Does Marshall Field v. Clark Preclude a Challenge to “Deem and Pass”?

Is a constitutional challenge to the use of “deem and pass” to enact health care reform precluded by the Supreme Court’s 1892 decision in Marshall Field & Co. v. Clark?  In that decision, the Supreme Court held that federal courts must accept the certification of the presiding officers of the House and Senate that a bill passed both houses as “conclusive evidence.”  In short, once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement.  The judiciary, the Court appeared to hold, should not delve into the internal proceedings of the legislative chambers to the validity of their claims.

This holding would seem to indicate that federal courts could not evaluate the constitutionality of “deem and pass.”  But is that so?  Professor Michael McConnell points me to United States v. Munoz-Flores (1990), specifically footnote 4, which reads:

Justice SCALIA apparently would revisit Powell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Field v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence” the Court would consider in determining whether a bill had actually passed Congress. Id. at 670. Appellants had argued that the constitutional clause providing that “each house shall keep a journal of its proceedings” implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. 1, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id. at 143 U. S. 670-671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments” demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id. at 143 U. S. 672. Where, as here, a constitutional provision is implicated, Field does not apply.

This language would seem to provide a basis for distinguishing Field v. Clark on the grounds that “deem and pass” violates specific provisions of Article I, section 7 requiring that legislation pass both Houses of Congress, and Article I, Section 5’s requirement that the vote on each piece of legislation be recorded.

Does this offer hope to those who wish to challenge passage of the health care bill via the “Slaughter Solution”?  It might, but the D.C. Circuit was not persuaded when Public Citizen filed a challenge to the passage of legislation on the grounds that the text of a bill certified by both Houses was not, in fact, the text that each had passed.  A unanimous panel of that court dismissed Public Citizen’s appeal to “the concluding sentence of an oblique footnote” to overturn or cabin the Field holding.  The court went on:

Public Citizen’s attempt to square the Munoz-Flores footnote with Court precedent fails. In assessing appellant’s claim, it is important to recall that Munoz-Flores did not in any way involve the question raised in Marshall Field, i.e., whether an authenticated enrolled bill had passed Congress. The question instead was whether a provision that unquestionably had passed Congress constituted a bill for raising revenue. It is not plausible to think that the Court meant to overrule the enrolled bill rule in the last two sentences of an obscure footnote in a case that did not involve an application of the rule. Under Public Citizen’s interpretation, the Munoz-Flores Court overruled the time-tested Marshall Field decision sub silento in a footnote, and then three years later inadvertently referenced the purportedly defunct rule in U.S. National Bank of Oregon. See 508 U.S. at 455 n.7. The argument collapses under its own weight.

The last two sentences of the cited footnote in Munoz-Flores defy easy comprehension. Nonetheless, the text of the footnote is clear on one point: the Court did not mean to overturn or modify the enrolled bill rule of Marshall Field. The Court’s footnote in Munoz-Flores clearly states that “[t]he respect due to coequal and independent departments demands that the courts accept as passed all bills authenticated in the manner provided by Congress.” 495 U.S. at 392 n.4 (internal quotation marks omitted). The Court then says: “Where . . . a constitutional provision is implicated, Field does not apply.” Id. In other words, Marshall Field does apply in a case of the sort at hand, where the court must “accept as passed [the bill]
authenticated in the manner provided by Congress.” Id. There is nothing in the footnote to indicate that the Court meant to distinguish between challenges arising under the Journal Clause as opposed to challenges arising under the Origination Clause and Bicameralism Clause, as Public Citizen suggests. Indeed, the footnote appears unambiguous in reaffirming that there can be no Bicameralism Clause challenge when a bill has been authenticated in the manner provided by Congress. The text of the footnote may be less than carefully crafted, but it does not admit of the strained construction offered by appellant.

On this basis I am fairly confident that a challenge to “deem and pass” would face rough sledding before the D.C. Circuit, but the Supreme Court could be another matter.

One final point.  Members of Congress take an oath to uphold the Constitution and thus have an independent obligation to assure themselves that they are acting constitutionally.  Just because a court may find a specific constitutional challenge non-justiciable does not mean that the underlying conduct was constitutional.  So even if Field v. Clark would foreclose a constitutional challenge, members of the House should think long and hard about the constitutionality of the steps they take to enact desired legislation.  Whether they will, is another matter entirely.