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

• Author: Krotoszynski, Ronald J., Jr.
• Position: I. Introduction through IV. The Framers, the Federal Convention, and the Passage of Bills, p. 1071-1103

ABSTRACT

Since 1933, the U.S. House of Representatives has maintained a procedure, the self-executing rule, that permits a single floor vote to pass multiple independent bills. Using this procedure, the House can pass a bill and, at the same time, "deem passed" entirely separate bills via a single floor vote. Some legal scholars have argued that this procedure is constitutionally unobjectionable, provided that members of the House clearly understand the legislative effects, whether singular or plural, of a particular vote. Others, however, have argued that the device violates the Constitution because the House and Senate do not vote on the same question. Careful consideration of the relevant constitutional text and legislative history reveals that the question does not have an easy or obvious answer. Perhaps surprisingly, the Constitution does not speak with clarity on whether a single floor vote may pass multiple, separate bills, nor does the Constitution's legislative history provide any clear guidance on this question. Instead, the answer depends on whether one generally embraces formalism or functionalism in one's separation of powers analysis. From a formalist perspective, the House and Senate must not only adopt the same identical text, but must also vote on the same question. From a functionalist perspective, however, the precise procedure used to approve the text should not matter so long as both the House and Senate take political responsibility for adopting a particular statutory text. Given the relatively weak reasons that undergird the House 's use of the deem-and-pass procedure--namely a desire to avoid political responsibility for unpopular legislation by rendering electoral accountability more difficult the formalist position has much to recommend it.

1. INTRODUCTION

   In March 2010, Rep. Louise Slaughter, then-chair of the Rules Committee of the House of Representatives, with the approval of then-Speaker Nancy Pelosi and the House Democratic party leadership, publicly floated the idea of using a special "self-executing" rule to permit the members of the House to use a single floor vote to adopt a bill that would simultaneously amend and pass the Senate-enacted health care reform bill. (1) Under the special rule, dubbed the "Slaughter Solution" by critics, (2) House approval of the separate House-originated amendments bill would also "deem" passed the Senate bill. (3) The vote on the amendments legislation would, therefore, advance the Senate bill to the President for his consideration and also send a new House bill containing amendments to the Senate bill to the Senate for its consideration. (4) If the Senate enacted the House amendments bill, that bill would also be presented to the President for his consideration; the fate of the House amendments bill, however, would be wholly independent of the fate of the Senate version of the healthcare reform legislation.

   Then-Majority Leader Steny H. Hoyer defended the proposed parliamentary maneuver arguing that the use of a special rule "deeming" the Senate bill enacted upon passage of the House amendatory bill "is consistent with the rules" and "is consistent with former practice." (5) President Barack Obama also demurred when asked about the legitimacy of using this procedure to enact comprehensive health care reform, saying "I don't spend a lot of time worrying about what the procedural rules are in the House or Senate" and suggesting that "[i]f people vote yes, whatever form that takes, that is going to be a vote for health-care reform." (6)

   A public outcry against this "deem-and-pass" procedure arose, (7) and the House leadership ultimately abandoned the plan, instead holding a separate floor vote on the Senate health reform bill and then a second, wholly independent vote on the House amendments legislation. (8) Upon passage in the House, the Senate health care reform bill advanced to the President and the separate amendments bill advanced to the Senate for its consideration. (9)

   During the contretemps over the possible use of deem-and-pass to enact the Senate bill without amendments, leading constitutional law scholars offered strikingly divergent opinions regarding the constitutionality of the procedure. Professor Michael McConnell argued that the deem-and-pass maneuver was patently unconstitutional; (10) whereas Professor Jack Balkin opined that the procedure was assuredly constitutional. (11) Other legal academics offered summary conclusions on the question in the press without providing any independent constitutional analysis. (12) Finally, some legal commentators seemed rather unclear on precisely what the procedure entailed, but nevertheless expressed skepticism about it. (13)

   Because the House leadership ultimately abjured the use of the special rule, the controversy has largely fallen away. Ultimately, President Obama signed both the original Senate bill (14) and House amendatory bill (15) into law, (16) and the Supreme Court subsequently sustained the law's individual mandate to purchase health insurance coverage, a central enforcement feature of the Patient Protection and Affordable Care Act. (17) Even so, the rules of the House of Representatives still permit use of the deem-and-pass procedure, and its constitutional status deserves more sustained analysis than it has received to date. Indeed, no carefully considered legal analysis of the procedure exists in scholarly literature, and only a handful of law review articles mention self-executing rules at all. (18) The rather fundamental question of what it means for a house of Congress to "pass" a bill demands more thorough attention and analysis.

   The answer to the constitutional question of whether a single floor vote may pass multiple, separate bills does not have an obvious answer. (19) The text of the Constitution does not clearly resolve this question. (20) Nor is recourse to the legislative history of the Constitution much help in answering what, at first blush, seems as if it should be an easy, indeed obvious, issue. (21)

   Ultimately, the constitutionality of a special rule using the deem-and-pass maneuver turns on extra-textual considerations that generally track the debate between formalist and functionalist theories about the separation of powers. (22) From a formalist perspective, deem-and-pass is objectionable because each house of Congress does not vote on the exact same question incident to consideration of an identical legislative vehicle. Instead, the House of Representatives votes on the Senate-passed bill, in addition to other legislative acts. These other acts could include bills originating in the House of Representatives, other Senate-passed bills, and conceivably even overrides of presidential vetoes. This arguably undermines the bicameralism requirement set forth in Article I, Section 7. (23) If, as Professor McConnell argues, Article I, Section 7 requires both houses to conduct votes on identical questions, the use of a self-executing rule that "deems" another bill enacted should be constitutionally impermissible. (24)

   From a functionalist perspective, on the other hand, a single vote could advance an infinite number of bills, so long as the bill serving as the legislative train's engine receives majority support, the members are clear on the precise effects of the vote, and a majority agrees by special rule to permit a single floor vote with multiple legislative effects. In other words, no serious constitutional objection exists provided that all the members are clear on the legislative outcome of a positive vote because each house has a constitutional mandate to establish its own internal operating procedures. (25)

   The use of deem-and-pass special rules obviously presents a serious and difficult question of constitutional law: May a single floor vote in either house of Congress have multiple legislative effects that advance entirely separate bills simultaneously? The Constitution plainly requires that both houses of Congress must "pass" a bill in order for it to become a law, (26) but does this bicameralism requirement, set forth in Article I, Section 7, encompass a duty on the part of both houses to take the exact same vote?

   In the end, and despite the importance and centrality of this question, the federal courts might well decline to reach the merits of a challenge to the deem-and-pass procedure--save perhaps in the case of a presidential veto override vote. (27) Even so, consideration of the constitutional status of the deem-and-pass procedure is important because it demonstrates that in matters of constitutional law we often know a great deal less than we think we know. Furthermore, both Congress and the President may someday need to consider not merely the political implications of the deem-and-pass procedure, but also its constitutional status, when deciding whether to embrace its use in the federal legislative process.

   This Article considers these questions in some detail over the next six parts. Part II examines the use of special rules, including the deem-and-pass special rule, in the House of Representatives. (28) Part III analyzes the Constitution's text with respect to the enactment of bills, the ratification of treaties, and the override of presidential vetoes. (29) Part IV undertakes a review of the legislative history of the Constitution in general, and Article I's provisions on the enactment of laws in particular, to determine whether the Framers expressed any clear intention regarding whether each house of Congress must take an identical vote, rather than simply adopt the same text via non-mirror image votes. (30) Part V offers an analysis and critique of the House's use of the deem-and-pass procedure from both formalist and functionalist perspectives. (31) Part VI considers whether the federal courts would be willing to reach the merits of a constitutional challenge to the House's use of deem-and-pass special rules to enact bills...