an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Can Deem and Pass be successfully challenged in court? No.
Arizona Senator Jon Kyl tells us that if health care reform passes, it will be challenged on the grounds that the use of a self-executing rule is unconstitutional.
Good luck with that.
On Monday I noted that deem and pass would be constitutional if the self-executing rule requires that the House accepts the same text as the Senate bill as its own act. If the rule states that the House agrees to pass the Senate bill, it does not matter if the House holds one vote or two. This is up to the House under its power to adopt its own rules under Article I, section 5.
Suppose the House uses deem and pass in the way I have suggested, and opponents of health care reform try to challenge the constitutionality of the health care reform act on the grounds that the Senate bill was not passed by both the House and Senate under Article I, section 7. They will get nowhere.
Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), holds that once a bill is signed by the Speaker of the House and the presiding officer of the Senate, and sent on to the President for his signature, courts will not inquire as to whether the enrolled bill has any differences from the individual versions passed by the House and Senate. As Justice Harlan explained:
The signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress. It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable. As the president has no authority to approve a bill not passed by congress, an enrolled act in the custody of the secretary of state, and having the official attestations of the speaker of the house of representatives, of the president of the senate, and of the president of the United States, carries on its face a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.
The Court acknowledged that the Speaker of the House and the President of the Senate might occasionally make a mistake or otherwise get things wrong, but if the rule were otherwise, every controversial measure would be perpetually challenged in the courts by opponents seeking to raise technical objections. In fact, even uncontroversial measures would be challenged by people seeking to void legislation that affected them adversely.
If opponents of health care reform want to find a basis to attack the constitutionality of health care reform, challenging the use of "deem and pass" is a pretty good way to get thrown out of court. Opponents would be able to get a hearing on the merits if they challenged the actual substance of the bill; however, as I have argued elsewhere, these challenges won't succeed either.