Deconstructing deem and pass: a constitutional analysis of the enactment of bills by implication.

• Author: Krotoszynski, Ronald J., Jr.
• Position: V. A Neo-Formalist Critique of the Deem and Pass Procedure through VII. Conclusion, with footnotes, p. 1103-1132

5. A NEO-FORMALIST CRITIQUE OF THE DEEM AND PASS PROCEDURE

   It seems clear that neither the Constitution nor consistent historical practice imposes limits on the scope of a particular bill. Thus, a single bill could establish appropriations for every federal executive department, rewrite multiple criminal laws, and also reorganize the structure of the federal judiciary. Unlike most state constitutions, the federal Constitution lacks a "single subject" rule, closely related rules against unrelated "riders" within bills, and plain title requirements. (147) Single subject restrictions, bans on riders, and clear title rules came into vogue well into the nineteenth century, starting in 1818. (148) Thus, such provisions significantly post-date the Constitution of 1787.

   On the other hand, however, the Framers were quite familiar with classical constitutions, including those adopted in Rome and Greece. (149) The single subject rule relates back to Roman legislative practice in 98 BC, during the years of the Republic. (150) Thus, had the Framers wanted to limit the scope of federal bills to a single subject, to ban riders, or to require a clear title for all bills, they would have been quite familiar with these concepts, which all have ancient roots. (151)

   Even so, deem-and-pass plainly constitutes a form of "logrolling," a practice disfavored in the vast majority of state constitutions and that drew the ire of angry constituents going back to the time of the Roman Republic. (152) Most contemporary state constitutions contain a rule requiring that all bills encompass a single subject; many also prohibit riders or mandate the use of "clear titles" that accurately describe a bill's purpose and effect. (153) All of these devices are aimed to limit, if not entirely eradicate, the practice of joining together minorities to enact a bill consisting of proposals that, taken alone, could not command majority support. As Professor Millard Ruud explains, "[t]he primary and universally recognized purpose of the one-subject rule is to prevent logrolling in the enactment of laws--the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately." (154)

   In the absence of a single-subject rule, however, a single bill's substantive content is limited only by the procedural necessity of obtaining a majority vote from a quorum of the House of Representatives and the Senate. (155) Moreover, the enactment of "Comprehensive Omnibus" bills, such as continuing resolutions that fund the operations of the entire federal government, has been commonplace since the 1980s. Clearly, then, a single floor vote can have an infinite number of substantive effects, at least if the provisions that will produce these effects are bundled together in a single bill or resolution. Again, the practice in the states is arguably to the contrary. (156)

   Moreover, there are no constitutional or historical limits on the amendment of a pending bill. A closed rule in the House of Representatives might disallow offering and voting on particular amendments, but the closed rule must be adopted by the House itself prior to consideration of the bill. (157) Thus, if amendments are limited or prohibited with respect to a particular bill, this is so not because the Constitution itself limits the amendment process, but because the House elected to impose such a restraint on itself with respect to its consideration of a particular legislative measure. Accordingly, then, there can be no serious objection to the House considering an omnibus bill or linking a group of bills together via the amendment process.

   However, the deem-and-pass procedure neither combines measures into a single bill, nor does it require a vote to amend a particular bill to incorporate another measure. Instead, it gives ancillary and independent legislative effects to a single vote on a particular bill. Deem-and-pass splits and multiplies the legal effect of a single floor vote with respect to independent pieces of legislation. Moreover, it does so to render the legislative process opaque and undermine transparency in an effort to confuse--or even deceive--voters. (158) So, the fact that the House can consider an omnibus bill or amend a pending measure to incorporate wholly unrelated legislation does not really tell us anything useful about whether a single vote can pass multiple independent bills.

   A functionalist argument exists that could be made in favor of deem-and-pass special rules, and it derives from the fact that no substantive limits exist on the scope of a particular bill or amendments to a pending bill. If the House can link unrelated statutory language together via an omnibus bill or the amendment process on the floor, why can't the House achieve the same legal effect by using a deem-and-pass rule? In other words, if the House, by a majority vote, could incorporate an unrelated bill into a piece of legislation pending on the floor, what is the harm in permitting the House to achieve the same result by adopting a rule that says "the enactment of bill A will imply the passage of bill B"? The practical effect of this rule is simply to incorporate the entire substance of bill B into the text of bill A; the only difference is that, strictly speaking, bill A and bill B remain separate pieces of legislation for all other purposes. From a functionalist perspective, perhaps this is a distinction without a difference.

   From a formalist perspective, however, a significant difference exists between amending a bill to incorporate all of the material provisions of another piece of legislation and using a deem-and-pass special rule. Because deem-and-pass retains the separate legislative identities of both bills, rather than actually merging them into a single text, both bills must be enacted by the Senate and also presented to the President. Thus, if the House voted to amend bill A by incorporating all of the content of bill B, the combined bill would go to the Senate and, if passed in that chamber, to the President. (159) Both the Senate and the President would be required to consider and to act on bill A/B, rather than separately on bill A and bill B. If the Senate wished to divide the bill, by amending bill A/B to extract the content of bill B, then the amended bill would have to be returned to the House and repassed as amended.

   So too, if the Senate decided to pass bill A/B, it would go directly to the President for his consideration. The President would not have the option of signing only the provisions of the bill that derived from bill A, but would have to sign bill A/B or veto all of its provisions. (160) Had the House and Senate each voted on a separate bill A and bill B, however, the President would be able to sign only one of the two bills and to veto the other.

   When the House enacts separate bills the subsequent legislative process will require the assent of the Senate and the President on two separate pieces of legislation, rather than only on one. This, in turn, means that the Senate and President must go on record as supporting or opposing A and B, rather than both propositions at once. The House, by way of contrast, if it has used a deem-and-pass procedure under a special rule, may have taken a single vote to approve the content of both bills at the same time. Thus, although the House will have approved the content of a Senate approved bill, the Senate and House will actually have taken very different votes.

   And, it is precisely at this point that the sledding gets particularly rough. Does the Constitution permit the House to vote on a set of propositions that differs from the separate votes taken by the Senate? Should it matter that the Senate and President must take political responsibility for two independent sets of propositions, rather than the material equivalent of a combined bill? Or that the House did not vote on the same precise question as the Senate? Contra Professor Balkin, (161) I think that it should make a difference, at least when the deem-and-pass procedure is used to adopt a bill already enacted by the Senate.

   When the House uses a deem-and-pass special rule to deem adopted a bill already passed in the Senate, it essentially is voting to adopt an amended version of the bill that the Senate did not enact. (162) Even so, only the House-initiated bill goes to the Senate for the Senate's consideration. The Senate bill goes to the President for his consideration. Thus, the Senate is effectively forced to vote separately for A and B. So too, the President must decide to sign A without even knowing whether B will advance from the Senate to his desk. (163) Thus, the use of the deem-and-pass procedure, at least with respect to a bill that has already passed the Senate, has the effect of permitting the House to vote simultaneously on a package of statutory effects, whereas the Senate and the President are forced to consider these measures separately.

   One could take the view that nothing in the Constitution's text absolutely requires that the Senate and President ask and answer the same questions as the House when deciding whether to approve or reject a specific piece of legislation. (164) As Professor Linda Jellum notes, "[t]he functionalist approach emphasizes the need to maintain pragmatic flexibility to respond to modern government." (165) Functionalists, as Professors Elizabeth Magill and Thomas Merrill observe, tend to "resolve structural disputes 'not in terms of fixed rules but rather in light of an evolving standard designed to advance the ultimate purposes of a system of separation of powers.'" (166) Open-ended balancing tests, cost/benefit analysis, and a focus on the potential utility of novel administrative structures and procedures...