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Is it Constitutional?

Discovery Sr. Fellow John Wohlstetter comments on passage of the Senate version of health care this morning (60-39, with no Republican votes):

"This exchange between Sen Jim DeMint (R-NC) and the Senate parliamentarian identifies an astonishing abuse of senatorial power, very possibly in conflict with the U.S. Constutition. This is the doing of Senate Majority Leader Harry Reid (D-Mars ): dumping a sleigh load of presents for special friends of big government.  The specific provocation in the 2,000-plus-page list of boondoggles is a provision creating a Medicare panel and setting a 2/3 super-majority rule for rescinding it--effectively declaring it out of order--and, hence, not able to be considered--by senators or representatives in any future Congress.  The new review panel will decide, from Olympian hieghts, who gets insurance coverage and for what, as among Medicare mendicants.
 
"Reid's parliamentary gambit depends upon whether courts will hold as merely procedural--and thus solely a matter of Senate concern--the erecting of a super-voting barrier to future legislative rescission of the new rule. Courts may instead find that it is unconstitutional.

"I have not seen court rulings on this point.  But it seems hard to credit any legal argument that enables a current House of Congress to bar future Houses from reconsideration, via a super-majortiy vote.  Put simply, the current Congress cannot diminish the power of subsequent Congresses to rescind legislation.
 
"Perhaps judicial imperialists will ignore this.  But the effort must be made.  A precedent like this will permanently disempower future legislative powers in a fashion never contemplated by the Framers." 

You can email brucechapman@discovery.org

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