The Illogic And Injustice Of Deem And Pass

by Pejman Yousefzadeh on March 17, 2010


Law professor and former Tenth Circuit judge Michael McConnell puts the issue succinctly on Speaker Pelosi’s proposed “deem and pass” scheme. I don’t have a WSJ subscription, but fortunately, Michael Cannon does, and he has excerpted the pertinent analysis:

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.”

And because it is apparently necessary, Cannon helpfully refers us to this:

Really, it is embarrassing that Congress has been reduced to needing Schoolhouse Rock lessons.

Michael Franc, meanwhile, points out that there is a potential remedy available to House Republicans; the use of a privileged motion that would preempt debate on the health care reform bill, and be considered immediately by the House. One hopes that someone on Capitol Hill is listening.

I mean, the issue is clear-cut:

Representative Chris Van Hollen, Democrat of Maryland and assistant to the speaker, said Republicans were trying to deceive the public about the legislation that Democrats were working on.

“They want to send a signal to the American people that the product that is going to come out of the House is the Senate bill, but the fact of the matter is we are amending the Senate bill,” Mr. Van Hollen said. “We are going to get rid of the Nebraska deal. We are going to get rid of other provisions in the Senate bill that shouldn’t have been there.”

If the House gets to amend the Senate bill, then the Senate gets another crack at the bill. Art. I, Sec. 7 of the Constitution demands no less. If Democrats don’t want the Senate to get another crack at the bill, then they cannot amend it, and must pass the Senate bill word for word, comma for comma, period for period, colon for colon, and semicolon for semicolon.

This isn’t difficult to understand, of course. But policy preferences on the part of Congressional Democrats–and for that matter, on the part of the Obama Administration–have trumped Constitutional requirements. That’s pretty shocking, and not a little embarrassing, given our self-styled image as a nation of law, and our reverence for the Constitution as the supreme law of the land.

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