deeming
Scarberry, Mark
Mark.Scarberry at pepperdine.edu
Wed Mar 17 11:41:33 PDT 2010
If the deemed passage procedure does not allow for a fifth of those
present to demand a roll call vote ("the Yeas and Nays") on the question
of passage of the Senate bill then it is not a vote on the bill under
the constitutional requirements of Article I, sec. 5, cl. 3. Does the
procedure in fact preclude a demand for the yeas and nays on the
question of passage of the Senate bill?
Mark Scarberry
Pepperdine
-----Original Message-----
From: Ilya Somin [mailto:isomin at gmu.edu]
Sent: Wednesday, March 17, 2010 10:44 AM
To: Miguel Schor
Cc: Scarberry, Mark; CONLAWPROF at lists.ucla.edu; Jeffrey Segal
Subject: Re: RE: deeming
It's true that people will recognize that the Democratic Party as a
whole is the one that passed the bill. However, the whole point of the
"deeming" procedure is that there will be no roll call. As a result,
individual Democrats (especially those in vulnerable swing districts)
won't have to take responsibility for voting for it:
http://www.huffingtonpost.com/craig-crawford/the-deeming-debate-get-ov_b
_501920.html
To her credit, House Speaker Nancy Pelosi is honest about this, pointing
out that she supports the deeming procedure because "a lot of people who
don't want to vote for it [the underlying bill]":
Read more:
http://blog.thenewstribune.com/opinion/2010/03/16/missteps-toward-health
-care-reform/#ixzz0iSNUlUoz
http://blog.thenewstribune.com/opinion/2010/03/16/missteps-toward-health
-care-reform/
I don't think this settles debate the debate over whether deeming is
constitutional. But whether it is or not, it certainly does diminish
electoral accountability, at least at the margin.
Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339
----- Original Message -----
From: Miguel Schor <mschor at suffolk.edu>
Date: Wednesday, March 17, 2010 1:17 pm
Subject: RE: deeming
> 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
> SegalSubject: 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
> SegalSubject: 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=polit
ics 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/
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>
> --
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social
> Justice (IIPSJ) Inc.
>
> ________________________________
>
> _______________________________________________
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> --
> Paul Parker
> professor of political science
> Truman State University
>
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