At the very least, it appears to be worth a shot. As mentioned, unlike the case in Marshall Field, an actual Constitutional provision–Art. I, Sec. 7–is implicated. As Jonathan Adler notes, the D.C. Circuit Court of Appeals may be willing to analogize any challenge to the one that was issued in Public Citizen, thus causing it to rule the same way that it did in Public Citizen. But since the Supreme Court may well think differently, and since there is ample cause for it to think differently, a Constitutional challenge to the use of the “deem and pass” rule should very much be found to be on the table.
Of course, if we could just have a straight up-or-down vote in the House on health care reform, perhaps we could avoid any litigation altogether. But that apparently is not going to be a luxury we can enjoy, now is it?