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

Thu Mar 18 21:53:23 PDT 2010

Greetings from Berlin, where I will be attending a conference on "the imperial presidency.". Ed has persuaded me (not for the first time) that I was being too flippant in my comparison.  What I do believe (perhaps because of my current venue) is that this is just one more example of the "Weimarization" of the Congress, which no longer functions as a deliberative body with any genuine sense of a shared enterprise.  Once again, I think that Carl Schmitt's book on thje crisis of parliamentary government is altogether relevant.  No doubt we would disagree on the etiology of this development, and I'm sure there are multiple sources and expanations.  But don't forget the thuggish Tom (the Hammer) Delayand the "extraordinary" way he rammed through the prescription drug biill by simply extending the time for the vote and engaging in none too subtle threats against his fellow Republicans who were resistant to the giveaway to big Pharma (and who correctly suspected that the Bush Administration was lying through its teeth about potential (unfinanced) costs).  These are dark times for the American notion of a "Republican Form of Government," which requires a minimum of good-faith cooperation in trying to figure out "the public good" instead of simply trying to destroy the elected President by depriving him of anything that might, God forbid, be seen as a genuine achievement.  As all of you know, I'm far more inclined to "blame" our decidedly dysfunctional Constitution than to look simply for individual villains.  Would our problems be so relatively simple.  But Delay's leaving has obviously changed nothing of significance.

Sandy

----- Original Message -----
From: Edward A Hartnett <Edward.Hartnett at shu.edu>
To: Sanford Levinson; 'Mark.Scarberry at pepperdine.edu' <Mark.Scarberry at pepperdine.edu>; 'isomin at gmu.edu' <isomin at gmu.edu>; 'mschor at suffolk.edu' <mschor at suffolk.edu>
Cc: 'CONLAWPROF at lists.ucla.edu' <CONLAWPROF at lists.ucla.edu>; 'jeffrey.segal at stonybrook.edu' <jeffrey.segal at stonybrook.edu>
Sent: Thu Mar 18 16:57:46 2010
Subject: RE: Possible flip of House to GOP in November,	and justiciability	of "deeming passed" procedure

Perhaps I am not following you, Sandy, but I think that the comparison to an omnibus bill is not right, and may be exactly wrong.

If we think of the "bill" that the House enacts as an omnibus bill, with (for example) substantive parts 1, 2, and 3 -- but with only parts 2 and 3 being the bill that the Senate has passed -- then the House has not passed the same bill as the Senate.  In the omnibus bill context, both houses have to pass all parts of the bill.  If one house passes parts 1 & 2, and the other passes 2 & 3, nothing can go to the President, even though both have passed 2.

The view that makes the "deeming" process permissible, it seems to me, is that the House is adopting a rule governing the process by which it will adopt a separate bill or bills.  A rule by itself would not be subject to bicameralism and presentment, and the "deeming" process treats the combined-rule-with-bill -- not as itself an omnibus bill subject to bicameralism and presentment -- but instead as (1) a rule (not subject to bicameralism and presentment) and (2) a separate bill (that is, by itself, subject to bicameralism and presentment).

Here what I understand to be the first use of the deeming process:

"(H. Res. 63) March 16, 1933     H.R. 2820 - To maintain the credit of the U.S. Government. 

Resolved, That immediately upon the adoption of this resolution the bill H.R. 2820, with Senate amendments thereto, be, and the same hereby is, taken from the Speaker's table to the end that all Senate amendments be, and the same are hereby, agreed to."

As I read it, the rule itself -- not subject to bicameralism and presentment -- is the vehicle for adopting a separate bill, HR 2820, with the Senate amendments -- which by itself is then subject to presentment.

Using the same example of a rule that includes substantive parts 1, 2, and 3, with parts 2 & 3 already approved by the Senate, I would think that the rule would treat 1 as a separate bill (to be sent to the Senate and, if approved, to the President, separately) and 2 & 3 together as a single bill (thereby approving what the Senate did and sending it on to the President).  

The "deeming" process, it seems to me, affords a way to create a line-item veto.  A giant budget bill can be formally broken into thousands of separate parts, with separate bill numbers, but rather than vote on each separate bill, a rule would "deem" each of those separate parts to be passed if the rule itself passes.  

I think that this is consistent with Jack Balkin's approach.  See http://balkin.blogspot.com/2010/03/is-deem-and-pass-constitutional.html

Or am I missing something?

Edward A. Hartnett
Richard J. Hughes Professor 
     for Constitutional and Public Law and Service
edward.hartnett at shu.edu
Phone: 973-642-8842
Fax:  973-642-8546
SSRN author page: http://ssrn.com/author=253335 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Thursday, March 18, 2010 5:03 PM
To: 'Mark.Scarberry at pepperdine.edu'; '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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