Saturday, March 20, 2010

Deem and Pass

As health care nears its final showdown, everyone's talking about "deem and pass," the procedural mechanism that the House may use to pass the Senate bill. Instead of voting directly on the Senate bill, the House would vote on a rule that provides that the Senate bill is "deemed" to be passed. Can they do that? Glad you asked.

1. As far as I can tell, deem and pass is constitutional. The Constitution permits each house to make its own rules of proceeding. This would be a procedural rule for passing a bill, and it would require a majority vote, so it seems OK to me. It's been used before many times.

And besides, the Senate is constantly doing things without voting on them directly. Some Senator seeks "unanimous consent" that something be deemed accomplished. This procedure is constantly used for confirmation of nominees, and it's used for bills too. Why, just this past Wednesday, Senator Durbin asked unanimous consent that the Congressional Award Program Reauthorization Act "be read a third time and passed," and the presiding officer simply said, "without objection, it is so ordered." There was no actual vote, but the bill was deemed passed. Happens all the time. If it's good enough for the Senate, it's good enough for the House.

2. Even if it's not constitutional, I don't think there would be judicial review of the problem. There's a little number called the "enrolled bill rule," which provides that if the President and Congress claim that a bill was enacted into law, the courts will not look behind that claim to see if the bill was really enacted. So even if "deem and pass" were invalid, I don't think anyone could do anything about it.

3. Having said that, why is the House doing this? As we lawyers like to say, it's not what a prudent lawyer would do. It would just give the courts an extra opportunity to strike down the whole health care reform bill on a silly procedural ground. And by the time the Supreme Court gets the case, it'll be two or three years from now, Congress will have changed, and who knows if the bill could ever get passed again. It's not a huge risk, but it is a risk.

4. And what is anyone getting in exchange? I've never claimed to understand politics, but I don't see what the advantage is in saying, "I didn't vote for the health care mandate, I only voted for a rule that deemed the mandate to be passed." Just vote for the bill, I say.

As far as I can tell, the advantage is that this way, a single vote passes the Senate bill and also gets the amendments the House wants past the House. That way, there can't be a screw-up in which the Senate bill passes but the amendments don't. (Of course the amendments still have to pass the Senate too -- that's the "reconciliation" part.)

So maybe that's why "deem and pass" is on the table, but I still think it would be better to just vote for the bill. I don't think the public understands why this strange procedure is needed, and it looks dodgy. "Deem and pass," apart from the (not very large) constitutional risk, is giving the Republicans the chance to make the Democrats look weasely. If the Dems want the health care bill, they should be proud of it and proud to vote for it.


Peter said...


Profiles in Cowardice!

Jon Siegel said...

In the end, they dumped deem and pass, so it's OK.