The current health care bill working its way through the Senate has numerous infirmities, and people are highlighting the curious provision on page 1020 that purportedly makes part of the bill unrepealable.
That provision is so blatantly void on its face that I’m struck by the statements of some who say merely that they “doubt” its constitutionality.
Congress derives its authority from the Constitution, and the 112th Congress will have the same powers as the 111th Congress in spite of what the 111th Congress may say. Harry Reid can insert whatever statements he wants in an attempt to limit the power of future legislative sessions, but it won’t work. He can even disguise it as a change of Senate Rules (which violates the current Senate Rules), but that legerdemain doesn’t change the analysis.
The legal principle is well settled. As Justice Scalia wrote in Lockhart v. United States, 546 U.S. 14 (2005) (concurring opinion):
“[O]ne legislature,” Chief Justice Marshall wrote, “cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87, 135, 3 L. Ed. 162 (1810). “The correctness of this principle, so far as respects general legislation,” he asserted, “can never be controverted.” Ibid. See also Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803) (unlike the Constitution, a legislative Act is “alterable when the legislature shall please to alter it”); 1 W. Blackstone, Commentaries on the Laws of England 90 (1765) (“Acts of parliament derogatory from the power of subsequent parliaments bind not”); T. Cooley, Constitutional Limitations 125-126 (1868) (reprint 1987). Our cases have uniformly endorsed this principle. See, e.g. , United States v. Winstar Corp., 518 U.S. 839, 872, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996) (plurality opinion); Reichelderfer v. Quinn, 287 U.S. 315, 318, 53 S. Ct. 177, 77 L. Ed. 331 (1932) (“[T]he will of a particular Congress . . . does not impose itself upon those to follow in succeeding years”); Manigault v. Springs, 199 U.S. 473, 487, 26 S. Ct. 127, 50 L. Ed. 274 (1905); Newton v. Commissioners, 100 U.S. 548, 559, 25 L. Ed. 710 (1880) (in cases involving “public interests” and “public laws,” “there can be . . . no irrepealable law”); see generally 1 L. Tribe, American Constitutional Law § 2-3, p 125, n 1 (3d ed. 2000).
There are many outrages in the proposed legislation, but the attempt to make any part of it unrepealable is just a joke.
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But who can get standing to sue, and how long will it take for an apropriate case or controversy to make its way up the legal ladder to the SCOTUS, where it may or may not stand, depending on how many mouth-foaming leftists are sitting and voting?
The anti spam word is Soyuz!?
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