Deem and Pass: Pelosi Indicates That She May Pass Health Bill Under a Controversial Self-Executing Rule

It appears that House Speaker Nancy Pelosi is contemplating the use of a “deem and pass” tactic to secure passage of the health-care bill. The procedural tactic is designed to allow members to avoid accountability for their votes and would reflect a conclusion that, in an up or down vote, the bill for fail.

Instead of a direct vote, Pelosi just vote on popular fixes to the Senate bill and declare that the health care bill is deemed passed.

Pelosi was remarkably honest about the purpose of such a maneuver: “It’s more insider and process-oriented than most people want to know. But I like it, because people don’t have to vote on the Senate bill.”

That is precisely why it is more convenient than principled. While the Republicans are hardly credible in objecting after they engaged in similar tactics when in control, it is not the way that one of the most important pieces of legislation in decades should pass. The courts would likely uphold the tactic. This procedure has been used many dozens of times by the Republicans, including with major funding bills. The courts are highly deferential to Congress on its internal rules and Article I requires a vote of both houses, which Pelosi can claim is satisfied by the vote on the reconciliation language. However, it will only fuel criticism that the White House is seeking to avoid a direct vote — particularly in the Senate where it lacks the votes.

The tactic is called a “self-executing” rule that embodies a “two-for-one” procedure. The House agrees to pass one matter while saying that the other matter is deemed passed as well. It is routinely used for less important or non-controversial pieces of legislation.

While legal, I believe it is a mistake and bad precedent for Congress. If they use this tactic, they will give the GOP another rationale for seeking to repeal the bill if they regain control of Congress. More importantly, given the unpopularity of the bill in many parts of the Congress, this will reaffirm in the eyes of critics that the bill was passed by procedural trickery rather than democratic process. Members should vote on the record and the Speaker should not work to help members avoid accountability for their decisions. I do not like the GOP tactics or scare tactics on the bill any more than Pelosi but this is not the way to take the high ground in the debate. Instead, it validates the GOP tactics. Let’s have an honest debate and honest vote. If the GOP kills health care, we have an election around the corner to seek a public verdict on the matter.

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45 thoughts on “Deem and Pass: Pelosi Indicates That She May Pass Health Bill Under a Controversial Self-Executing Rule”

  1. Proffesor Turley, respectfully, you say this Deem and Pass is legal.

    I am told second hand that you sited a Supreme court case in support of it’s legality during a conversation on the Randi Rhodes show, with respect to an interview she did with John Dean.

    Would you be so kind as to cite these cases before the Supremes that legalized such a Pelican Brief?

    Thanks from a curious kite.

  2. “While the Republicans are hardly credible in objecting after they engaged in similar tactics when in control…”

    While the Republicans are hardly credible in objecting after they engaged in identical tactics when in control…


  3. To “Byron”:
    TENNCARE is not at all like the current Health Care Reform legislation.
    It was based on the EXPANDED MEDICAID guidelines that allowed
    states to expand their benefit structure as was authorized by
    Congress. Tennessee ran into and still has severe budget
    problems which has caused a curtailment of benefits.
    More information on TENNCARE:

  4. Awewome – lots of the worst ideas, all in one place:


    sailor 1, March 16, 2010 at 4:18 pm

    Health Care Plan Americans Can Live With!

    1. Deregulated Health insurers so that all of them can sell in any state. End the monopolies and increase competition.

    2. Turn Medicare and Medicaid over to private insurance companies to run for the poor and seniors. Private companies can fight fraud better than the government can. Medicare and Medicaid can become profitable.

    3. Get rid of the FDA and eliminate law suit protection of drug companies. Open up drug purchasing from other countries. This will force drug companies to provide safe and affordable drugs.

    4. Provide tax deductions for the poor that cannot afford insurance.

    5. No coverage for legal or illegal immigrants unless they pay for there own.

    6. Tort reform, make the loser pay the fees of the victor.

    7. Stop the practice of requiring insurance coverage we don’t need. The government mandates insurance coverage demanded by special interest groups that makes no sense for a lot of people.


    Let’s rip apart the worst of these:

    1. That would be fine, if the insurers all worked under the same set of FEDERAL laws. But, of course, that’s not what the insurers want. What they actually want is what the Credit Card companies have currently – you can be based in one state, and operate under the laws of that state, but sell your services in other states. Thus, you have lots of credit card companies operating out of states like North Dakota – where a small population and small state legislature is easier to buy. I’m a Chicagoan – I don’t want some easily bought morons in, say, Alabama determining what laws govern my health insurance, thanks.

    2. I wouldn’t be so sure about that fraud issue. We know pretty well how much fraud is caught by Medicare/Medicaid, because as government operations, they are required to release that information. Because private insurers are often publicly traded corporations, they have huge incentives to avoid publicizing how much fraud is taking place. Fundamentally, the big driver of fraud is fee-for-service, but that’s a bigger problem to solve both among public and private systems.

    3. A few not horrible there – but… “Get rid of the FDA”?!?!?! This is where you come across as goofy and appear ignorant of reality. What would replace the FDA in the regulation of the safety of medications? What is this “lawsuit protection of drug companies”? They get sued, and loose, all the time.

    4. Uh, poor people pay almost no income taxes now – what good would “tax deductions” do for them? Do you really not know that? Hey! You make $24k per year, your income tax would be $800, and private, for-profit health insurance for you and your kids would be $10k per year! Congratulations! Here’s your $700 back! Really!?!

    5. Uh, that’s exactly what’s in the current Healthcare Reform Plan. It’s great you agree. Let’s just hope you don’t catch a disease from an illegal immigrant who washes the dishes or cooks in your favorite restaurant, but can’t afford to go to a doctor. Yay! The free market at work!

    6. Uh, you realize that this would mean that when a big hospital brings out the big legal guns against the little guy, the little guy gets squashed. Looser-pays-legal-fees clearly benefits the deep-pocket big guys. Also, unfounded medical malpractice suits are only a tiny slice of national healthcare spending. I’m all for improving the system, but it’s not a meaningful part of the cost-control solution.

    7. Such as what? Be specific.

    Is is just me? Can’t we find an opponent of the current healthcare reform bill (coming from the right wing/tea party zone) who actually knows what the hell he/she is talking about? Debating people who don’t know what’s in the bill and/or are divorced from reality isn’t much fun. Have any of these people bothered at least skimming the actual bills?

  5. While I agree in general principle with Lincoln’s Ghost, et al. that this is an unseemly spectacle in the Congress, it is the height of conceit to think that this Congress and our Congresscritters are the worst ever, or even in the Top Ten.

    This is the same august institution that has seen such luminaries as Theodore Bilbo, John Rankin, Jesse Helms and Strom Thurmond serve; such events as the 1856 beating of Charles Sumner, and fabulous scandals such as Abscam or a hundred others.

    This doesn’t mean that Congress doesn’t need a good housecleaning, but don’t kid yourselves that this is a new phenomenon.

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