Would the Supreme Court Find Deem and Pass Constitutional?

After the strum and drang on the constitutionality of deem and pass, there seems to be less hyperventilation from the blogosphere on the constitutionality of deem and pass. For example Jack Balkin is now also citing Field v. Clark (see my earlier post here relying on Field v. Clark for the proposition that deem and pass is constitutional) for the proposition that the procedure would be effectively unreviewable.  In my view, the constitutional question is pretty much settled.  Left unexplored however is how the current Court might react to deem and pass.  This is a question that will pit the formalists versus the pragmatists.

Clinton v. City of New York, the line-item veto case, may be the best indicator and it is not clear.  This was 6-3 opinion written by Stevens and joined by Rehnquist, Kennedy, Souter, Thomas, and Ginsburg.  The Line-Time Veto Act gave the President the authority to cancel or undue certain budget provisions authorized by congressional statutes.  The question in the case was whether the President was engaging in lawmaking in violation of the bicameral and presentment requirements of the Constitution.  Recall that Article I section 7 clause 2 requires a bill to pass both houses and be presented to the President for his signature before it become law.  In Clinton v. City of New York, the majority concluded that the President exercised power under the Line-Item Veto to amend or repeal congressional statutes, in part, in violation of the bicameralism and presentment requirements.


Though Stevens wrote the opinion in Clinton, he is unpredictable on this issue.  Eight years earlier, in a case raising similar issues, U.S. v. Munoz-Flores, Stevens wrote:  

In my opinion, a bill that originated unconstitutionally may nevertheless become an enforceable law if passed by both Houses of Congress and signed by the President.

Stevens went on to write:

This case is not one involving the constitutionality of statutes alleged to effect prospective alterations in the constitutional distribution of power. No defect in the representative process threatens to impede a democratic solution to the problem at issue. No claim is made that this statute deals with subjects outside the sweep of congressional power, or that the statute abrogates the substantive and procedural guarantees of the Bill of Rights. Nor, finally, does respondent contend that the Constitution has been violated because action has been taken in derogation of structural bulwarks designed either to safeguard groups specially in need of judicial protection, or to tame the majoritarian tendencies of American politics more generally. Indeed, this case presents perhaps the weakest imaginable justification for judicial invalidation of a statute: Respondent contends that the judiciary must intervene in order to protect a power of the most majoritarian body in the Federal Government, even though that body has an absolute veto over any effort to usurp that power. The democratic structure of the Constitution ensures that the majority rarely if ever needs such help from the Judiciary.

Based on the above, I would put Stevens in the camp of those who would uphold the constitutionality of deem and pass notwithstanding the fact that he authored the majority opinion in Clinton.  I would also include Justice Scalia and Breyer in that camp.

Rehnquist and Souter are no longer on the Court.  I would put Kennedy and Thomas clearly on the formalist side and even put Ginsburg (who I would not otherwise classify as a formalist) based on the fact that she was in the Clinton majority. So that leaves Roberts, Alito, and Sotomayor.  Nothing that we have seen from Sotomayor indicates that she is a formalist. So, she goes in with Steven, Breyer, and Scalia.  With respect to Roberts and Alito, I do not have enough data to hazard a guess.  I would say that the Stevens, Breyer, Scalia, Sotomayor line-up is pretty solid to uphold deem and pass.  It would not surprise me if Ginsburg joined them.

Political Scientists are generally of the view that these types of issues are decided on the basis of ideology.  If that is true, then that means a 5-4 lineup with Scalia, Roberts, Thomas, Alito, and Kennedy voting as a bloc to strike down deem and pass. I don't think Scalia will join them as he was the one who wrote in Munoz-Flores:

Marshall Field v. Clark held that federal courts will not inquire into whether the enrolled bill was the bill actually passed by Congress . . . This salutary principle is also supported by the uncertainty and instability that would result if every person were “ ‘required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and the president of the senate, and approved by the governor, is a statute or not.’ ”

I think he, at the very least, has already revealed his preferences.  If I were a betting man, I'd say a majority of this Supreme Court would uphold Marshall Field v. Clark and deem and pass.