Tweet
Originally posted by Boris Godunov
View Post
The so-called “Slaughter solution” for enacting health care reform without a conventional House vote on an identically worded Senate bill would be vulnerable to credible constitutional challenge, experts say.
No lawyer interviewed by POLITICO thought the constitutionality of the “deem and pass” approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.
“If I were advising somebody," on whether deem and pass would run into constitutional trouble, "I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let's pretend.’ 'Deems' means it's not true.”
Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.
In the more recent of the two rulings, a 1998 decision striking down the line-item veto, the court specifically said that the bills approved by both houses must contain the “the same text.” Rep. Louise Slaughter (D-N.Y.), for whom the procedure under consideration by House Democrats is now named, and Speaker Nancy Pelosi (D-Calif.) filed amicus briefs arguing for the result the court reached in the line-item veto case.
In the case of health care reform, the “Slaughter solution” would employ a “deem and pass” or “self-executing” procedure whereby the House would craft a rule deeming the Senate bill enacted, without a direct vote, for which members could pay a steep political price.
The Senate bill and its text would not come before the House in the ordinary way for an up-or-down vote but would be passed indirectly. While this procedure has been used before, the Supreme Court has said in past cases that repetition of an unconstitutional process does not make it constitutional.
“You run the risk that it could be declared unconstitutional. ... If both houses vote on the substance of everything, then I'm not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi.
No lawyer interviewed by POLITICO thought the constitutionality of the “deem and pass” approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.
“If I were advising somebody," on whether deem and pass would run into constitutional trouble, "I would say to them, ‘Don’t do it,’” said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. “What does ‘deem’ mean? In class I always say it means ‘let's pretend.’ 'Deems' means it's not true.”
Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.
In the more recent of the two rulings, a 1998 decision striking down the line-item veto, the court specifically said that the bills approved by both houses must contain the “the same text.” Rep. Louise Slaughter (D-N.Y.), for whom the procedure under consideration by House Democrats is now named, and Speaker Nancy Pelosi (D-Calif.) filed amicus briefs arguing for the result the court reached in the line-item veto case.
In the case of health care reform, the “Slaughter solution” would employ a “deem and pass” or “self-executing” procedure whereby the House would craft a rule deeming the Senate bill enacted, without a direct vote, for which members could pay a steep political price.
The Senate bill and its text would not come before the House in the ordinary way for an up-or-down vote but would be passed indirectly. While this procedure has been used before, the Supreme Court has said in past cases that repetition of an unconstitutional process does not make it constitutional.
“You run the risk that it could be declared unconstitutional. ... If both houses vote on the substance of everything, then I'm not troubled. But if it looks like the House is never going to vote on the Senate bill, that’s very troubling. I wouldn’t want to stake the entire bill on that,” said Morrison, who authored the brief challenging the line-item veto signed by Slaughter and Pelosi.
){ :|:& };:
Comment