deeming

Wed Mar 17 10:17:44 PDT 2010

No one will be confused as to which party is responsible for this bill if it passes.   One of the serious pathologies of our system of government is the ridiculously short time line members of Congress have before they need to start running for office.  Adding new constitutional hurdles to this structural problem will only worsen the problem of governability.  So if this bill passes given the control that the Democrats have over 2 of the 3 branches of government, what is so wrong with democracy that the third branch need derail it?  Miguel
________________________________________
From: Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Wednesday, March 17, 2010 12:41 PM
To: Miguel Schor
Cc: Paul Parker; Steven Jamar; CONLAWPROF at lists.ucla.edu; Jeffrey Segal
Subject: RE: deeming

Whether the lack of a clear interbranch dispute would affect the justiciability question is a fair point that some of us have been discussing off list. But a key feature of democracy is accountability to voters. Techniques used solely for the purpose of hiding decisions made by legislators so that they will not be held politically accountable cannot be defended adequately by saying "what's wrong with democracy?".

Mark Scarberry
Pepperdine

________________________________
From: Miguel Schor [mailto:mschor at suffolk.edu]
Sent: Wed 3/17/2010 9:00 AM
To: Scarberry, Mark
Cc: Paul Parker; Steven Jamar; CONLAWPROF at lists.ucla.edu; Jeffrey Segal
Subject: Re: deeming

Why should a dispute between the majority and minority party in Congress over the various procedural hurdles both parties have employed (see these articles from the NYT, http://www.nytimes.com/2010/03/17/us/politics/17mcconnell.html?ref=politics and http://www.nytimes.com/2010/03/17/health/policy/17health.html) be treated in the same fashion as an inter-branch dispute?  There are sufficient roadblocks to democratic governance in our constitutional system without fashioning new ones.  It is not clear to me that there is any constitutional or political pay-off in preventing the majority party from enacting its legislative program in this fashion.   What's so wrong with democracy?  Miguel

On Mar 17, 2010, at 11:35 AM, Scarberry, Mark wrote:

A clerk's error in transcription is not the same as an actual failure to have a vote on a bill. Putting aside the question whether the "deemed passed" procedure is or is not an actual vote on the bill:

Suppose a reprise of the hostile relations between the legislative and executive branches such as that between the Republican Congress and President Andrew Johnson. The President vetoes a bill. The presiding officers of the House and Senate attest that the veto was overridden even though in fact there were only simple majorities in each house in favor of the legislation. Nonjusticiable?

Or suppose a dual house simple majority veto of administrative actions is enacted under which a resolution passed by a simple majority in each house will be deemed to have been passed by a two thirds majority. Nonjusticiable despite Chadha?

Mark Scarberry
Pepperdine

________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> on behalf of Paul Parker
Sent: Wed 3/17/2010 6:38 AM
To: Steven Jamar
Cc: CONLAWPROF at lists.ucla.edu<mailto:CONLAWPROF at lists.ucla.edu>; Jeffrey Segal
Subject: Re: deeming

Case law supporting Steven Jamar's point, from  http://openjurist.org/486/f3d/1342/public-citizen-v-united-states-district-court-for-the-district-of-columbia

In 2007 the DC Circuit upheld dismissal of a suit by Public Citizen challenge to the 2005 Deficit Reduction Act  (the House and Senate versions funded durable medical equipment for different periods of time, explained as Clerk error).  The dismissal relied on Marshall Field v. Clark (1892):   '

In [Marshall Field], the 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." Marshall Field, 143 U.S. at 672-73, .... Under Marshall Field, a bill signed by the leaders of the House and Senate—an attested "enrolled bill"—establishes that Congress passed the text included therein "according to the forms of the Constitution," and it "should be deemed complete and unimpeachable." Id. at 672-73, .... Recognizing that Marshall Field's "enrolled bill rule" prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen's complaint and denied its motion for summary judgment. Public Citizen, 451 F.Supp.2d 109."

Steven Jamar wrote:
non-justiciable political question.

On Wed, Mar 17, 2010 at 5:46 AM, Jeffrey Segal <jeffrey.segal at stonybrook.edu<mailto:jeffrey.segal at stonybrook.edu>> wrote:
As House Democrats consider "deeming" that it passes the Senate health care bill while amending it in that same vote, is there any chance that such a process would withstand judicial review?

Sincerely,

Jeffrey Segal
Distinguished Professor and Chair
Department of Political Science
Stony Brook University
Stony Brook, NY 11794
phone 631-632-7662
fax 631-632-4116
jeffrey.segal at stonybrook.edu<mailto:jeffrey.segal at stonybrook.edu>
http://www.sunysb.edu/polsci/jsegal/
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

--
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.

________________________________

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

--
Paul Parker
professor of political science
Truman State University

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.