Pro-Life fix for senate bill might seal Obamacare's fate (Huge Update: Deal is off; Stupak says he's 'Done with Pelosi')

House Speaker Nancy Pelosi has made a deal with Rep. Bart Stupak in order to secure his vote and that of other anti-choice Democrats for the health care bill, which is scheduled to be voted on this Sunday. According to a member of Congress who was briefed on the matter, Pelosi has agreed to let Stupak have a vote on his amendment, which instructs the Senate to substitute his language for the Senate language on abortion.

FDL has obtained a copy of the concurrent resolution (PDF1, PDF2, PDF3, PDF4), which includes cosponsors Marion Berry, Sanford Bishop, Joseph Cao, Kathy Dahlkemper, Steve Driehaus, Marcy Kaptur, Dan Lipinski, Alan Mollohan, and Nick Rahall. A second source confirms that with the exception of Cao, these are the members of Congress who are still on the fence. Cao is still considered a firm "no" vote.

The deal calls for Stupak to have a vote on his amendment either before or after the House votes to confirm the Senate bill on Sunday. Stupak is confident that he has the votes to pass the measure, and is happy to have the vote after the House passes the Senate bill. He believes that by using a "tie bar" approach, his amendment would be "tied" to the health care bill - which would require just 51 votes in the Senate.

If the math for self-preservation and winning in November was between 60% with a no vote and 40% with a yes vote, then I think the undecided Democrats might resist the president's overtures. My guess is that many of the moderate Democrats believe they are doomed regardless (say a 40% chance of winning if they vote no, 30% or less if they vote yes). In that case, the lure of future employment and making fellow Democrats and the president happy will win out.

If members voted their conscience, without pressure, I think the bill would get barely over 150 votes. It is an extremely expensive new entitlement that does almost nothing to curb the cost explosion in health care, and is financed by smoke and mirrors at a time when annual federal deficits are running $1.5 trillion a year for three years running, or more than 10% of GDP. It is the height of irresponsibility for Congress to have created a large new middle class entitlement in such an environment, when the nation is clamoring for jobs, not a massive health-care overhaul. But the liberals in Congress and the president, who is their BFF soulmate, seem obsessed with passing this very bad bill now.

I hope I am wrong, but I think the odds slightly favor passage (not 80%, maybe 60%).

In the end, Obama and Pelosi may have too much ammunition to keep this bill from becoming law. But as AT Submissions Editor Larrey Anderson , also writing in PJ Media this morning, points out, the challenges to this bill haven't yet begun:

Suits under the Fourth Amendment will be filed when the IRS seizes some working gal's wages as a "fine" for not having health care. The Fourth Amendment prohibits unreasonable searches and seizures.

These same citizens will sue under the Fifth and Sixth Amendments for similar reasons. It is difficult to sue the federal government (especially the IRS). But it is precisely the IRS, under ObamaCare, that will enforce and collect fines without the access of the citizens to either due process (Fifth Amendment) or a jury trial (Sixth Amendment).

Constitutional lawsuits may also be brought by private citizens under the Ninth and Tenth Amendments for reasons given above.

Depending on the last-minute shenanigans, members of the Congress who oppose the measure may also have standing to sue under Article I, Section 5 (if the rules of either the House or Senate are violated or disregarded) and/or under Article I, Section 7. (Article 7 states: "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.")

And that is the short list of possible constitutional challenges. Beware Democrats: if you pass ObamaCare, a constitutional hurricane is headed right for you.

While Larrey nails the issues, there is a chance that none of those challenges will be the "Silver Bullet" that can kill the entire bill. Michael McConnell writing in the Wall Street Journal may have such a weapon:

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.

So here we are at the 11th hour and the vote still hangs in the balance - barely. If the Stupak group bolts and joins the "yes" count, it would appear that the bill would pass with a couple of votes to spare. The "no" group would have to convince all remaining holdouts to follow them - an unlikely prospect indeed.

One bright spot; the Democrats have been predicting victory on this bill for months, bragging how they already have the votes for passage. As we've seen, this has been a passel of lies. It was an effort to create a sense of inevitability about passage and bore no relationship to reality. And while this whip count is based on declared positions by members, there's no guarantees that when the vote comes that members will stick to these positions. 

Consider the possibility of defeat for Obamacare hanging by a thread.

UPDATE

That thread just became a guidewire. According to Robert Costa via John McCormack's blog at Weekly Standard , Bart Stupak canceled his presser because Pelosi caved to the pro-choice crowd:

By all accounts Bart Stupak has been pushing for an ironclad guarantee that the bill would only pass on the condition that his amendment is included. Kathryn Lopez hears what I hear:

Prospects for a Stupak deal may be collapsing. (Which, yes, could mean prospects for a vote tomorrow are collapsing. Or it could mean the White House/Pelosi twisted enough arms.)

More:

Stupak swingers at the moment appear to be: Kaptur of Ohio, Berry of Arkansas, Cueller of Texas, and Rahall of West Virginia.

If you live in any one of these districts, you might want to buck your representative up.

UPDATE: With #s:

Berry (202) 225-4076

Cueller 202-225-1640

Kaptur(202) 225-4146

Rahall (202) 225-3452

Update: Robert Costa reports:

Two pro-life GOP members close to Stupak tell NRO that any Stupak deals are off. They just spoke with him and they said he's finished with Pelosi. They rejected his enrollment corrections proposal.