Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 20, 2010

Is “Deem And Pass” Constitutional ? Neither The Question Nor The Answer Are As Simple As You Think

by Doug Mataconis

As the debate over health care reform approaches it’s final hours in the House of Representatives, there’s been much discussion over the past week over a rather obscure topic — the internal operating procedures of the House of Representatives, and specifically the apparent intention of House Democrats to use something that has been called “deem and pass” to get the Senate Bill approved and a Reconciliation Bill to the Senate.

The first question, of course, is exactly what “deem and pass” actually is, and George Washington University Professor Sara Binder gives perhaps the best explanation I’ve seen to date:

So how is the process likely to unfold? We can’t be entirely sure of all the details yet, but it will likely start on Saturday when the Rules Committee meets, most likely in its usual room in the Capitol—a tight squeeze with just a handful of spectator seats. At that point, the committee will unveil its recommended special rule and debate it. We don’t know yet for sure what the rule will say. There will most likely be that self-executing provision that “deems” the Senate-passed health care bill as passed by the House upon adoption of the rule or upon House passage of the reconciliation bill.

(…)

The Rules Committee has now written up a special procedure for its debate and the House has approved it. If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would—at that point—be ready for presidential signature. Health care reform, in other words, would be ready to become law. But it’s more likely the rule will stipulate that the Senate bill becomes law only after the House approves the reconciliation package. If so, reform’s fate will still not be settled. It will depend on whether the reconciliation bill passes.

And so the House will proceed to debate the reconciliation package, in whatever manner and for whatever duration the rule stipulates. Most likely, no amendments will be allowed. Once debate is exhausted, the House will move the previous question motion again, this time in preparation for final passage of the bill. Again, it will take 216 to agree to the previous question motion, setting up the climactic vote

(…)

[I]f all has gone according to plan for the Democrats, the chamber will come to its up-or-down vote on the reconciliation bill. If 216 members vote yes, the reconciliation bill will go to the Senate. And the main Senate bill? That one will enter the “enrollment” process to prepare it for its journey up Pennsylvania Ave to the White House.

Doesn’t exactly sound like Schoolhouse Rock does it ? That, I think is one of the reasons that we’ve seen such a strong reaction to this issue from many pundits and members of the public. Whether it’s right or wrong, it doesn’t seem right. Politically, it’s a dumb move that I think Democrats will come to regret. But what about the Constitution ? Is “deem and pass” Constitutional ?

Former Federal Judge Michael McConnell was among the first to state publicly that the answer is a clear no:

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.

It seems like a fairly straightforward, textually sound argument, and many on the right have essentially adopted McConnell’s argument as their own. Both Virginia Attorney General Ken Cuccinelli and talk show host Mark Levin have said that they intend to file lawsuits if the House utilizes the “deem and pass” strategy.

It turns out, though, that the answer isn’t quite as simple as McConnell makes it out to be.

In 2005, the Circuit Court of Appeals heard a case titled Public Citizen v. US District Court for DC. In that case, Public Citizen, joined by Members of Congress including Nancy Pelosi and current Rules Committee Chairperson Louise Slaughter (of the “Slaughter Solution) were challenging a “deeming” procedure used by the Republican-controlled House.

Here’s what the Court said:

The District Court held that Public Citizen’s bicameralism claim is foreclosed by the Supreme Court’s decision in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of “the two houses, through their presiding officers” as “conclusive evidence that [a bill] was passed by Congress.” Marshall Field, 143 U.S. 672-73. Under Marshall Field, a bill signed by the leaders of the House and Senate – an attested “enrolled bill” – establishes that Congress passed the text included therein “according to the forms of the Constitution,” and it “should be deemed complete and unimpeachable.” Id. at 672-73. Recognizing that Marshall Field’s “enrolled bill rule” prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen’s complaint and denied its motion for summary judgment. Public Citizen, 451 F. Supp. 2d 109. …

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v.Doe, 544 U.S. 1, 6 n.4 (2005).

In Marshall Field, the Supreme Court said:

The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable.

(…)

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself—nothing to the contrary appearing upon its face—that it passed congress

So, assuming that Marshall Field applies, once Nancy Pelosi and either Vice President Biden, as President of the Senate, or Senator Byrd, as President pro tempore attest that the bill has passed their respective houses, that is the end of the matter unless the Supreme Court ends up over-ruling a 118 year old precedent and creating a Constitutional crisis.

KipEsquire has made some good points suggesting that Marshall Field might not apply in this case, but it doesn’t end there.

I vaguely recalled learning the Enrolled Bill Doctrine in law school. Not in a Constitutional Law class, mind you, but in Statutory Interpretation. That’s because the Doctrine is not a true constitutional principle. It is, at best, an editorial footnote, one that deals only with Congressional scrivener’s errors, not with major foundational questions of federal lawmaking.

This is why those — even those who oppose Obamacare — citing to the Enrolled Bill Doctrine are misguided. Unlike so many other judicial atrocities, the Supreme Court has never before — and will not now — nullify the Presentment Clause (or tolerate its nullification by Congress, the President or both). We saw that as recently as Clinton v. New York, 524 U.S. 417 (1998), in which the Court struck down the line-item veto.

I understand the Presentment Clause arguments, and have blogged about them, favorably, over the past week or so. Based on a strict reading of the text of the Constitution, I think that it’s probably correct that the House is required to actually vote on the Senate Health Care Reform bill. However, the Presentment Clause does not state the manner in which the vote must be taken by each chamber, and Article I Section 5 says the following:

Each House may determine the Rules of its Proceedings,

In United States v. Bellin 144 U.S. 1 (1892), the Supreme Court stated:

The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations, all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

If the House of Representatives passes a Rule stating that the Senate bill is deemed as having been passed by the House, that would seem to fall within the discretion of the House under Article I, Section 5. And, as Jack Balkin notes, it would be part of a method under which “deem and pass” could occur without violating the Presentment Clause:

[T]here is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

How that would not be in compliance with the Presentment Clause is beyond me.

Politically, “deem and pass” is a stupid idea because it smacks of dishonesty and, more importantly, there seems to be something wrong with using this method to pass such a major piece of legislation, even if the method itself is Constitutional.

Just because it’s politically stupid, though, doesn’t mean it’s unconstitutional.

Note: This post was developed from a series of posts I published on my personal blog earlier this week.

Update 2:39pm EDT: The Washington Post is reporting that the House leadership has decided not to use a “deem and pass” rule for tomorrow’s vote. To me, that means that they are confident they have the votes.

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  • me

    Maybe Congress should adjourn.

  • anon

    Sections 5 and 7 do not contradict each other. That would be absolutely absurd.

    If section 5 allowed Congress to nullify the requirements of section 7, then section 7 would not be the supreme law of the land but the house rules would be. ERROR.

    There would be no constitutional crises if the Supreme Court overturns and obviously dumb precedent that violates the obvious logical meaning of the law.

    Yeah the liberals will cry their eyes out, but remember these are the people that made the Roe decision. They deserve not one molecule of sympathy.

  • http://www.belowthebeltway.com Doug Mataconis

    You are completely missing the point.

    I did not say that Sections 5 and 7 contradict each other. Rather, that they compliment each other.

    Section 7 says that for a bill to become a law it must be voted on by each chamber of Congress. But, it does not prescribe the method in which that must happen.

    Instead, in Section 5 the Founders left to to each Chamber to decide on their internal procedures, including how they would vote on legislation.

    And I wouldn’t put any money on your prediction that SCOTUS will over turn this

  • http://thelibertypapers.org/ Brad Warbiany

    This prompted me to explain Deem & Pass to my very non-political wife. She had two reactions:

    “Well, that’s dumb.”

    And:

    “Can they do that?”

    Sadly, as you point out, my responses are pretty much “yes it is and yes they can.”

  • http://www.belowthebeltway.com Doug Mataconis

    Brad,

    Which is why I think it’s about the dumbest move I’ve ever seen a majority in the House ever make.

    It’s okay to do something like this on a low priority bill when nobody really cares about procedure, but if they thought the public wasn’t going to notice this they’re either naive or stupid.

    And your wife’s reaction is, I think, the reaction that most Americans have to it

  • Jeff Nelson

    If Balkin’s senario is followed, wouldn’t the Senate still have to vote on the reconcilliation language? And if they could not support it, wouldn’t there have to be a conference to reconcile both versions?

  • Old Vet

    Enrolled Bill:

    “A final copy of legislation passed by the United States House of Representatives and the Senate, which is then sent to the president for signature.”

    The Senate bill is not enrolled because the House never voted approval.

    “There is no authority in the presiding officers of the house of representatives and the senate to attest by their signatures, not in the president to approve, nor in the secretary of state to receive and cause to be published, as a legislative act, any bill not passed by congress.”

    Therefore if you follow Marshall Field, there can be no authority to declare ‘deemed’ to have passed authorizing the reconciliation bill because the underlying Senate bill is not enrolled. Otherwise any bill could be deemed into law simply by having the Congress leadership attest that it had passed legislative process.

    “It is said that, under any other view, it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution.”

  • http://www.belowthebeltway.com Doug Mataconis

    Yes, the Senate has to vote on the Reconciliation Bill. Nobody has ever said otherwise

  • http://www.belowthebeltway.com Doug Mataconis

    The Senate Bill will become an Enrolled Bill when it is passed by the House. Under House Rules that can occur by EITHER a direct vote or a self-executing rule.

  • Old Vet

    “It’s more insider and process-oriented than most people want to know,” Pelosi said in a roundtable discussion with bloggers Monday. “But I like it,” she said, “because people DON’T HAVE TO VOTE ON THE SENATE BILL.”

    Playing political games will not make the Senate bill enrolled. Pelosi’s public statement attests that. Voting on a rule is not the same as passing the original bill even if there is a counter resolution to be sent to the Senate. If Congress does not vote up or down on the bill as presented, the only self-execution that will occur starts in November if not before.

  • http://www.belowthebeltway.com Doug Mataconis

    I disagree, but it’s an academic debate now.

    The House leadership is dropping plans to use “deem and pass”

    http://www.washingtonpost.com/wp-dyn/content/article/2010/03/20/AR2010032001651.html?hpid=topnews

    Which means they have the votes to pass the bill

  • Old Vet

    It’s ok to disagree, otherwise there would be no debate. :)

    So the new plan is to set the rules, present a package of amendments and then vote on the original bill. I have no issue with that.

    What troubles me is this:

    “makes clear that the House intends to modify the Senate bill and not approve the Senate bill itself.”

    So they are saying that they intend to shoot down the Senate bill and present an alternative? Am I reading this right? Or are they going to pass the Senate bill as is with no guarantee the Senate will accept their follow on amendment? Why not go to the joint process, avoid all the intrigue, and come out with one bill everyone can support?

    Probably because the whole package of sausage is loaded with e coli and they don’t want anyone to know.

  • http://www.belowthebeltway.com Doug Mataconis

    As I understand it, there will be three votes tomorrow

    The first vote will be on what’s called the Manager’s Amendment, which is essentially the rules under which the House will take up the Senate Bill and Reconciliation Bill. This set time limits for debate and limits the ability of the opposition to attach amendments.

    The second vote will be on the Senate Bill, by itself. If it passes, it goes to the President.

    The third vote will be on the Reconciliation Bill, which will go to the Senate.

    Of course, this could all change by 1 tomorrow

  • Brian Haley

    Deem and Pass has been done because they could. We know it is something that has evolved but never intended by the Framers. It was convenient for the Dems. and done because they could not get it passed as our founders set it up so as to protect the people.

    I hope enough of people feel as violated I do. We should feel violated because we have been. Not only do I hope we can get this repealed on solid grounds, but there should be measures taken to prevent shenanigans from ever reocurring.

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