Sleight of hand

Digby has joined our earlier discussion of the freakish confidence with which the Republicans are attempting to destroy any limits on majority party action. He also says the entire filibuster argument may be a red herring:

This isn't a new thing, but like so much else lately in wingnut governance, it was until quite recently a fringe position that nobody took seriously. Indeed, even conservative legal scholars like John Yoo, who is not one would ever call a moderate, disagrees with this interpretation. But, it has clearly gained currency recently. The Senate, for instance, has put forth several more or less symbolic bills that are explicitly exempted from judicial review. There's S. 1558, the "I can put the 10 commandments anywhere I damn well please and judge is going to tell me I can't" Act. And there's S. 2082, the "I can say God told me to do this and no judge can say it's unconstitutional" Act (also known as the "foreign govmint's got nothin' to do with our laws" Act.) And then there's S 3920 the "two thirds majority can overturn the Supreme Court" Act.

But these have no chance at passage. The "Real ID" bill, however, does. As far as I've been able to ascertain, nobody has ever actually passed and signed a bill that would explicitly exempt legislation from judicial review. This is unprecedented and if it happens it should trigger a constitutional crisis. If congress can pass any laws it wants and declare them exempt from judicial review --- as with the Real ID bill -- and also peremptorily "bar judicially ordered compensation or injunction or other remedy for damages" then our system of checks and balances has been gutted. There will be nothing to stop a majority, particularly if it ends the filibuster, from passing any laws it chooses with a simple majority and exempting all of them from judicial review for constitutionality. In other words, the constitution says what the majority says it says.

Which would pretty much mean we don't need a constitution, since mob rule would work just fine!