Possible flip of House to GOP in November, and justiciability of "deeming passed" procedure

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Thu Mar 18 12:43:14 PDT 2010

To follow up on the comment below, does anyone know whether the
Republicans are planning to demand the yeas and nays specifically on
passage of the Senate bill, which Art. I, sec. 5, cl. 3 seems to entitle
them to demand? 

Suppose the current Democratic House leadership refuses to allow such a
recorded vote. Suppose then that the Republicans win control of the
House in December. 

A failure at this time to allow such a recorded vote directly on the
bill might justify the new GOP House leadership in attempting to
withdraw the attestation that the bill passed as an erroneous
attestation. Might that create a justiciable interbranch dispute? 

Suppose the new GOP House leadership also takes the position that
spending supposedly authorized by the bill was not in fact authorized
and that the privileges of the House are being denied to it if money is
spent absent House authorization. Perhaps someone will know the details
of how the spending process would work under the bill (and in general)
and would have some insight on whether this claim would be justiciable.

Mark Scarberry

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, March 17, 2010 11:42 AM
To: Ilya Somin; Miguel Schor
Cc: CONLAWPROF at lists.ucla.edu; Jeffrey Segal
Subject: RE: RE: deeming

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

-----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:


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:


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

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