Via Instapundit, Jonathan Adler has an interesting post addressing the legal aspects of “deem and pass,” the unconstitutional sleight of hand whereby the House of Representatives would claim it voted on the health care bill when it really didn’t. Stripped to its essence, Adler’s take is that the technique is unconstitutional — but that the courts may be unwilling to say so.
As Adler notes, scholars such as Michael McConnell and Jack Balkin agree that the technique is unconstitutional if it is used in such a way as to remove the House’s political responsibility for the bill. That is of course precisely what they intend; Nancy Pelosi admitted this when she said: “I like it, because people don’t have to vote on the Senate bill.”
But, Adler adds:
But even if “deem and pass” is unconstitutional, that does not mean federal courts would so rule. Another set of court precedents suggests that the question whether a bill in fact passed either House in accordance with that House’s rules is not justiciable. As I noted in this post concerning legal challenges to the Deficit Control Act of 2005, the 1892 decision of Marshall Field & Co. v. Clark would seem to foreclose such a challenge. In that case, the Supreme Court held 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.’” Pursuant to this decision, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected a constitutional challenge to the 2005 Deficit Reduction Act. (A challenge, interestingly enough supported by Reps. Pelosi and Slaughter, among others, and opposed by the Bush Administration.) This decision, and the Field v. Clark precedent would seem to create a problem for those who would like to challenge the constitutionality of any health care bill enacted through resort to the “Slaughter Solution.” Of course, just because Congress could get away with it, does not mean it’s constitutional.
The D.C. Circuit Court of Appeals decision referred to by Adler had to do with a typo, described in the opinion as a “clerk’s error with respect to one term.” This is different from taking the presiding officer’s word that the bill was voted on, when the world can see that it was not. I understand the principle discussed in the case is rooted in the idea of judicial deference to the legislature. But that principle is rather comical in a world where courts routinely question the legislature’s motives in passing bills — certainly a much tougher undertaking than simply looking at two bills to see if they are the same.
In any event, as Adler notes, just because a court may be unwilling to undo a clear constitutional violation doesn’t mean we should not be outraged by it. Members of Congress take an oath to uphold the Constititution, not just to do whatever the courts will let them get away with. If “deem and pass” is used, it should be opposed on every front, and not just in the courts.