Deem and Pass

I would like to raise a constitutional question about the proposed rule that the House of Representatives may use to pass health care reform.

Article I, Section 5, Clause 3 provides that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”  Suppose that the House passed a rule (by less than a 4/5 majority) stating that “the health care bill shall be passed by a voice vote.”  I think we can all agree that this would be unconstitutional, even though it would be useful because it would allow members to not go on the record as voting Yea or Nay.

How is deem and pass different from my hypothetical?  I guess the best answer is that there is a recorded vote on something–a vote on whether to deem a bill passed under certain conditions.  I wonder, though, whether that distinction can avoid the broad language of the Journal Clause (“any question shall”).  The whole point of deem and pass, after all, is to avoid taking an up-or-down vote on a question (the Senate version of health care reform).

Moreover, I would be interested to know whether the previous uses of this rule were on bills with less than a 4/5 vote for final passage or not.  The mere fact that deem and pass has been done before is not sufficient, it seems to me, to establish that the practice is lawful if more than 1/5 of the House objects.  Indeed, if the previous instances were all on noncontroversial matters, that would reinforce my argument.

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3 Responses

  1. AF says:

    I don’t see the constitutional issue. Are you saying that Article I, Section 5, Clause 3 requires something more than recording whatever votes are actually cast? That it somehow requires recording votes on the REAL “question” before the House, not just the actual bill or resolution that is brought to a vote? That seems pretty far-fetched.

  2. Gerard Magliocca says:

    Well, I’m not saying that a court would buy this argument. But what is the point of that provision? To ensure accountability. Is deem and pass doing that? You could say yes on the theory that everybody knows that a vote to deem is a vote to pass. (In other words, nobody is being fooled.)

    The more I think about it, the more I think that the procedure is valid. But (as I may talk about in a post later) it could the substantive review of the individual mandate.

  3. David Adams says:

    The problem with your argument is that the same clause also says:

    “excepting such parts as may in their judgment require secrecy”

    Therefore, a majority of the House could vote that secrecy is required.

    However, that would likely subject such a vote to a filibuster. Since it is likely that there are not enough votes to brake a filibuster in the case of the Healthcare “deem and pass” it creates a very interesting situation.