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  • The Slaughter Rule: Yet Another Reason Obamacare Would Be Unconstitutional

    As written, the current health care bill before Congress already is guaranteed to face serious constitutional challenges on enumerated powers, 5th Amendment, racial discrimination, and unequal state treatment. Now the White House seems determined to add a whole new reason courts will throw out Obamacare on sight. Director of the Stanford Constitutional Law Center at Stanford Law School and former-federal judge Michael McConnell explains:

    To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

    To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

    The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

    These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

    Posted in Legal [slideshow_deploy]

    75 Responses to The Slaughter Rule: Yet Another Reason Obamacare Would Be Unconstitutional

    1. David, St. Louis says:

      So who brings the case?

      And what are the Democrats thinking? Even if they're power hungry nuts, they have to realize that having their most significant legislative accomplishment thrown out by the Court is not going to help their image with the American public come election time. Unless they plan to take Court demonization to a whole new level.

    2. Billie says:

      The president stated those who vote for this health care bill this week, "will show true courage?" COURAGE TO VIOLATE THE WILL OF THE PEOPLE AND THE AMERICAN CONSTITUTION!

      i thought I heard him say "if you don't like your doctor, you can keep your doctor." ???…another angle…

    3. Jeff Brodhead, WA (s says:

      Thank you for this article. We all need bright spots in the day-to-day battle. This is a big, sunny day!

    4. stephen rosenberg, A says:

      Right. But what of all this "it's been done before" stuff, by Gingrich, et. al.? I'm sure your readers want to know why health care is different.


    5. Meredith Males says:

      We need to stop 'Obamacare'! If (shudder) it passes, it's good to know people are thinking of resources to use to rescind it. Thank you for giving me hope.

    6. Waynerd, Atl, Ga. says:

      As Pelosi says..Pass the Bill to see what's in it and trust us to amend it.

    7. Bill says:

      The people still speaks- We do not want this Obamacare.. Why does a select few -with the power still pushes for passing. The people needs to vote all these people OUT…

    8. Herman Parker, Texas says:

      Democrat tacticians have come up with a new way to circumvent the US Consitution which was set up to intentionally slow senate bills down to allow debate. The current trick called the "slaughter rule" would allow members to vote for ObamaCare without following the clear path the Constitution lays out in Article 1, section 7, #2. Here is that passage, crystal clear, in its entirety –

      2: 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; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

      These "representatives", including the "president", swore an oath to uphold the Constitution, so aren't they guilty of treason if they intentionally attempt to circumvent it? For every one of them that votes for this unconsitutional bill unconstitutionally, I'll push for a commission to be setup by the new conservative House and Senate to publically investigate each member for treason against the people of the United States. This would be much like the trials that sitting liberal members of the administartion want to conduct right now against attorneys for the Bush administration who advised the president, the military and CIA.

      The routine trampling of our Consitution has to stop if we want to continue as we have.

    9. Brian Fredell, Pearl says:

      Mr. Carrol,

      Why dont you try getting this republished/posted somewhere will it can serve as a didactic tool for people who are of more varied ideological viewpoints than you are likely to reach here?


      B. David Fredell

    10. Richard, Menlo Park, says:

      Two questions:

      1. Are there legal strategies and resources in place to initiate constitutional litigation should this abomination is signed by Obama?

      2. Is it true that my understanding that reconciliation allows the Senate to propose an unlimited number of amendments as a means to force unpopular democrat votes and delay the passage of the law?

    11. SB Owner Springfield says:

      Since when has the constitution meant anything to Obama and Democrats? The means justify the ends. A socialist utopia for we the people too stupid to understand what we need.

    12. J.C. Hughes, Texas says:

      Sounds like the congressional leadership run further amok. What kind of third world dictatorial rule is Slaughter arranging for her friends? Are states' rights at managing domestic affairs no longer considered sacred? Are we voiceless subjects to this congress and administration? What the heck is going on in DC? Throw these socialist bums out now!

    13. kim, largo florida says:

      What is the result of passing a law that has not been voted on properly. Could this lead to a new war in the courts or worse.

    14. Rick, Pa. says:

      It is good to see just what might be going on with this Unconstitutional Bill !

      But in plain words " Lay Man's Terms " what does all this really mean ?

    15. Spearshaker, Glendal says:

      Doesn't Pelosi or Reid ever read the Constitution? I'm appalled by their lack of knowledge and can't for the life of me understand how they ever got elected in the first place! Would someone please send them a copy with the ARTICLE 1 SEC. 7 underlined and in bold letters?

      President Obama got elected for all the wrong reasons; gift of gab, phony promises, and outright "LIAR-ABILITY". I can't wait for the 2012 elections!

    16. Deb, MN says:

      if they try to sign into law healthcare using the Slaughter rule could we as Americans ask for impeachment? Abuse of power, failure to defend the constituion would be a place to start. This is a powder keg with Obama holding a match!

    17. dixiepixie, Virginia says:

      Thank you for your timely message! We know that the Constitution is our law of the land, and so do our Legislators. We all follow it or pay the price. Again, thank you for your timely message.

    18. stirling, Pennsylvan says:

      I would hope that this administration is challenged on all consitutional issues that their policies make. Maybe if enough consitution is ramed down their throats that they will understand they are clearly on the wrong side of the arguement. At least challenging everything would slow this non-capitalist agenda down some and clearly highlight those who need to be tossed out of government come the next election.

    19. Ronald D. Weddle, MD says:

      Our federal government has ignored the Constitution ( which they swear to uphold) daily for about 75 years. When are We the People going to rise up and force OUR representatives and senators to uphold their oath? Or have we returned to that situation which Thomas Jefferson described when we are obligated to replace our government with a more responsible one?

    20. Duane Chapman, Littl says:

      The "Slaughter rule" is precisely why Americans of all political persuaions need to wake up and understand exactly what is being done to circumvent rule of law in total disregard to our Constitution, This is not merely "politics as usual". This is not about Democrats vs Republicans, or red states vs blue states. What is being attempted in Congress right now is repugnant and threatens our liberty. It is an attempt to fundamentally change the way our laws are enacted and at a time when our national debt is rocketing out ot control. Americans need to pray that Congress steps up to the plate and does what is right and not be extorted to do that which is blatantly wrong. The people are watching, and any that vote for this,shall be removed from office when they come up for re-election!

    21. Norma in Nebraska says:

      The GOOD NEWS is that we still have the Constitution and lots of bright legal minds who know what needs to be done to rectify the mess we are in. And I believe there are thousands of Americans just like me who don't like what is happening to our country, and all we are really looking for is someone we can trust to lead us.

      The BAD NEWS is that for way too many years we citizens have been sitting on our duffs thinking, "Well, I really don't like what is going on in my government, but what good will it do to make a fuss? I think I will put my feet up, watch a little TV and have some ice cream." This lack of involvement and expressed concern has led us to the place we are today. Old habits are hard to break but now we must if our country is going to survive so that my grandchildren can grow up in the free country like I did.

      This may very well be the most important time in my 63 years to stand up for and REQUIRE our government to return to the Principles that our forefathers put in place so many years ago. We must be willing to do WHATEVER IT TAKES in order to take back our government and put restraint on the power and money that now runs our country.

      Do not kid yourself . . . the mob we have in Washington right now KNOWS what the Constitution says, and they are determined to do what Queen Nancy indicated: jump the fence, tunnel under, fly in or do whatever it takes to get what they want. They honestly don't believe that any of us are going to try to stop them!!!! They are hitting us with a blitz of various issues all at once, and are counting on us to be so frustrated that we just give up!

      And for those who keep saying health care and cap & trade are dead, think again. These people have waited for YEARS to have this opportunity, and they are going to ram through as much as they can before the November election. What do you THINK the President is telling his fellow Dems while they are flying around on our dime? He is driving home the fact that this opportunity may never come again and that it is their DUTY to make a personal sacrifice for the Party and the Country! The President's agenda was well-defined BEFORE he got into office, and it doesn't stop with health care.

      So it looks to me that we better hope that the Republicans in the Senate can propose THOUSANDS of amendments to slow down this process . . . . maybe until the November elections if we are lucky . . . and we also better spend a lot of time on our knees praying for Divine Intervention on our behalf because we need all the help we can get!

    22. Timothy L. Pennell/C says:

      Yeah. The Slaughter rule is Unconstitutional. The MANDATING of people to BUT INSURANCE is Unconstitutional. Yeah. No kidding. Blah, blah, blah. Now….What are you gonna DO about it? Everybody TALKS, but nobody DOES anything. (I'm not stupid. I know that it has to PASS, before it can be challenged) But, what about the CZARS? Why hasn't the Constitutionality of these CZARS been taken to Court? The LEFT is always in the Courts. The Supreme Court rules on the 2nd Amendment in the D.C. Case, and now it's going back to the Court, in a CHICAGO Case. You guys at HERITAGE are great TALKERS. Let's hope you're prepared to put your MONEY where your MOUTH is, when this thing gets passed. Cause it's GONNA get passed. By hook or by CROOK.

    23. Kathy Jacobs says:

      I've never been so scared for my family. This is more than just health care this is taking over of the United States of AMERICA!! Grew up in Hell's kitchen had parents who always wanted me to get an education, went to college, became a nurse, married had two wonderful boys, one graduated from M.I.T. another from UKY, (American Dream) both just getting started and now they have all this government control to worry about. My father (God rest his soul) fought in the Battle of the Bulge how dare these people do this to my chidren!!

    24. DSmith,Gainesville F says:

      Is it possible for House Members to stall or stop the Healthcare Bill if they abstain or if enough are absent at the vote? If this is possible members could demonstrate to their constituents and the country that they are listening to the voice of the people and showing the leadership that they are wrong on the handling of this issue.

    25. JD, real world says:

      I believe the VP can override the Parlimentarian and call for an end to ammendments during the reconciliation policy.

      The Slaughter rule is another thing all together. It would surely be almost immediately presented to the Supreme Court who would quickly voted it down. Then what? I'd certainly approve of impeachment proceedings.

    26. Paul, Cedar Crest, N says:

      Just think, I was a Democrat back when there was Democrats. Every skunk needs to be voted from office and the American people take out country back. CONTROL OUR BORDERS, stop illegal's and their anchor babies!

    27. Lloyd Scallan - New says:

      Obama, and his ilk, pay absolutely not attention to our Constitution. Obama.has a plan to "transform" this country in SOCIALISM" and is using the Cloward & Piven strategy combined with Saul Alinsky manifesto in his plot for the destruction of our economical and political systems. Obama has a Marxist ideology that we had all better recogonize and understand before it's too late to stop this onslaught.

    28. Dennis Social Circle says:

      It is all about power and controll. The dems are mad, they do not care about this country or the people. If this thing passes we will no longer be the "land of the free, home of the brave", but will be the land of the ignorant lead by a government that is hell bent on tearing this country down.

      Ou founding FATHERS must be rolling in their graves, they would never have imagined that this country could be in so much trouble, those in power have thrown the Constitution out with the garbage, and are making up the rules as they go. I remember that a representative of the obama camp stated on Meet the Press, obama will begin HIS RULE on 1/20/09. Those words have became fact.

      We the people have to VOTE in 2010 and put Congress out in the street.

    29. Charles N. King says:

      I smell another attempt by liberals to subvert the constitution, I hope they try the slaughter solution. I can't wait to see the federal courts slap this down as unconstitutional. obama thinks he was perturbed by the supreme court ruling on campaign expenditures. He "ain't seen nothin yet".

    30. matt says:

      Thank GOD for our Constitution!!

    31. RKWAZ says:

      Thank God for our wise founding fathers.

    32. Sean, Madison, WI says:

      Yes thank "GOD" for the constitution written by man. If i'm not not mistaken the Patriot Act that your "godly" republicans passed is a complete desrespect for the constitution. What about all the tapping. Come on! A third of this country doesn't even believe in God. And if all of you are so rightous. Why do you try to deny people the right to health care. How christian of you.

    33. Sean, Madison, WI says:

      Last note…you are all playing into the corporations will. What would you rather have? A nation governed or a nation rules by corporations and the wealthy? Middle Ages should be put in the past.

    34. keli says:

      I love that "transparency" thing Obama spouted as a candidate!!!

    35. Philip&Dorothy J says:

      We have been a member of The Heritage Foundation for over a year. I requested a pocket copy of the constitution but have never received it. Now I understand they are giving 5 copies when you join. Could you help me get at least 1 if not 5 pocket copies? Thank You, Dorothy Johnson

    36. Cliff Holman says:

      HR 3200

      There's a pretty starling thing in the bill that 95% of Americans won't like.

      The Obama Health care bill under Class II (Paragraph 1, Section B) specifically includes ‘‘(ii) a class II

      device that is implantable." Then on page 1004 it describes what the term "data" means in paragraph 1…, section B: …

      14 ‘‘(…B) In this paragraph, the term ‘data’ refers to in 15 information respecting a device

      described in paragraph (1), 16 including claims data, patient survey data, standardized

      17 analytic files that allow for the pooling and analysis of

      18 data from disparate data environments, electronic health

      19 records, and any other data deemed appropriate by the 20 Secretary"

      What exactly is a class II device that is implantable? Lets see…

      The bill specifies Class II devices that are “implantable, life-supporting, or life-sustaining,”

      which is lifted almost verbatim from the FDA’s own definition of Class III devices. Class III devices

      “usually sustain or support life, are implanted, or present potential unreasonable risk of illness or injury,”

      the FDA writes on their website

      Which INCLUDES RFID implants“implantable, life-supporting, or life-sustaining,” to be administered at time of birth.

      Which INCLUDES RFID implants"for all federal prisoners" no chip no possibility for parole

      Which INCLUDES RFID implants"for all medical records" no chip no medical service

      Which INCLUDES RFID implants" for which Secretary of what? Dept.-

      The Bill does not specify "Secretary"- It leaves language open to interpetation. It assumes.

      This sort of device would be implanted in the majority of people who opt to become covered by the public health care option. With the reform of the private insurance companies, who charge outrageous rates, many people will switch their coverage to a more affordable insurance plan. This means the number of people who choose the public option will increase. This also means the number of people chipped will be plentiful as well. The adults who choose to have a chip implanted are the lucky (yes, lucky) ones in this case. Children who are"born in the United States who at the time of birth is not otherwise covered under acceptable coverage" will be qualified and placed into the CHIP or Children's Health Insurance Program (what a convenient name). With a name like CHIP it would seem consistent to have the chip implanted into a child. Children conceived by parents who are already covered under the public option will more than likely be implanted with a chip by the consent of the parent.

      Eventually everyone will be implanted with a chip. And with the price and coverage of the public option

      being so competitive with the private companies, the private company may not survive.

      The bill as written takes my "Rights" away, as a souverign American Citizen, where they have no authority.

      The bill as written will also set precidant, Government Mandateing Private Industry-

      Imagine those implications……..

      The bill assumes its a "right" to have health insurance, its not its a "privalage".

      Imagine those implications……..

      The bible is written- And that no man might buy or sell, save he that had the mark, or the name of the beast, or the number of

      his name. Here is wisdom. Let him that hath understanding count the number of the beast: for it is the number

      of a man; and his number is Six hundred threescore and six.

      –The Book of Revelation.The Bible is the truth

      My Voice

      Clifford L Holman-

      Californian – American

    37. Pingback: Pelosi Supports Breaking Oath Of Office In Acting On Slaughter Rule | The Hayride

    38. wkt, TN says:

      Let me get this straight…..we are assuming this Congress would have a problem doing something unconstitutional and have the majority vote in favor of the unconstitutional act? I could never imagine the Speaker would be in favor of doing something unconstitutional just to benefit her own party…..Yeah!

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    42. Richard Fletcher, Sa says:

      I couldn't agree more than with Spearshaker, Glendale Az

    43. Pingback: Pelosi Supports Breaking Oath Of Office In Acting On Slaughter Rule

    44. Rick says:

      Speaker Pelosi – "We will do whatever it takes to pass health care reform."

      What don't we understand.

      If they want it bad, we will get it bad.

    45. Kells says:

      Sean, it's people like YOU that have put this country on the path it's on. This country was founded on free enterprise. People that think corporations are the big bad guys and that government control is good should move to another country. That is NOT what this country stands for!! Take your Dem-witted self somewhere else and LEAVE OUR COUNTRY ALONE!!!

    46. Pingback: | Slaughter Rule for Healthcare

    47. Dean Koontz says:

      We the people have to remove the clowns that are running our Goverment

      before it's to late that's why our Founding Fathers had a revolution

    48. Pingback: Obamacare Slaughter Rule is without Precedent | Step Down Obama

    49. Mitch Baker says:

      While I find this whole thing unseemly and this health insurance re-form to be anathema to liberty, I don't quite see the big deal sbout this Slaughter rule thing. It isn't going to say anything like "the House deems passed the original Senate bill PROVIDED the Seante passes reconciliation", right? It can only say "the House deems passed the original Senate bill along with the House's passage of reconciliation (which might not be enacted, either due to failure of Seante passage or presidential veto)". That seems within the bounds of the House. I don't know how CBO can score reconcilation without the Senate bill first becoming "current law", I can't see how any constituent would see this as acceptable cover for their house member, and this certainly seems unprecedented. However, I still don't see the constitutional crisis.

    50. Erich, Winston-Salem, NC says:

      So far, The Obama Administration has show absolutely no regard for the United States Constitution.

    51. Nick in Virginia says:

      I'm so tempted to say let the Democrats use the Slaughter Rule to pass healthcare reform, then take them to court over it. It's bad enough when a law is deemed to be unconstitutional by the SCOTUS, but having it find that the law was PASSED in an unconstitutional manner says a lot of negative things about the Congressional leadership and the President for signing it (actually, it says one thing, very loudly – they are CORRUPT).

      Of course, no one knows what the SCOTUS will do, but for Republicans, I think this is a worthwhile risk (if the bill were passed by a true "up-or-down vote", there would be no recourse but trying to repeal it somewhere down the road). For Democrats, it could prove to be devastating for their party, for a long time.

    52. Pingback: Obamacare Slaughter Rule is without Precedent

    53. how to survive twent says:

      Oh! This is awesome! Thank you for putting to rest severalsome

      confusion I had seen about this as of late.

    54. Pingback: Obamacare Slaughter Rule is without Precedent | Fix Health Care Policy

    55. Keith, 98374 says:

      The violation of the Constitution imagined by the "deem" rule just makes the revocation of this even more certain.

    56. Nate, New York State says:

      Well at least one good thing has come from this progressive movement led by obama,pelosi,reid and schumer. Americans now see what is being attempted to destroy our fundamentals of existence. More and more people are really paying attention to the constitution, Bill of Rights and raising their voices. If these progressive agents of the people do not correct the path they are on,after November,the only place they will be able to call home is Venezula. May the light of the constitution shine as bright now as it did in 1776.

    57. Pingback: The Senate Health Bill: Ordinary Americans Have Been Warned | The Foundry: Conservative Policy News.

    58. Jim, Omaha says:

      There are historical precedents of the GOP using this same type of rule – without any noise about violating the Constitution. So, besides the fact that the GOP doesn't like the Democrats doing this, what is the basis for this argument?

    59. Pingback: The Senate Health Bill: Ordinary Americans Have Been Warned

    60. Pingback: Slaughtering the Constitution

    61. how to survive twent says:

      Ah! This is perfect! Thank you for putting to rest severalsome

      misconceptions I have read about this lately.

    62. Pingback: The Senate Health Bill: Ordinary Americans Have Been Warned | Fix Health Care Policy

    63. Ashley, Nashville, T says:

      Wouldn't the bill be considered unconstitutional on the basis that all bills that raise revenue must originate in the House? (All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Aritcle 1, Section 7) With all the new taxes and "revenue raising" provisions in it, I would think this one would qualify. This bill originated in the Senate. I find this whole affair deeply unsettling and an affront to the Constitution as well as an insult to the American people's intelligence. If there are any Constitutional scholars who can clarify the minutiae, I would like to know the correct answer.

    64. Erica Brown, Hays, K says:

      What is the slaughter rule exactly?

    65. Syd Knee, Chicago, I says:

      Stephen — I wouldn't get too carried away on the "sunny day" part. Isn't it strange that this constitutional scholar is not citing precedents? If he looks them up, he'll get a rude awakening. The Supreme Court (Marshall Field v. Clark; basis for dismissal of challenge to the 2005 Deficit Reduction Act) is generally uninterested in Congressional procedure. The Court will ask: Did a presiding officer from each House certify the passage of this bill? If the answer is "Yes," then the Court is no longer interested. In short, this bill won't be found unconstitutional. But y'all should relax anyways. No one who votes for the Slaughter rule will be able to straight face say they didn't vote for the Reform Bill. And if one does, you have two issues–he or she voted for the bill AND is a dirty liar. But even Democratic House Members aren't dumb enough to fall for that one.

    66. Syd Knee, Chicago, I says:

      …and to answer Ashley's question, the bill did originate in the House so that's not an issue.

    67. Pingback: Slaughter Rule Not Defended by President | The Foundry: Conservative Policy News.

    68. Pingback: Common Man Government » March Madness

    69. Sigismunt Kreusz says:

      If good American Conservatives and Republicans and other Volkisch people will vote their consciences, we can finally rid American business and society of that awful monkey on Big Business' back: medicare and Social Security which are bankrupting us all. Also we must end the tax on dividends as confiscatory and end all inheritance taxes!

      All of America's problems can be traced back to the establishment of these socialist mandates by the Democratic Roosevelt administration, in combination with the more sinister elements of the world conspiracy and even some liberal Republicans. It's true!

      Once the requirement that the government print phony money to keep useless people in luxury, often for 40 years after they retire, business can again begin to think about hiring in the USA, instead of having to work with foreigners and the other..

      No one should think they have a right to be kept at government expense, just becaiuse they don't want to work. No more money for freeloading non workers!

      Kick out the Reds and dirty, un-American Democratic Amerikans and send them to camps to make them work for the state!

    70. Pingback: Too pissed to post… « Annie's Closet

    71. Pingback: the totalitarianism of the democrats and obamacare | Blatherings Blog

    72. Pingback: Obamacare Slaughter Rule | Ask Mrs Figgins

    73. Pingback: My Outrage Keeps Getting Usurped By More Outrage

    74. Winston on Truth, Or says:

      If a Treaty fails to uphold the US Constitution, then is the act to ratify that Treaty is also unconsitutional? When the Congress fails to seek input from the People has that Congress violated their oath of representing the People within the confines of the Constitution?

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