Progressives have never been big fans of our nation’s founding document due to the pesky little way it interferes with their Marxist-leaning objectives. This has never been as clear as it has with the Obamacare hijacking of America’s health…

As to whether the courts are likely to do anything, Public Citizen looks to the enrolled bill rule, and I think that the court may well hew to it as a general rule. Munoz-Flores illustrates the limits of the rule, however. There, although Justice Scalia advocated reliance on the enrolled bill rule, the court was willing to peel back the curtain and entertain the question of whether the origination clause was offended by the law at issue. The only member of that majority still on the court is Justice Kennedy, but it does show (and might be thought precedent for the proposition) that the enrolled bill rule has limits, particularly when the inquiry can be guided by relatively clear and judicially-manageable standards. In this instance, the constitutional question isn’t clear—not nearly so clear as the critics would have it—so if the court took a case arising from these shenanigans, the court might call it a political question, it might call it a presumption of constitutionality, or (most likely lead by Justice Scalia), it might find the enrolled bill rule the strongest ground for rejecting the challenge. Either way, what I don’t see is the court striking down Obamacare on the basis of the slaughter solution. There will be stronger, better challenges.

The only alternative is a robust, maximalist conception of judicial review that treats the elected branches like unruly children whose homework will be marked by the Court. It’s a vision that I support, because I find the notion that the political branches will follow the Constitution not just unbearably pollyannaish in theory, but falsified in practice. Nevertheless, historically, it hasn’t been one that has been popular with conservative crowds. Your rationale is essentially the premise of Flast v. Cohen: there has to be judicial review of establishment claims because the political branches can’t be trusted. (Of course, one can accept this premise without accepting the court’s conclusion that the rules must therefore be bent to ensure a supply of litigants.)

John Hart Ely caricatured the tension between the visions of Justices Frankfurter and Black: Frankfurter, the conservative, thought that everything should be reviewed, but lightly, while Black, the liberal textualist, thought that only some things should be reviewed, and with close scrutiny. I tend to side with Black, except that my focus on what should be reviewed is rather different. It seems to me that cases implicating the structural constitution should be reviewed with exacting scrutiny. Unfortunately, the down side is that you tend to produce an uncomfortably powerful and self-assured judiciary.

- The Speaker of the House, Dennis Hastert, signed the “corrected” enrolled version without sending the correction back to the House for a vote.

- The appellate court cited a case from 1892, Marshall Field & Co. v. Clark, in which the majority said, “Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act . . . should at any and all times be liable to be put in issue and impeached . . . . Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.” (emphasis added)

Given that both Marshall Field and Public Citizen stated that the enrolled version as signed by the leadership of the Houses is the “conclusive” and “unimpeachable” record of what “passed” the Houses of Congress, I’m surprised that Pelosi, Byrd, Obama and Biden are even concerned with votes at all. After all, once the leadership of Congress is set, if the only accepted word of what was passed is what the Speaker of the House and either the Vice President or the President Pro Tempore of the Senate say was passed, why have a vote at all?