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Deem and Pass

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The latest constitutional dust-up over health care reform concerns whether the dDeem-and-pass rule proposed by Congresswoman Slaughter for passing the Senate bill though the House is constitutional. The problem, for anyone who has not been following the health care reform battle minute by minute, is that a lot of House members hate the Senate bill and are not eager to vote for it. But the Senate bill must be adopted by the House before it can be “fixed” through reconciliation. Rather than pass the Senate bill as such, the proposal is to pass a “special rule” that will “deem” the Senate bill to be adopted once the reconciliation bill is adopted. In effect, Congress will vote on the Senate bill, but they will pretend that they didn’t.

Is this procedure constitutional? Professor McConnell, writing in the Wall Street Journal, contends that it is not. He argues that it violates the bicameralism and presentment requirements of Article 1, sec. 7 of the Constitution. He cites an earlier case, Clinton v. City of New York (1998), in which the Supreme Court struck down a statute as unconstitutional because it violated the procedures established by this provision of the Constitution. But the Clinton case (and the case of INS v. Chadha (1983), cited by other critics of the deem and pass rule) dealt with very different circumstances. Clinton addressed the line-item veto law which allowed a President to sign a bill and then cancel parts of it, clearly not allowed by the veto provisions of Art. 1, sec. 7. Chadha allowed one House to by vote overrule an executive determination, clearly violating the bicameralism requirement. Neither addressed the validity of an internal Congressional procedural rule.

In fact, Article1,sec.5 provides that “each House may determine the Rules of its proceedings” Although the federal courts will hear challenges to federal laws that are not adopted in accordance with express constitutional requirements, United States v.Munoz-Flores (1990), the Courts do not get involved in disputes over internal rules, which are the provenance of the legislative branch. Public Citizen v.District Ct. (D.C.Ct . App. 2007). Professor McConnell cites the “yeas and nays” vote requirement of section 5 as demanding a vote on any bill passed by a house of Congress, but that provision only applies if such a vote is demanded by one fifth of those present, and does not specify what rule the vote shall be on. Indeed, the rule refers to a vote on a “question,” not a bill.

The special rule procedure has been used repeatedly for nearly 80 years to pass dozens of bills at the instance of both parties; often politically decisive or unpopular bills. If it were to be ruled unconstitutional, dozens of laws would come under challenge, including a many of the federal expenditures appropriated in recent years since the raising of the debt ceiling is often done under a special rule. Who wants to open this can of worms? The real question is whether there will be a vote that adopts the language of the Senate bill, meeting the bicameralism requirement. If that happens, the procedure through which it happens is not of constitutional significance.

Having said that, I wish the House would not take this approach. Using an arcane rule to pass the bill only adds fuel to the fire of the right-wing demagogues who are claiming that this bill, after a year of exhausting public debate, is somehow being rammed through. It is necessary to use the reconciliation process, which people already find confusing, to get this legislation done. Deem and pass is not obligatory. Moreover, the law will undoubtedly be challenged, and we, frankly, have a right-wing activist Supreme Court that has shown itself capable of reaching result-oriented political decisions and does not feel particularly bound by precedent. Why provoke them? It will be clear to absolutely everyone anyway that the House members have in fact voted to accept the Senate bill, as modified through reconciliation, of course. The House should just get it done.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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