Posted by: Debby Durkee | September 14, 2010

Prosecute Pelosi?

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Prosecute Pelosi?

Jeffrey Lord over at The American Spectator has an interesting idea that probably won’t get done, but it is worth thinking about. He suggests that once Republicans gain control of the House of Representatives they should bring a prosecution against (former, we hope) Speaker Nancy Pelosi for basically ignoring the Constitution during the Obamacare legislative session. He suggests that this whole process would serve as a renewal of the Constitution and as a teaching moment for the country at large.

In The Ruling Class: How They Corrupted America and What We Can Do About It, Angelo Codevilla provides an excellent idea. Turn the tables on those who have shown a repeated determination to ignore the Constitution. (He includes President Obama in his formulation, but for the sake of constitutional simplicity, we’ll stick with Speaker Pelosi here.) If in fact the Pelosi and Reid Democrats are relieved of their control of the House or Senate or both this fall, come January it is time to begin re-focusing Americans on just why it is America has a Constitution in the first place. Why we have it, what it says — and the fateful consequences of ignoring it.

One of the best methods to teach on this issue, although surely not the only method, is to take Pelosi’s disdain for the Constitution and use Pelosi herself to illustrate just how important the Constitution is and why we need to return to a serious understanding of it. And — horrors! — abide by it.

What would happen if such a piece of legislation calling for the prosecution of Pelosi were introduced in, say, a newly Republican-run House of Representatives come January? Why, according to time honored tradition, the bill would be assigned to committee, of course — in this case doubtless the House Judiciary Committee…Snip —

Codevilla points out with some understatement that members of what he calls the Ruling Class — let’s just call them Democrats in this example — would arise, suddenly alarmed. They would demand, heatedly no doubt, as to where in the Constitution any authority exists to prosecute the former Speaker, now simply a Congresswoman from California and possibly the Minority Leader, with such an outrageously un-constitutional piece of legislative, well, garbage.

At which point: a hearing is called to discuss the bill.

This is where Codevilla’s perceptive point gathers steam.  Snip –

a hearing to strip a former Speaker of the House of her rights and explore an ex post facto prosecution removing any possibility for judicial review? This is sex, drugs and rock and roll in Washington.

And therein lies the teachable moment on exactly how and why Pelosi’s disdain for the Constitution — a disdain shared in countless forms over the decades — should be used to educate a new generation of Americans.

The Pelosi Prosecution hearings should be a wide open exploration of the U.S. Constitution itself…This is the moment to enlist the aid of colleges, foundations, and others in initiating discussions of the Constitution across America and in the media.  Snip –

The very first witness should be Nancy Pelosi herself, called to discuss her view of the Constitution and just why she should not be prosecuted. 

But don’t stop with her. There is a veritable cornucopia of witnesses who could put a spotlight on the Constitution, its proper use — and its abuse. Former Reagan Attorney General Edwin Meese, talk radio star Mark Levin, the head of the Landmark Legal Foundation and author of the bestsellers Men in Black: How the Supreme Court is Destroying America and Liberty and Tyranny: A Conservative Manifesto.

Bring on Justice Scalia, the indomitable former Judge Robert Bork. Summon the lawyers, the ex-judges, the journalists, the preachers and the teachers. And the liberals. Don’t forget them. Called on the carpet to illustrate why the Constitution is ignorable for health care but not in prosecuting Pelosi will be worth the price of the popcorn.  Snip –

The future President of the United States (Barack Obama) opposed “the essential constraints” of the Constitution. Is there a wonder he, along with Pelosi, believes in just instructing Americans that from now on they have to have health care, the Constitution be damned?

All of this collectively — the Court decisions, the constitutional ignorance, the willful decision to ignore the explicit principles of the Founding document upon which the country is supposed to run, with everyone’s rights protected — is reason aplenty the Pelosi probe should go for some time…

He suggests going through all of this and sending the prosecution of Pelosi to the floor for a vote, which should get a unanimous, “no.” Which would point out that the Constitution should always be followed, whether it is for one of the elites or for the American people. He thinks this might scare some people who have been continuing to ignore the Constitution and wake many others up who have been sleeping while their rights have been trampled. You can read it all here:

Obamacare’s fatal flaw.

Speaking of Obamacare and Pelosi’s ignoring the Constitution, Louis Case writes to say that Virginia Attorney General Cuccinelli seems to think he’s found its fatal flaw. It all stems from the election of Scott Brown to Teddy Kennedy’s Senate seat giving Republicans 41 Senators. Maybe the people of Massachusetts actually did stop Obamacare afterall even though Sen. Brown was unable to vote on it due to the arrogance of the Pelosi Democrats. My Facebook status yesterday was a quote from Sun Tzu: “The downfall of the arrogant is their arrogance.” Well, let’s hope that wisdom is at work as it pertains to Obamacare. This is from the American Thinker website.

…Brown’s election has trapped Congress in its own sloppy arrogance.

In a September 8 appearance on Greta Van Sustern’s “On The Record,” Virginia’s Attorney General,  Ken Cuccinelli, explained the significance of the Brown victory in the context of Virginia’s lawsuit to overturn ObamaCare.

In 2010, before ObamaCare was passed, the Commonwealth of Virginia passed its Health Care Freedom Act, which says, more or less, that Virginia residents cannot be required to buy health insurance. After ObamaCare passed, Virginia sued in federal court to have ObamaCare declared unconstitutional because it exceeded the scope of the Commerce Clause. The case already survived its first challenge by the federal government. 

One section of Virginia’s Memorandum in Support of the Motion focused on the issue of severance.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts — a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended. 

So, this is a revolting development for the Democrats, isn’t it? It certainly gives me much hope. All of their scrambling; all of Pelosi’s jumping over fences and going over walls (or whatever she said that she was going to do to ram this legislation through no matter what) might have just reach a higher wall: the severance clause. They might not believe in the Constitution, but they can’t automatically change legislative procedure, or can they? I guess we’ll just have to wait and see, but this looks like a bridge too far or too high for a pole vault. Read it all happily here:


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