As we await the vote (or non-vote) today, it is important to consider (reconsider) the constitutionality of deem and pass (D&P).  Even though the Congress determined not to use the procedural rule, the use of D&P has been used in the past, and may be used again.  The issue is still before us:  is it constitutional?  Both parties have used the procedure to pass certain pieces of legislation.  We cannot assume that just because the majority has elected not to use it in this instance that it will not be used again.

Law professor Michael McConnell wrote a follow up to his original piece in the WSJ.  He makes additional arguments and expands on his previous article.  He maintains that the use of D&P would have been unconstitutional if the majority would have utilized it to pass some form of health care.

I have had had quite a debate with law grads on this topic.  There are two questions:  the enrolled bill practices, and the role of SCOTUS to determine whether the practice is unconstitutional:  they would not unless the question is before them.  If the question is not before them, then they have no recourse to determine whether the practice is unconstitutional.  Wrapped up in that debate is the power of the Court.  Do they have the authority to do that?  If they did rule the practice unconstitutional, would that be a position in support of judicial supremacy?  My position is yes, and no respectively.  Disagreeing with me to an extent, one person wrote me:

There is a separate issue, which is this: what if a statutory interpretation question was before the court, and during the argument the court realizes that the statute might be unconstitutional. Should the court hold the statute unconstitutional even though the question wasn’t originally before it? I think yes, with the caveat that the best practice would probably be for the court to give the litigants (and probably the government as well) a chance to brief the issue. The authority to say what the law IS should not be taken lightly, and having the issue briefed is a check on bad or incomplete reasoning.

Another chimed in:

I agree…Unlike the French constitutional court, our courts (all of them, not just SCOTUS) exercise judicial review only “incidentally,” when passing on a constitutional issue is absolutely necessary to the legal dispute. The core responsibility to resolve the concrete dispute between litigants. This underlying authority is the only authority granted to the courts by the constitution.

It is also worth asking: if not the Enrolled Bill Doctrine, what evidentiary standard should courts use to determine whether a bill has passed? At some point, the courts simply must accept somebody’s word that a law was legitimately passed. Would it really be desirable to haul every Congressperson and Senator before a court to testify under oath to their vote? What if the law is challenged long after all those legislators are out of office, or dead? Now, perhaps the Enrolled Doctrine goes too far by crediting the affirmation of a single person. (I think it does.) But ultimately, some evidentiary rule is necessary, and the nature of evidentiary rules is that they will occasionally exclude relevant evidence.

Now, to a certain extent, we are talking past one another because, as legal minds, they are emphasizing different aspects of the problem (that is not a criticism). Mine is more fundamental.Now, my interlocutors may not characterize the debate that way; they may view their arguments as fundamental.  They are also troubled by the procedure as it would have been used by the majority in this case.  However, I insist that the theoretical role of republicanism is most important, not the specific legal question.

My argument begins with Federalist #78:

It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. [emphasis added]

So, SCOTUS is supposed to determine whether an act, or an action, is constitutional first and foremost. In every case the people (the rational expression of the people as codified in the Constitution) takes precedent.

Enter McConnell:

But that does not actually address the point at issue. No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in “the same form” as either bill separately.

Leaving aside commentary on Article 1, Sec. 7 (since we have already covered that earlier), McConnell brings up yet another reason–the president must sign a bill that has passed (exactly) both houses.  Under the rule/procedure, that would not be the case.  But, is there a way a self-executing rule may be constitutional?  Maybe:

Defenders of the Democratic strategy say that a self-executing rule has been used many times before by both parties. But never in this way. Most of the time a self-executing rule is used to incorporate amendments into a pending bill without actual votes on the amendments, where the bill is then subject to a final vote by the House and Senate. That usage may be a dodge around House rules, but it does not violate the Constitution. I am not aware of any instance where a self-executing rule has been used to send one bill to the president for signature and another to the Senate for consideration by means of a single vote.

Self-executing rules have also been used to increase the debt ceiling by virtue of adopting a budget resolution. That procedure is questionable, but because budget resolutions are not laws, this usage does not have the feature of using one vote to send a bill to the president and at the same time to send a different bill to the Senate. There may have been other questionable uses of self-executing rules, but not often enough or in prominent enough cases to establish a precedent that would overcome serious constitutional challenge.

So, the problem with the Slaughter Solution was to use the self-executing rule in an unprecedented way.  I maintain, it it likely unconstitutional no matter when and how it is used IF each house does not give its yeas and nays on the bill.  Nevertheless, McConnell again:

the question will be whether using a self-executing rule in this way is consistent with Article I, Section 7. It is one thing for the Supreme Court to defer to Congress on questions of what Congress did, and quite another to defer to Congress on the meaning of the Constitution. Indeed, in United States v. Ballin, decided the same year as Field, the Court ruled, “The Constitution empowers each House to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints . . . .”

Now, as it pertains to the health vote today, these questions have been avoided for the moment.  There will be Constitutional challenges on other grounds, mostly from the states on federalism grounds.  There is also the question of whether the Federal Government may force its citizens to engage in commerce, as this bill does.  There are also tenth amendment questions (those are the weakest arguments, but nothing says the 10th will forever remain a dead amendment).  The health care debate is far from finished.  Passage and a presidential signature today does not change that.