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.

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