Vikram David Amar

A Bill's Text, Its Whole Text and Nothing But Its Text? The Flap Over "Deem and Pass" in the Health Care Debate, and a Look at How a Bill Becomes a Law

By VIKRAM DAVID AMAR

Friday, March 26, 2010

Much to my chagrin, it turns out the Schoolhouse Rock "I'm Just a Bill" cartoon and ditty from 1975 doesn't fully capture the complexity of the federal lawmaking process. In this column, I analyze contentions that the so-called "Deem and Pass" procedure (also named the "Slaughter Solution" after Rep. Louise Slaughter (D. N.Y)) violates the Constitution's procedures for making law. As readers will likely know, the House of Representatives considered using “Deem and Pass” in last Sunday's health care vote, but did not end up invoking the device.

Before delving into the constitutional questions raised by "Deem and Pass," it is worth noting (or at least hoping) that we can analyze these questions in a less politically charged setting now that the House decided not to pursue the option.

Various conservative commentators, perhaps most prominently Michael McConnell ( a former federal appellate judge and current Stanford Law Professor) published challenges to the House's proposed procedure in publications such as the Wall Street Journal. While I have tremendous respect for Professor McConnell (and supported his judicial nomination in a column for this site), I must admit that I found his constitutional attacks in the WSJ to be somewhat underexplained (even given the space constraints of the venue), and worried that his (and other) criticism would be understood as partisan volleys in the final days of the health care legislation battle.

But now that the question is politically moot (even though it may become ripe again later), perhaps we can all see more clearly where we agree and disagree with respect to the constitutionally prescribed mechanics of the lawmaking process.

What "Deem and Pass" Would Have Involved, and Why It Was Looked At as an Option

Under Representative Slaughter's proposal, House members would have voted on the so-called “reconciliation package” that included desired changes to the health care bill that was passed by the Senate last Christmas Eve. In addition, by passing that amendatory bill, the House would also be "deeming" the Senate's Christmas Eve version (the "Christmas Eve bill") to have passed the House at the same time.

In other words, the House would in effect be passing two bills -- the Christmas Eve bill and the reconciliation package that the House thinks is preferable to the Christmas Eve bill -- by means of a single vote on the floor of the House. This "two bills for one vote" approach would have been accomplished under a "self-executing" House procedural rule that would make the legal consequence of a positive vote on the reconciliation package the approval of the Christmas Eve bill as well.

Why might the House consider engaging in these legislative gyrations? Because some House members would have preferred to vote on the reconciliation package (which many voters may think is less odious than the Christmas Eve bill) alongside the Christmas Eve bill, rather than vote separately on the Christmas Eve bill. That way, if ever challenged as to why they assented to the (presumably unpopular) Christmas Eve bill, these House members could argue that they were really supporting the (presumably more popular) reconciliation package to which the Christmas Eve bill was tied.

Why did the House not simply pass the (more popular) reconciliation package alone and send only that to the Senate for its approval (which is going on this week)? Because under Senate rules, the reconciliation device (which avoids the filibuster and thus needs only 51 votes) can be invoked only after the House and Senate have already passed a bill that is then subject to the post-enactment reconciliation tweaking process. That is why the House had to, as a formal matter, pass the Christmas Eve bill before the Senate could take the ball and run with it.

Was the House's "deeming" device intended to provide political cover and to complicate voters’ attempts to criticize House members for voting in favor of the Christmas Eve bill? Certainly.

Was the device a bit sleazy and not in keeping with the highest ideals of democracy? Quite likely.

But was the device technically in violation of the discretion the Constitution affords each house of Congress to make and apply its own voting rules to process legislation? I remain unconvinced of that.

Is the Word "Deem" Constitutionally Problematic?

Professor McConnell argued that the problem with the proposed procedure is that, if it were used, the House would have "adopt[ed] a 'self-executing' rule that 'deems' passage of the amendatory bill [the reconciliation package] as enactment of the Senate bill [the Christmas Eve bill], without an actual vote on the latter. (emphasis added)"

Phrased like this without more elaboration, Professor McConnell's contention is to my mind quite misleading and, indeed, wrong. The House would not be deeming the Christmas Eve bill to be passed "without an actual vote on" this bill; the passage of the reconciliation package would itself be the "actual vote" on the Christmas Eve bill.

There are a number of related possible constitutional objections that might underlie Professor McConnell's instinct. First is the idea that a vote to "deem" cannot be a vote to pass something. But that idea must be wrong. The Constitution does not require that either house of Congress use any particular "Simon Says" language to indicate that it is passing a measure.

Indeed, Professor McConnell himself, in his op-eds, uses the term "approve" interchangeably with "pass," even though Article I of the Constitution at its key points refers most of the time to Congressional "pass[age]" or "repass[age]" of a bill. "Approve" is a term that is used more often in Article I to refer to the Presidential decision whether to sign or to veto a passed bill.

I'm not suggesting Professor McConnell is wrong to equate "approve" with "pass"; both are words that the Constitution uses and both are words that clearly describe the key concept – assent by each house to bill. What I am saying is that the particular word that each house invokes to accomplish its enactment does not matter. Whether Congress declares that a majority of "Yea" votes on a measure will mean particular legislation "passes," "is approved," "is enacted," "is affirmed," or is "deemed passed" is of no moment. Instead, what counts is that House members know, when they vote, that a majority of "Yeas" will mean that the House has passed the bill in question for purposes of Article I of the Constitution.

(In the same vein, it does not matter which word a President uses when he sends a bill back to Congress without his signature -- he can "disapprove," or "reject," or "object to" or "veto" the bill and the effect will be the same; he will have clearly indicated his decision that the bill will have to be passed again, by two-thirds of each house, before it can become law.)

To be sure, if the House passes a bill using a procedure that makes it unduly difficult for citizens to figure out which House members voted in favor of passage and which ones voted against, that kind of obfuscation might violate the principles of democracy that undergird the Constitution's requirement that the House pass all bills before they become laws. But no one really could contend that the "Deem and Pass" device would have prevented citizens from finding out which House members voted "Yea" on the Christmas Eve bill; it merely would have given House members who did vote "Yea" a (weak) story to tell when they are called on to explain their vote to unhappy constituents.

A Second Objection: Does Resolving Two Bills in a Single Vote Deviate From the "Same Text" Requirement?

A second objection behind Professor McConnell's criticism is thornier. He argues that because, under "Deem and Pass," the House would have voted on two measures -- the reconciliation package and the Christmas Eve bill -- at once, after the House's action the House and Senate would not have adopted the "same" text of the health care bill, and so there would have been no bill passed for the President's signature.

As Professor McConnell writes: "Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. . . . The Supreme Court wrote in Clinton v. City of New York (1998) [that] a bill containing the 'exact text' must be approved by one house [and then] the other house must approve 'precisely the same text.'"

No one denies that the version of a bill that the House passes must be the same as the version of the bill that the Senate passes, before the bill goes to the President for his signature. If part of the Senate version were missing from the House version, or if the House and Senate versions were to differ in any other respect, then a new version would have to be negotiated and passed by both the House and the Senate before the bill could become law.

I think it's also true that each house must vote on the entirety of a bill -- the bill's "whole" text -- before the bill can be considered to have passed that chamber. Consider, for instance, what might happen if the House announced that it was going to take a series of votes on specific statutory provisions and that, at the end of the series of votes, the bill that emerged would consist of whichever provisions received majority support. At the end of that voting process, I do not think the cluster of provisions that were individually approved could constitutionally be bundled and sent to the Senate as a single bill for its overall approval. When each House member votes on a bill, she must be able to know at the moment of her vote what is in the whole bill, and what is not.

But in the context of the health care legislation last weekend, the House, even under Deem and Pass, would have approved "precisely the same text" of the Christmas Eve bill that the Senate passed on December 24. The versions do not differ at all. The only thing that would have been different is that the House, unlike the Senate, would have approved a second bill -- the reconciliation package -- at the same moment it approved the Christmas Eve bill.

The Core Question Behind the “Deem and Pass” Controversy: Can One House of Congress Adopt Two Separate Bills Via a Single Vote When The Other Has Not?

This, then, brings us to the nub of the matter: what limits are there on the ability of either house of Congress to adopt two bills by a single vote?

I'm not sure there are any. Article I, Section 7 requires each house to pass a measure before it becomes law, but does not by its terms say that a house cannot pass a measure at the same moment it transacts other business.

For example, imagine that the House combined a vote to pass the Christmas Eve bill not with a vote to pass the reconciliation bill, but rather with a vote to adopt a separate "sense of the House" resolution that health care is a particularly important issue and that the President has a moral duty to sign rather than veto whatever bill is sent to him. In that scenario, would anyone argue that inclusion of that resolution in the measure on which the House voted prevent the separate bill that passed from going to the President's desk? I rather doubt it.

Each house is given wide latitude in Article I to structure its voting procedures in various ways that serve the institutional needs of that house. That is why votes are sometimes taken by roll call (so that everyone can hear each member's vote) and other times by simply machine voting. That is also why the Senate, but not the House, has the filibuster and other super-majority devices.

In light of this discretion each house enjoys to fashion voting procedures, it's not clear, to me at least, why a house cannot combine passage of a bill with other legislative business, provided that, when the vote is taken, everyone knows that a majority of "Yea" votes on the measure will accomplish the enactment of more than one bill, and that a majority of "Nay" votes will result in the defeat of all of the bills at issue.

Possible Counterarguments: Electoral Accountability and House and Senate Policy Concurrence

I can imagine two possible counterarguments here, neither of which persuades me as of now. First is the notion that when a single vote is held to decide the fate of many bills, citizens have a harder time assessing the motives and wisdom of their representatives. But given how many (unrelated) issues are jammed into a single bill these days (indeed, the health care bill itself had within it major changes to unrelated student loan processing matters), it's hard to see why voting on more than one bill by a single vote frustrates accountability any more than do other current practices.

Again, so long as the consequences of a "Yea" or "Nay" vote on a combination of separate bills are clear to the voting members of the house taking the vote, and to the public monitoring the vote, the Constitution's goal of legislative accountability would seem to be respected.

The second counterargument focuses on the fact that only one house of Congress may be voting on multiple bills by a single vote. In the health care context, for example, the policy choice that confronted House members -- who would have been voting on the Christmas Eve bill and the reconciliation package at once -- might be said to be different than the policy choice confronting the Senators on Dec. 24, when they voted only on the Christmas Eve bill.

In other words, some House members may have voted for the Christmas Eve bill only because they liked the policy reflected in the reconciliation package, and because they thought passage of the Christmas Eve bill was the price they had to pay to possibly enact the preferable bill. In contrast, Senators who voted in favor of Christmas Eve bill last year presumably thought it was acceptable, or at least desirable as compared to doing nothing, even on its own terms.

To the extent that the "concurrence" requirement of Article I -- the requirement that each bill go through bicameral approval -- was designed to make sure a majority of House members and a separate majority of Senators both favor the policy embodied in a bill, that constitutional objective, the argument would run, is frustrated when the policy calculus faced by Senators on a measure is different than that faced by House members voting on the same measure.

I can understand this argument, and it may reflect a permissible reading of Article I's terms. But it is far from a required interpretation of the Constitution; Article I's words require only that both houses concur in the each "bill," not that both houses consider each bill using a voting agenda that matches that of the other house.

Perhaps more important than the Constitution’s ambiguous text here, this second counterargument doesn't quite square with the reality of legislation. Whether we always realize it or not, the policy calculus faced by one house is often, in fact, different from that faced by the other, even if both houses vote on the same bill without combining that bill with any other measures. The house that goes first often faces different considerations, since its approval will not by itself result in anything being sent to the President. (Ian Ayres has discussed a related idea in contract law – the notion that the offeror in some respects has less leverage than the person who might accept the offer.)

In the health care debate, for example, when the Senate passed its version on Christmas Eve (before the unexpected Massachusetts Senate election), many Senators may not have liked the Christmas Eve bill (even as compared to no action at all). Yet they might have voted for it anyway, simply because they knew the process might die if they didn't act, and because they never imagined that their handiwork would itself result in a signed bill; they probably assumed their action was the opening bid in an inevitable back-and-forth with the House to refine the policies and the statutory language that would ultimately become law. By contrast, when the House voted last Sunday, it knew its action would have much more momentous policy implications; its vote would result in changing one-sixth of the economy.

More generally, the fact that the Senate and House vote on a bill at different times (often many months apart) will mean that the policy calculus faced by each will frequently be different at the moment of their votes. For instance, the economic landscape, or other aspects of the world, might have changed during the interval between the votes of the two houses; the states might have adopted laws in the meantime that alter the implications of the proposed federal legislation; or the President or the courts may have weighed in with executive orders or judicial rulings that will affect the way the proposed federal law would play out if enacted.

For these reasons, I think reading Article I to require that the House and Senate pass the same text and the same whole text, but not necessarily nothing but that text, is probably the easiest position to defend.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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