Up-Down vs. “Deem and Pass”: Start with the Text
Hon. Michael McConnell (writing here, here and here) is one of several constitutional law scholars (see also Jonathan Adler at Volokh) harboring serious doubt whether a purported passage of the Senate health care bill in the House would be constitutional if the House opts for the so-called “deem and pass” scheme. These are the times I get really jealous of law professors, who have the time to delve deeply into these kinds of issues. But after a quick look over the actual text of our Constitution, I’m reminded why we really don’t need a lot of deep thinking on a lot of the big questions. The answer really isn’t that hard.
Have a look for yourself. Article I, section 7 provides:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States . . . . But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.
Notice that, before a bill can become law, it has to pass both houses, and then be presented to the President. What this immediately tells me is that this “amendment” bill that the House plans to pass is not an amendment to any law. Instead, it is an amendment to the Senate’s bill. And that tells me that, if the House is “passing” the Senate bill with a bunch of provisos—that is, we are passing this Bill so long as we get this other stuff in there, too—then the House isn’t really “passing” the Senate Bill at all! In other words, it’s a “counter-offer” to the Senate Bill, not an “acceptance.”
Of course, we’d need to see the language of the forthcoming House “self-executing” rule that would purport to effectuate this. But just after reading the text, I can’t see how this procedure could possibly be constitutional. I’m with McConnell when he says:
There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.
There’s also an implicit affront to the constitutional guarantee that our legislators must sign on to all legislation by a “Yea” or “Nay” vote, and record their names into the voting rolls. The “deem and pass” rule is obviously being contemplated to allow these legislators to avoid accountability for their votes. The Constitution forbids this.
Rules Committee chair Louise Slaughter shoots back with the lame argument that the Constitution also allows the House to set its own rules. But the Supreme Court in 1892 held in United States v. Ballin that, despite the discretion over its own rule-making, the House “may not by its rules ignore constitutional restraints . . . .” So no, Ms. Slaughter, your committee’s rules are not self-legitimating.
Note: When the “deem and pass” rule is effected, the text should be available at the House Committee on Rules’ website here.