Would “Deem & Pass” Survive Judicial Review?

Politico reports that quite a few constitutional experts, in addition to Stanford’s Michael McConnell and Yale’s Jack Balkin, believe the so-called “Slaughter Solution” (aka “Deem and Pass”) could present a thorny constitutional question.  McConnell thinks it’s clearly unconstitutional; Balkin believes its constitutionality depends on its final form.  To McConnell and Balkin, Politico adds GW’s Alan Morrison and Public Citizen’s Alison Zieve:

“If I were advising somebody,” on whether deem and pass would run into constitutional trouble, “I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let’s pretend.’ ‘Deems’ means it’s not true.”. . .

“You run the risk that it could be declared unconstitutional. … If both houses vote on the substance of everything, then I’m not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi. . . .

Alison Zieve, director of litigation for Public Citizen, said, “I agree it doesn’t feel good. It seems inconsistent with the wording of the relevant constitutional provision. And then the question is whether the constitution gives them flexibility to adopt procedures to streamline or guide their business.”

Josh Gerstein’s Politco blog also notes that former Georgetown University law professor Marty Lederman has also been critical of prior efforts by House leaders to claim that the House and Senate passed the same statutory text when this had not, in fact, occurred.  Lederman is now a deputy in the Justice Department’s Office of Legal Counsel.   Based on Lederman’s analysis (see also here) it might be relevant if one could show the House leadership is acting in bad faith.

What’s the problem?  The text of Article I would seem to require a vote on the bill, and language in two Supreme Court opinions, INS v. Chadha and Clinton v. New York (the line-item veto case), would seem to interpret the bicameralism requirement in a fairly rigid and formalistic way.  This is the legal authority that gives even many  supporters of health care reform great pause.

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.