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.