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RUSH: This is Nancy in Incline Village, Nevada. It’s great to have you, Nancy. Hi.

CALLER: Hi. How are you today?

RUSH: Very well. Thank you.

CALLER: I’m calling about Article I, Section 5 of the Constitution. The House Republicans can still stop this health care bill right through the Constitution. Section 5 provides that ‘the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the journal.’ In other words, the Republicans can require that there be an up or down, recorded vote on the health care bill regardless of the Slaughter rule.

RUSH: So you’re talking about the Senate bill that they’re trying to ‘deem’ to have passed. You’re saying the Republicans can demand with 20% a vote, up or down, on the Senate bill?

CALLER: Yes, sir, they can. I called my House representative to ask him to do this and I was told that the House leadership is taking the position that another section supersedes this. The leadership is quoting also Article I, Section 5, of the Constitution which provides each House may determine the rules of its proceedings. But I am a retired attorney. I worked for the Department of Justice for many years. I practiced appellate law. I was involved in a lot of cases regarding statutory and constitutional interpretation, and I can tell you that they’re wrong. There’s a general rule, a statutory interpretation which provides that a specific section of the law will overrule a general section and will control the issue. Therefore, this specific section of Article I, Section 5 — which says you can require an up-or-down vote — in this case is going to trump the general part, which says that they get to make their own rules.

RUSH: Well, now, have you explained this to them as authoritatively as you just have to me and my audience?

CALLER: Well, yes. I tried to tell them that, and they said, ‘Well, the House leadership is taking this position.’ If the congressional leadership is taking this position, are we going to take Nancy Pelosi’s word for what the Constitution says, when John Boehner and the Republicans can get out there and actually require a vote?

RUSH: I understand, but they did get a vote on whether or not the Slaughter solution will be used at all, and they shot that down, of course. That got 30 minutes of debate on that. That vote was mincemeat.

CALLER: Yes, but that’s a different legal issue. If they pass a law where the Republicans have requested an up-or-down vote — or any 20% of the House request an up-or-down vote — the law wouldn’t be voidable. It would be void. It would be illegal and unenforceable. And the reason I’m calling I tried to call my own representative. I don’t feel like the word got through and the hope the Republican House is listening and that they will not a Nancy Pelosi’s word on this and that they will actually make a formal request under Article I, Section 5.

RUSH: Run me through it again because this is news to me. Article 1, section 5, what does somebody…? I guess you’re talking about Boehner, but any Republican could do what?

CALLER: Anyone who can get together 20% of House membership can require an up-or-down vote because it does say ‘the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the journal.’ They can force the nays to be taken down and the up-and-down vote to be given.

RUSH: Hmm. I am, of course, not a constitutional scholar nor constitutional lawyer, and I’m going to have to defer to people who are. But you were an assistant US attorney, Department of Justice?

CALLER: Was an assistant US attorney. I was a chief assistant US attorney. I worked in appellate law, specifically, for several years. I also served as the deputy assistant secretary for law enforcement at the Treasury department.

RUSH: Huh. Okay. Impressive. I’m glad you got through. I really am, because they are listening. They do listen. There is the cowed factor with Pelosi, there’s no question, in more ways than one.


RUSH: Constitutional scholars are, at this moment, looking into this. I got ahold of F. Lee Levin. Andy McCarthy is also looking into this. That was a fascinating a lady in Incline Village, Nevada. Her name was Nancy. Are you there, Flee?

MARK LEVIN: I’m here, boss.

RUSH: All right. Article I, Section 5. It was all Greek to me in terms of procedure. What was she actually suggesting?

MARK LEVIN: Well, she’s saying that 20% of the members can demand that a vote be taken or the bill. Now, let me ask you something: If that were the case don’t you think the Republicans would have done that already?

RUSH: I don’t know. I’m literally… When I say, ‘It’s Greek to me,’ it’s Greek to me.

MARK LEVIN: No. That’s why you have a House rules committee and the House rules committee makes determinations over what bills will be voted on and what bills will come to the floor and what amendments there will be. I mean, you can call for a voice vote — yays and nays — on a bill that’s presented to the House. But 20% can’t force a bill to come out and be voted on.

RUSH: So she’s mistaken or is she just…?

MARK LEVIN: Well, I believe she’s mistaken, but let’s pretend that she’s right.

RUSH: All right, let’s. Yeah, go at it that way because a lot of people are fired up about this.

MARK LEVIN: All right. Let’s suggest that she’s right and you go into court, and what do you say in court? You say, ‘Well, 20% of them wanted to vote on this bill and they couldn’t,’ which I don’t think that’s the way that it works. If I’m wrong, then we have 200 years of mistakes going, but 20% of the members say this needs to come to a vote, and so the court says, ‘So what? That’s their problem. They didn’t do it. That’s not our problem. What do you want us to do?’ So, in other words: What’s the relief?

RUSH: Wait a minute. You’ve already lost me on going to court. The way I understand what she’s saying is let’s just say Boehner can say if he’s got 20% of the House, ‘We want you to vote on the Senate bill.’

MARK LEVIN: Yeah, but I’m saying it doesn’t work that way. They can say, ‘We want a yea-or-nay vote,’ and you hear them do it on the floor: ‘I want to hear the roll call. I want to hear the yeas or nays, not just a voice vote. We want to take the names down on a particular bill that’s before the House.’ So we want yeas or nays on reconciliation you’ll get it but we can’t have yeas or nays on a bill that the rules committee hasn’t presented to the floor.

RUSH: Ah, okay, because the Senate bill is technically not a bill. They’re ‘deeming’ it to be passed so it’s not really a bill. They’re pretending it doesn’t exist?

MARK LEVIN: That’s correct. So, look, there’s no easy way around this. I’m getting callers to my show with 4,000 ideas, everything from amending the Constitution… That rule there simply means, and how it’s been practiced traditionally over the last 200 some years is, a member can get on the floor and say, ‘Take down the yeas or nays,’ or ‘We want to hear the votes,’ or, ‘Give me a roll call on that,’ and they usually say okay, because 20% is not hard to get to get that done. But it’s not that 20% can force a bill to the floor, and that’s what you would be doing, you would be saying 20% say, ‘No, we want a vote on the Senate bill, up or down,’ and I know I’m right about this.

RUSH: But I remember her saying, though, that in her opinion the rules committee ruling would not take precedent.

MARK LEVIN: But she’s misreading the Constitution. That’s not how it works. It’s not a question of precedent if it doesn’t work that way. Twenty percent of the House members can’t call up a bill. Twenty percent of them can demand a vote on a bill that’s called up.

RUSH: And the only bill is the Slaughter solution, the reconciliation amendment.

MARK LEVIN: Well, that’s exactly why they’re doing it this way.

RUSH: Right. Okay. So the Senate bill can be obviated, avoided, and pretend it doesn’t exist at all costs.

MARK LEVIN: Yeah, and, you know, they have all kinds of smart people Republican parliamentarian types on Capitol Hill, and I can assure you that if it was as easy as that caller just said it would have been done already.

RUSH: Okay. Nevertheless, a lot of interest been sparked on this, and I appreciate you trying to sort it out.

MARK LEVIN: That’s good because we need to kick ass and stop this.

RUSH: Well, I know, and it’s all about Sunday. It’s all about Sunday when the Senate bill. Thanks for the clarification on this, Flee.

MARK LEVIN: All right. God bless.

RUSH: Mark R. Levin of the Landmark Legal Foundation. He was the chief of staff to Ed Meese as attorney general during the Reagan administration, and stopping the bill is exactly what this is all about.


RUSH: Ladies and gentlemen, in particular Nancy from Incline Village in Nevada, I’m not trying to referee an argument here and say anybody’s right or wrong. I’m very appreciative of Nancy’s call. I’m very appreciative of her effort here to find a way to stop this, and I think everybody who is looking into this in any way, shape, manner, or form is to be applauded. I appreciate her calling in here and we got a lot of people that are looking at this. It does appear that you can’t call for an up-or-down vote on a bill that doesn’t exist and right now in the House the Senate bill doesn’t exist, that’s what this is all about. We got a Senate bill, everybody knows we’re voting on the Senate bill, but they’re hiding it. They’re using reconciliation. We could call for an up-and-down vote on that, which is what they want, when they got the votes, but you can’t call for a vote on a bill that hasn’t been presented and the Senate bill hasn’t been presented and it’s not going to be presented.

We didn’t put Mark on to knock down Nancy. I don’t want anybody thinking that. Here at the EIB Network we’re always trying to get to the truth and when I don’t understand it I’m not going to pretend I do and act like I understand it, I’m going to find out people that know more about it than I do and have them explain it to you, and that’s what it is.

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