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

Edward A Hartnett Edward.Hartnett at shu.edu
Thu Mar 18 18:16:48 PDT 2010


Mark, I agree, as my earlier response indicates, that Sandy's comparison to an omnibus bill doesn't work, because the whole point is that the bill (or bills) are treated separately, for purposes of bicameralism and presentment, from the rule which provides for their enactment.

But I don't see how you get to the conclusion that each bill must be a separate "question" for purposes of Art I, section 5 ("Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.")  Why isn't a "question" any matter that is put before either house for a vote?  

If 1/5 call for the yeas & nays on the proposed rule, they are entitled to it, just as they are on any other "question" that is put to the house.  But why don't the rules of the house, whether standing rules or rules adopted on an ad hoc basis, determine what "questions" are in order and before the house?  

Rule I, clause 6, provides: "The Speaker shall rise to put a question but may state it sitting. The Speaker shall put a question in this form: ''Those in favor (of the question), say 'Aye.' ''; and after the affirmative voice is expressed, ''Those opposed, say 'No.' ''. After a vote by voice under this clause, the Speaker may use such voting procedures as may be invoked under rule XX."

Rule XX, in turn, provides: "The House shall divide after the Speaker has put a question to a vote by voice as provided in clause 6 of rule I if
the Speaker is in doubt or division is demanded. Those in favor of the question shall first rise from their seats to be counted, and then those opposed. (b) If a Member, Delegate, or Resident Commissioner requests a recorded vote, and that request is supported by at least one-fifth of a quorum, the vote shall be taken by electronic device unless the Speaker invokes another procedure for recording votes provided in this rule. A recorded vote taken in the House under this paragraph shall be considered a vote by the yeas and nays."

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, March 18, 2010 6:37 PM
To: Sanford Levinson; isomin at gmu.edu; mschor at suffolk.edu
Cc: CONLAWPROF at lists.ucla.edu; jeffrey.segal at stonybrook.edu
Subject: RE: Possible flip of House to GOP in November, and justiciability of "deeming passed" procedure

In response to Sandy:

These must in fact be two bills, not one bill (the "some bill" to which
Sandy refers). The passage of the Senate bill makes that bill ready for
presentment to the President. The passage of proposed amendments to the
law that would be enacted should the President sign the Senate bill is a
separate bill that is not ready for presentment until passed by the
Senate. It seems to me that each constitutes a "question" on which the
Yeas and Nays can be demanded.

Mark Scarberry
Pepperdine 

P.S. Usually one is not told to get over something until it is,
factually, over. This one is not yet over. Members of Congress should
consider their constitutional obligations (whether or not the issue is
justiciable) while the process is still being debated.

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Thursday, March 18, 2010 2:03 PM
To: Scarberry, Mark; 'isomin at gmu.edu'; 'mschor at suffolk.edu'
Cc: 'CONLAWPROF at lists.ucla.edu'; 'jeffrey.segal at stonybrook.edu'
Subject: Re: Possible flip of House to GOP in November, and
justiciability of "deeming passed" procedure

So long as the yeas and nays are for SOME bill, I don't see what the
problem is.  Everyone will be on record with regard to the bill in
question.  It's like any other omnibus bill, which certainly need not be
broken into its constituent units (or else the President could veto one
of the "separate bills.". To quote Justice Scalia, Republicans "should
get oiver it."

Sandy

----- Original Message -----
From: conlawprof-bounces at lists.ucla.edu
<conlawprof-bounces at lists.ucla.edu>
To: Ilya Somin <isomin at gmu.edu>; Miguel Schor <mschor at suffolk.edu>
Cc: CONLAWPROF at lists.ucla.edu <CONLAWPROF at lists.ucla.edu>; Jeffrey Segal
<jeffrey.segal at stonybrook.edu>
Sent: Thu Mar 18 14:43:14 2010
Subject: Possible flip of House to GOP in November,	and
justiciability of "deeming passed" procedure

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
Pepperdine
 

-----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
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

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