that this exemption was done away with one year
later in a measure amending the Trading With the Enemy Act.

                            Danger of Rumors

The rumor of a suspended Constitution represents only the latest
in what has become a labyrinth of false trails and dead-ends, all
with the potential to confuse and neutralize well-meaning
conservatives. Mysterious executive orders prohibiting food
hoarding, undue concern about yellow fringes around the American
flag, and tales of Russian weather modification all damage the
credibility of otherwise effective conservative activists. But
the rumor that the Constitution has already been suspended
delivers a double blow to the conservative movement since it is
not only patently false, but is infecting good Americans with a
sense of hopelessness. If the Constitution has been suspended,
then constituent pressure on congressmen is useless, all checks
and balances designed into our system of government no longer
apply, and the government is incapable of safeguarding our
God-given rights.

Fortunately, as long as the Constitution still stands, any
government action that is based on extra-constitutional powers is
ipso facto unconstitutional. What America needs are congressional
declarations that expose as nullities all illegally usurped
powers. In addition, the people must learn to resist the
distractions of the rumor mill and, instead, generate constant
and informed vigilance lest their freedoms disappear at the hands
of those who always claim that they mean to rule well, but who
most of all mean always to rule.

                             END OF ARTICLE

THE NEW AMERICAN -- February 5, 1996
Copyright 1996 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI  54913
 

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