Deem, Pass, and Sue: Lawsuits Prepared To Challenge Deem and Pass

Various conservative scholars and legislators are lining up to file suit if the health bill passes on a “self-executing” rule. As I stated earlier, I believe the tactic violates the principles of good government but not the Constitution. However, this could be an interesting challenge and could raise a couple of novel questions. I will be discussing this issue on tonight’s Countdown.

To get to the legal issues, one has to first strip away the deep layers of hypocrisy from both parties. First, the Democrats long condemned this tactic when used by the Republicans and the use of a self-executing rule in this case is a transparent effort to avoid accountability. Indeed, in a remarkably frank and self-defeating statement, Speaker Pelosi praised the tactic as a way for members to avoid voting directly on the unpopular Senate bill. It is not enough for Democrats to say that “there is no other way to get this done.” In our system it is often as important how you do something as what you do. This is the wrong way to pass this bill and Democrats should have the integrity to condemn the tactic with the same conviction as when it was used by the Republicans.

Second, the disgust expressed by the GOP is equally transparent and hypocritical. Republicans used this tactic over three dozen times when they were in control of the House. It did not seem to offend their sensibilities back then or beckon the arrival of tyranny. Moreover, while usually used for less important measures, it has been used on substantial legislation ranging from its first use in dealing with creditworthiness in the Depression to the line-item veto to the recent Family Medical Leave Act.

Putting aside the super-heated rhetoric, there is an interesting constitutional question. Article I, Section 7 states:

“ 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; if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. 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. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

The use of a self-executing rule has been used dozens of times, including 49 times in the last session. However, only a handful of final bills have passed by this approach — as opposed to resolutions or legislation at an early stage.

The fact that the deem and pass tactic has been used for decades does not mean that the Court could not declare it to be unconstitutional. Yet, Article I does not clearly define what constitutes the necessary vote by each house. The members will enter yeas and nays on the reforms and language adopting the Senate bill. The courts are highly deferential to Congress in setting its own internal rules and procedures. In 1892, the Court held in Marshall Field and Co. v. Clark that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.’” However, the Supreme Court also (in a later decision) stated that, while deferential, it still retains the authority to “to review the constitutionality of congressional enactments.”

The challenge, however, would first have to establish standing by picking litigants with a cognizable injury — a question that will be challenged by the Democrats.

This proved a problem in a challenge to the Deficit Reduction Act of 2005 when the Republicans brushed over a clear conflict between the House and Senate versions — the House allowing Medicare payments for 36 months and the Senate version allowing 13 months. Democrats challenged that it was not the same language as required under Article I, Section 7, but lost in court.

The GOP would ironically rely on a prior loss before the Court; the 1998 decision in Clinton v. New York striking down the Line Item Veto Act as unconstitutional. In 1983, INS v. Chadha, the Court struck down a law that permitted a single house of Congress to nullify certain regulatory decisions. In 1988, in Clinton v. City of New York, dealt with the variation on this theme with the delegation of power by Congress to the president. In both cases, the Court emphasized the need for procedural correctness in Congress. Justice John Paul Stevens wrote that each house has to approve the same text and the bill must receive a presidential signature.

The weight of these decisions favors the Democrats on the “deem and pass” tactic.

The Senate, however, could prove a serious problem. The GOP would need to find a single line in this lengthy bill that would call for a parliamentary ruling. The Senate bill would have to be identical to the House or risk being sent back to the House. If the Parliamentarian ruled for the GOP, the only way to avoid the meltdown would be for Vice President Joe Biden to overrule the Parliamentarian. That would be viewed as even more controversial and inimical to good order than the deem and pass tactic.

For the full story, click here.

45 thoughts on “Deem, Pass, and Sue: Lawsuits Prepared To Challenge Deem and Pass”

  1. The first Klan was founded in 1865 by a Tennessee veterans of the Confederate Army Nathan Bedford Forrest.

    And is one of the reasons Jacksonville, Florida will, IMHO, will always have a black cloud hanging, pun intended, over it.

    Nathan B Forest High School, Jacksonville, Florida.

    Jacksonville has long been known for it’s racist overtones. It has consistently been THE highest murder rate per population/county the last ten years. It has a deep religious community mainly Baptist. Back in the seventies Jacksonville city theme was “The Bold New City of the South” but was like the Wild Wild West and in some respects, still is. We just had two students take a female student to a city park and both took turns firing single shots to her head. Victim has not readily identifiable at the crime scene. Jacksonville sucks.

    There were calls for his name to be removed and calls for him to remain.

    Nathan Bedford Forest High School has been embroiled in a push by many to change the name of the Jacksonville Florida facility. The Duval County School Board held a three hour hearing last night and then voted 5-2 to keep the name of the early Ku Klux Klan leader, who was Grand Wizard, first era.

  2. That is a little scary! It is a little nuts that the KKK is still alive and well. You would think that the country would be past the discrimination, but if you read the tea baggers signs, you know that equality is a pipe dream.

  3. Sorry rafflaw,

    The first Klan was founded in 1865 by a Tennessee veterans of the Confederate Army Nathan Bedford Forrest.

    Catch this his Great Grandson went on the be none other than Nathan Bedford Forrest III (April 7, 1905 – June 13, 1943) a Brigadier General of the United States Army Air Forces.

  4. rafflaw,

    The First Klans group was sun off after the Civil War?

  5. Swarthmore Mom,
    I know Brady is ultra-conservative, but he is not very well known in Northern Illinois. As of now, I would think Quinn may win, but it may depend on who is chosen for the Lt. Gov. spot.

  6. rafflaw Are you ready for Gov. Brady? You will think you are in Texas if he wins and he is leading in the polls.

  7. I wonder if the Deem and Pass strategy was simply a ruse by the Dems to distract the Republicans?? That can’t be that smart, can they?

  8. Legal hermeneutics eh?

    The interpretation of Art. I, Sec. 7 if done as usual, should follow the rules of “statutory interpretation”.

    First there must be a determination as to whether or not the text is ambiguous.

    That is determined by resolving whether reasonable persons could interpret it differently (more than one reasonable interpretation possible).

    Another aspect close to that, is whether any reasonable interpretation would conclude wiht an absurd result.

    In other words, yes it could mean thus and such, but that would be absurd, so the only textual interpretation to pass both aspects is the textual interpretation that is advanced by a reasonable person and which does not end up with an absurd result.

    Art I. Sec. 7 refers to “Every bill which shall have passed the House of Representatives and the Senate” going to the president for signature or veto [This is not ambiguous because it is subject to only one reasonable interpretation].

    Next comes “if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated” which means there are two types of bills at this point: 1) those that become law by presidential approval; 2) those that do not (vetoed).

    Those that are vetoed are returned to see if the veto can be overcome with a 2/3 majority vote thereby to become law anyway, over the prior veto of the president.

    The controversial text is “But in all such cases …”, the interpretive controversy being does this apply only to vetoed bills, or does it apply to the “Every bill” text at the beginning of this Sec 7?

    The result of applying it only to vetoed bills that face a 2/3 majority vote is that very, very few bills would have the vote of Senators and House members recorded.

    That would seem to be an absurd result in a society claiming government should be open, and thus the voters should know how congress members vote on each and every bill so they may vote them out or return them depending on their votes.

    If the courts do not, however, think that is an absurd result, they could use the pari materia rule of interpretation, as well as looking at who said what about Sec 7 during the constitutional convention, and see where that leads.

  9. Professor Turley,

    If the Republicans prevail in their legal challenge of ‘deem and pass’, please answer this rhetorical question: would the ruling also invalidate previous laws passed by other congresses? Or would it only invalidate laws passed by *Democratic* congresses?

  10. Nice job on Countdown. Professor you need to be exposed to a wider audience. Unfortunately the TV ratings for Countdown, are no so good.

    Olberman should have stuck with sports and I think MSNBC realizes that now, O’Donnell has done a good job in place of Olberman and as they say in sports, he’s outta there.

    It was nice to see you mentioning the blog. The more you say, as I discuss on my blog, the more that will be coming. I’m sure you’ve noticed an uptick as of late.

    P.S. Keep smiling 🙂

  11. I am no constitutional lawyer, but I read that language as requirements for over-riding a presidential veto. I would see normal passage of a bill coming under Article 1, Section 5,

    “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”

    “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”

  12. All of this reminds me that tomorrow is the last day of the 2010 Sunshine Week–March 14 through March 20, 2010–recognizing the FOIA, State Public Records Acts/Laws, and Open Meeting laws.

    “Sunshine Week: Your Right to Know”

  13. If deem and pass were found to be unconstitutional, would that mean that anything that had been passed using that strategy in the past would have to immediately be voided or ruled invalid due to the way in which the law came into being?

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