The House votes to repeal Obamacare.

With all 242 Republicans voting yes, and all but 4 Democrats voting no. 3 Democrats voted yes. (Gabrielle Giffords was the only member of the House who did not vote.)

"He was a political radical & met Giffords once before in '07, asked her a question & he told me she was 'stupid & unintelligent.'"

One of many tweets from catieparker, a woman who supposedly knew Jared Lee Loughner, the man who supposedly has been detained as a suspect in the shooting of Gabrielle Giffords. She says: "I haven't seen him since '07. Then, he was left wing."

Via Jeralyn at TalkLeft. Also at TalkLeft, screenshots from Loughner's YouTube page, which make him look deranged. His favorite books include "The Communist Manifesto" and "Mein Kampf" — for what it's worth.

Giffords has apparently survived, but a federal district judge, who was also shot, has died:

Appointed by President George H.W. Bush in 1991, Federal Judge John McCarthy Roll was shot and killed today when an assailant opened fire in a Safeway parking lot in Ariz., where Rep. Gabrielle Giffords, D-Ariz. was meeting with constituents.

Just two years ago, he was targeted with death threats -- and given a security detail -- after ruling that a group of illegal immigrants could go forward with a multi-million dollar civil rights lawsuit against a state rancher....

U.S. Congresswoman Gabrielle Giffords shot, along with at least 11 othters, at a political event...

... in Tuscon.

UPDATE: Dead?  That's NPR (linked by Drudge). The NYT, updated 4 minutes ago, says her condition is unknown.

ADDED: Gabrielle Giffords was the member of Congress who had the honor of reading the First Amendment when the Constitution was read on the House floor January 6th. Video. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peaceably to assemble.

AND: Linking to my post, Instapundit says:

And judging from the comments to this post, people are already trying to score political points. Well, they kind of telegraphed this strategy, didn’t they? Remember Bloomberg making a fool of himself by blaming the Times Square bombing on the Tea Party? How about waiting until we actually know something, this time? That’s likely to be soon enough.

Yes. Please.

Are you watching the reading of the Constitution on the House floor?

I just turned on C-SPAN and hit the 2d Amendment right on the nose. Do I have some kind of right-wing instinct?

Here, you can watch on the internet. Hurry! They're up to the 6th Amendment.

UPDATE: The 10th Amendment won a spatter of applause.

UPDATE 2: John Lewis read the 13th Amendment – abolishing slavery — and that got a big round of applause. Section 1 of the 14th Amendment — read by Democrat Mel Watt — also got some healthy applause.

UPDATE 3: Silence at the 17th Amendment.

UPDATE 4: The word "sex" is in the Constitution.

UPDATE 5: You have one sentence to read: How can you mispronounce one of the words? Compulsatory, etc. etc.

UPDATE 6: Applause... either for the document as a whole, now completely read, or for the idea that they shouldn't give themselves a raise, which was the last thing read.

UPDATE 7: I missed the birther outburst. Did it really happen?

Rep. Jim Himes (D-Conn.) tweeted from the House floor that a "birther" had interrupted the Constitution reading that's been taking place.

Yes, it happened...



... from the gallery. It wasn't another Joe Wilson "You lie"-type situation.

UPDATE 8: The heckler — who has been arrested — yelled "Except Obama, except Obama. Help us Jesus." Jesus? Why drag in Jesus?

If redistricting produces new Hispanic-majority districts, will that benefit Democrats?

It's a complicated set of variables, explained by Nate Silver. After the 2010 census, Texas will get 4 new districts, and under the Voting Rights Act, that might mean that 3 of them will need to be "majority minority" districts deliberately concentrating Hispanic voters. That seems as though it undercuts the idea that the GOP benefits from the new districts in the red state of Texas. But majority minority districts can hurt Democrats overall, even if the districts themselves easily and predictably yield a Democratic congressperson every single time.

If a new Democratic district is created, those Democrats must be taken from somewhere else. It is quite possible that in the process of creating one new Democratic district, two or more districts will be tipped toward Republicans.

The key is how efficiently each party’s voters are allocated. What a party would prefer is that, in the districts where it has a majority, that majority is as small as possible, so as not to waste any of its voters.... Conversely, in those districts where it didn’t have the majority, it would prefer to lose by as many votes as possible — in fact, it would prefer to have none of its voters there at all.

What a party wants to avoid, meanwhile, is districts where it has say 45 percent of the vote: it’s using up a fair number of its voters, but not enough to give it a majority. It would also like to avoid districts where it has close to 100 percent of the vote, since so many of those votes will be superfluous.

Silver is explaining how complicated it is, but he's actually also oversimplifying, because he's assuming each vote is either a Democrat or a Republican. But if you set up a district with 45% Republicans and 55% Democrats, the Republicans might be able to win with a relatively liberal candidate, especially if the Democrats had a candidate who leaned too far to the left. How safe do you want the district to be? If it's super-safe, you waste votes, but the narrower you make the margin, the more likely it is that the other party can swing enough of your party's voters to win.

How predictably Democratic are Hispanic voters? As Silver notes, they are not as locked in for the Democrats as are black voters. Silver says that's what makes Hispanic-majority districts more helpful to the Democrats than black majority districts: A majority minority district can be created without "wasting" as many Democratic votes. That only works, of course, if these Hispanic voters still go for the Democratic candidate.

Silver doesn't talk about the fact that the GOP controls the Texas legislature, so it will dominate the decisionmaking about where the district lines are drawn. It may be able to craft majority minority districts that have a close enough political balance to allow them to win, or it may be able to figure out how to pack the consistently Democratic voters into one district. It's a subtle game, and the parties have gotten really good at playing it over the years.

ADDED: Please note that I've expressed no opinion about whether the Voting Rights Act actually does require Texas to make 3 of the 4 new districts majority Hispanic. I assume there will be plenty of litigation over this.

"U.S. population grew 9.7% in the past decade to 308,745,538, the slowest rate since the Great Depression."

CNN emails "breaking news."

ADDED: So who gains and who loses congressional seats?

By that new count, Texas will gain four seats, Florida will gain two, while New York and Ohio each lose two. Fourteen other states gained or lost one seat. The gainers included Arizona, Georgia, Nevada, South Carolina and Utah, and the losers included Illinois, Louisiana, Massachusetts and New Jersey....

Mr. Obama won eight of the nine states that are expected to lose seats, including Illinois, New York and Ohio. And of the eight states that were expected to gain one seat or more, five were carried by the Republican nominee, Senator John McCain of Arizona.

While Republicans will see their biggest and most lasting political gains in the House of Representatives, the landscape for the next presidential race will add another layer of complication to Mr. Obama’s re-election campaign. The battleground state of Florida, which he carried in 2008, will become even more critical to his efforts to win a second term and to Republican attempts to defeat him.

"Manchin stands by skirting votes."

Stands by skirting.

Are you distracted by language the way I am? Stands by skirting... It's like...  sits by pantsing... runs by shortsing....

And... while I'm at it... Manchin is a good name for a powerful masculine character. The feminine equivalent might be... Ladyfingers.

Secretary Ladyfingers sits by pantsing.

"The Pledge to America released by House Republicans in September of this year included a commitment to 'require every bill to cite its specific Constitutional Authority.'"

"To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law."

A 1933 Washington Post headline: "Present Lame Duck Session Will Be Last."

David A. Fahrenthoid explains the 20th Amendment to the U.S. Constitution:

The trouble with lame-duck sessions began in 1801, when the outgoing Federalists used their last days in power to help appoint a bunch of judges. It flared up again in 1922, when President Warren Harding and the lame-duck Republicans tried to ram through unpopular legislation after their defeats.

Opponents said this was un-democratic: These sessions seemed to violate the ever-popular Washington rule that "elections have consequences." Finally, Congress passed - and the states ratified - the 20th Amendment.

Historians say lawmakers thought they were ending lame-duck Congresses forever.

"This amendment will free Congress of the dead hand of the so-called 'lame duck,' " Rep. Wilburn Cartwright (D-Okla.) said as it was debated in 1932.

But Congress follows the letter of the law, and the amendment only changed the date of the end of congressional terms. It's a lot earlier than it was under the original Constitution, but it's still far enough from the elections to give a modern Congress plenty of time to work its will on the American people who may have just decisively rejected them.

With a devastating electoral loss behind them and a 13% approval rating, Congress flouts the intent of the framers and ratifiers of the 20th Amendment.

"Nightfall on the Kennedy era in Washington looks like this..."

"...Representative Patrick J. Kennedy’s office space surrendered to a Republican, his family memorabilia in boxes, and Mr. Kennedy yearning for a role away from the public eye."

"Are you serious?" — a constitutional law argument in the Bowers v. Hardwick tradition.

On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."

An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:

Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.

My emailer was James Taranto, author of the Wall Street Journal's "Best of the Web," which quoted my blog post yesterday and said:

We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.

Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....

Well, you'll feel better if you dance like Fred Astaire:



Here's Fred with the words to the Gershwins' "They All Laughed."

They all laughed at Rockefeller Center
Now they're fighting to get in
They all laughed at Whitney
and his cotton gin
They all laughed Fulton and his steamboat
Hershey and his chocolate bar
Ford and his Lizzie
Kept the laughers busy
That's how people are
They laughed at me wanting you
Said it would be, "Hello, Goodbye."
But oh, you came through
Now they're eating humble pie

But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power.  Chief Justice John Marshall laid down the broad interpretation:

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.

This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.

"Rangel Convicted of 12 Ethics Violations."

"The convictions cast a cloud over the half-century political career of Mr. Rangel, an 80-year-old Democrat who was recently reelected to a 21st term representing Harlem and who was the longtime head of the House Ways and Means Committee."

The consequence of this conviction will be "a letter of reprimand or formal censure," not expulsion.

"But the ousting of a wide swath of Democratic women Nov. 2 would chip away at a generation of female politicians inspired by the 1992 election..."

"... which saw a surge of Democratic women inspired to break up the boys’ club of Congress after Anita Hill’s testimony in then-Judge Clarence Thomas’s Supreme Court confirmation hearings the previous year."

Will you shed a tear for the departure of that generation of women politicians? What did they do, what did they change, and what will we think about women — what will the press say about women — when the women in politics are — gasp! — Republicans?

"Does Boehner Even Want to Win Big?"

Asks Mickey Kaus.

A bingo card for the upcoming Kagan debate.

I'm told this is making the rounds in Washington, D.C.



(Enlarge for easy reading.)

ADDED: I'm told this bingo card was distributed by Senator Cornyn's office for the Roberts confirmation:

Why should it be illegal for airlines to charge a fee for carry-on bags when they can charge a fee for checking bags?

I don't get it. No one likes to pay more for anything, but why should one particular way of collecting money from passengers be forbidden? If I'm getting on a plane with a bag and I could either check my bag or not, why should the cheaper option be the one that slows down other passengers in 3 separate places (the security line, getting on the plane, and getting off the plane)? Right now, the checked baggage fee has cost-conscious travelers dragging more bags on board. Why is it always the most annoying people who find champions in Congress?

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?

Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

The actual constitutional text is: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:

As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....

McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....

... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....

What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:

Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

"If you thought those were ironic smiles and hoots of approval in the Congressional audience, you were right."

Ah! So now irony may be hooted. In Congress.

***

I'd love to witness a hooting Senator wearing an acid-washed denim suit and affecting the stylish air of JFK.

"The Supreme Court has handed lobbyists a new weapon," says the New York Times.

The "weapon" is the First Amendment right to free speech, in a case about corporations and interest groups that aim political speech at the general public before an election. But "weapon" isn't the word I want to concentrate on here. I want to talk about "lobbyist."

Should we really be calling public speech "lobbying"?

The dictionary meaning of the verb "to lobby" is "To try to influence the thinking of legislators or other public officials for or against a specific cause."

Black's Law Dictionary — I'm looking at the 6th edition — defines "lobbying" as:

All attempts including personal solicitation to influence legislators to vote in a certain way or to introduce legislation.

But the political speech that the Supreme Court was talking about — advertising and a full-length movie about a candidate — isn't aimed at legislators and trying to influence their votes. It's trying to persuade voters. Why are we calling that lobbying?

This speech is out in the open for all to hear and accept or reject. It's not behind-the-scenes. There's no special access involved. Think of the origin of the term. It actually involves a lobby — in the sense of a foyer or antechamber:

Most likely, we got the term from the English Parliament, where petitioners would hang out in the corridors and reception rooms outside the chambers in which the legislature met, and try to talk to and persuade individual Members of Parliament to take up their cause as the Members walked in and out of the sessions...

[W]herever lawmakers have met — including Federal Hall in New York, the first seat of our U.S. Congress in 1789, and Congress Hall in Philadelphia, hangers-on and both wealthy and desperate petitioners were seen gathering in the rooms around the assembly, some of which were, and are, called "lobbies." The reception and meeting area behind the House chamber in the Capitol, for example, is referred to as the "Speaker's Lobby."

Another story has it that the lobby of the Willard Hotel in Washington -- one of its oldest and grandest — was frequented by wealthy special interest petitioners who were looking to intercept Members of Congress and the President, whose residence was a mere block away, as they came to dine there. It is said that President Ulysses S. Grant wearied of the petitioners whom he scornfully labeled as "the lobbyists."

But you don't hang around in a lobby — literally or figuratively — trying to get the ear of a legislator when you're exercising the the right the Supreme Court was talking about. You're talking to the people — the voters — and you're doing your best to get what you're saying out where everyone can hear it. I wouldn't call that "lobbying." And the reason against calling it lobbying is also a reason against suppressing it. The speech is out there in the marketplace of ideas, competing with other speech, exposed to argument and refutation.

Now, you might want to say that some speech is too loud and pervasive and strong, too much able to drown out competing voices in the marketplace of ideas. But if that's what you really want to say, it will be kind of ridiculous if you are The New York Times.

ADDED: On rereading, I can see that the NYT made the distinction between lobbying and political speech that I'm insisting on. Their — its —  idea of the new "weapon" is not the speech that corporations will make in the public sphere, but rather the threats of speech that lobbyists — defined properly — will make in private too legislators:

“We have got a million we can spend advertising for you or against you — whichever one you want,’ ” a lobbyist can tell lawmakers....

C-SPAN offers us transparency. Will Congress let us have it?

Or does it need those closed doors?

There's an old saying: "Laws, like sausages, cease to inspire respect in proportion as we know how they are made." But if we care about democracy, we should do what we can to strengthen the counterproposition: Laws, like sausages, cease to inspire respect in proportion as we are denied the chance to see how they are made.