Tuesday, March 16, 2010

What Does "Pass" Mean? Is the House's Method for Passing Healthcare Reform Constitutional?

Ezra Klein outlines the House leadership's strategy for getting healthcare reform through the House (see also this story for the Washington Post) and Michael McConell, former federal court of appeals judge and current Stanford Law Professor, argues that it is unconstitutional.  One hates to disagree with Judge McConnell but I think under current law the procedure is constitutional.  Though I should hasten to add that Judge McConnell may be right if the question is whether this Supreme Court would find the procedure unconstitutional.

As most people know by now, the only way for Democrats to get the healthcare reform that they want is for the House to pass the Senate bill.  The problem, of course, is that the House does not like the Senate version.  So, they want to use the budget reconciliation process, which does not allow a filibuster, to launder or amend the heathcare bill.  Notwithstanding the availability of reconciliation to fix the bill, enough House Democrats are reluctant to vote on the Senate version because they find the Senate version too politically toxic.  So, one strategy is for the House to "deem" the Senate version "passed," without actually voting on it, when the House passes the reconciliation bill.  The question is whether this procedural move, deeming the senate version passed when the House passes the reconciliation bill, is constitutional.

The constitutional text that serves as the point of departure is Article 1 Section 7 which provides that "Every Bill which  shall have passed the House of Representatives and the Senate, shall, before it becomes a Law be Presented to the President of the United States. . . ."  By clear implication (if not outright textual command) a bill, the same bill must be passed in both houses (the bicameralism requirement) and presented (the presentment requirement) and signed by the President before it can become law.  Article I Section 7 tells us that both chambers must pass a bill before it can be presented and signed by the president (and then become law), but it does not tell us what it means to pass the bill.

Clause 1 of Section 5 provides that "a Majority of each [House] shall constitute a Quorum to do Business . . ."  But the text of the Constitution does not tell us whether the House of Representatives can use a parliamentary rule that essentially says, "by approving this bill, we also deem the other bill approved."  (Suppose for example that the House by voice vote approved two bills at once.  Would that be unconstitutional?)  Moreover, Article I Section 5, Clause 2 provides that "Each House may determine the Rules of its Proceedings . . ."  This clearly implies that each chamber can decide for itself the rules under which legislation "passes."  So, to the extent the text of the Constitution resolves the question, I think it does so on the side of the broader as opposed to narrower congressional action.

Lastly, the best case I have seen so far that is on point is Marshall Field v. Clark, 142 U.S. 649 (1892). Field presented directly the question of whether a law has been passed by both houses.  Writing for the majority, Justice Harlan explained:
The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress.
 Justice Harlan then went on to note:
The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.  It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself--nothing to the contrary appearing upon its face--that it passed congress.
Field has not been overruled.  Thus it is still good law. If the Court follows Field as precedent, then I don't think thee is a constitutional problem with the "deem as passed" method.  Will this Court follow Field?  That's a good question.

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