Wednesday, March 24, 2010

Deeming Again

By Mike Dorf

My latest FindLaw column addresses an issue raised by the abortive effort in the House of Representatives to pass health care reform via a "self-executing rule": What weight should be given to longstanding congressional practice in constitutional interpretation? (Short answer: Some.) Here I want to post a letter that UC Berkeley Law Professor Dan Farber and I sent to Representative Slaughter, Chair of the House Rules Committee, back when the self-executing-rule option was still on the table. After the letter, I have a few final thoughts on this fascinating little issue.

The Honorable Louise M. Slaughter
Chair, House Rules Committee
2469 Rayburn, House Office Building
United States House of Representatives
Washington, D.C. 20515

Dear Representative Slaughter:

As teachers and scholars of constitutional law, we are writing to express our strongly held view that the currently proposed self-executing rule for House enactment of health care reform would result in a fully constitutional statute.

Under the procedure now under consideration, the full House would first vote on a rule containing language declaring that upon passage of a further bill, the House reconciliation bill, the House would “hereby” concur in the Senate amendments to H.R. 3590, the bill that has already passed the Senate. Thus, once the House and Senate each pass identical reconciliation measures, each chamber will have produced two identical bills for the President’s signature. This procedure satisfies the Constitution’s “single, finely wrought and exhaustively considered, procedure” for lawmaking. I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

In Chadha, the Supreme Court invalidated a radical departure from the Article I, Section 7 procedure whereby a single congressional chamber could veto the President’s legal action, thereby inverting the constitutional order of events. Likewise, in Clinton v. City of New York, 524 U.S. 417 (1998), the Court struck down a law purporting to give the President a line-item veto, in clear violation of his constitutional obligation to sign or veto (or allow to become law without signing or pocket-veto) each “bill” as a whole. By contrast with the legislative veto and the line-item veto, the self-executing rule complies with the letter and spirit of Article I, Section 7. For that reason, it has been used for decades without occasioning controversy. Indeed, the very Line Item Veto Act invalidated in the Clinton case was itself adopted using a self-executing rule; yet in the course of litigation over the Article I, Section 7 formalities, no Justice in the majority or dissent even thought to question it on that basis. The self-executing rule, unlike the provisions in Clinton and Chadha, does not in any way affect the operation of an enacted statute or aggrandize congressional power; it is merely part of the process for enacting the law.

Critics of the self-executing rule have attempted to raise doubts by arguing that it would result in different actions being taken by the Senate and the House. According to this view, the Senate would have adopted its amendments to H.R. 3590 in a single bill, while the House would have adopted it in two bills: the combination of the rule and the reconciliation measure.

Yet just as in the House, so too in the Senate, passage of the amendments to H.R. 3590 but not the reconciliation measure, will have required two votes: In the case of the Senate, the first, procedural, vote on the amendments to H.R. 3590 was the cloture vote; the second vote was a merits vote. Thus, in both chambers, the initial bill will have been passed by a procedural vote followed by a substantive vote, while reconciliation will have passed by a single up-or-down vote.

More importantly, Article I, section 7 requires that any bill be “passed” by both houses of Congress, but does not specify the mechanism by which they give their approval. In particular, there is no constitutional requirement that the House and Senate express their majority support for a bill using identical procedures. On the contrary, Article I, Section 5 of the Constitution authorizes “Each House [to] determine the Rules of its Proceedings . . . .” This power necessarily entails that the House and Senate will have different rules from each other, as they have had since the beginning of the Republic. Such different rules mean that the method by which a majority in each chamber votes for a bill is within its own control. It is of no constitutional moment whatsoever that the House and Senate versions of a bill come out of differently named committees, or that debate in the Senate lasts longer than in the House, or vice-versa, or that votes are taken by roll call in one chamber but by voice vote in the other. Such differences fall well within the procedural prerogatives of each chamber.

Under the self-executing rule, a vote for the rule is a vote for the already-enacted Senate bill, subject to a condition subsequent, namely, House passage of the reconciliation measure. There is nothing unusual or untoward about such conditions subsequent. Congress frequently grants the President authority to take various measures--such as imposing sanctions against human rights abusers or collecting duties on goods from countries that engage in unfair trade practices--only upon the happening of some condition subsequent. The 2002 Authorization for Use of Military Force Against Iraq, for example, required the President to determine that further diplomatic efforts would be futile in order for the authorization to become effective. In this case, however, the condition subsequent merely applies to the internal procedural question of how the House votes on legislation, not to the actual operation of the statute.

The self-executing rule at issue here is especially appropriate in light of the fact that the occurrence of the subsequent condition is fully within the House's own control. If a majority of House members do not want to vote for the proposed health care reform legislation, they have two ways to vote against it: vote against the self-executing rule or vote against the reconciliation measure that triggers the “hereby” clause in the rule. By marked contrast with the legislative veto and line item veto, this procedure in no way short-circuits Article I, Section 7.

Finally, we would note that a lawsuit challenging the resulting health care reform legislation would face serious procedural obstacles. The difficulty of finding a plaintiff with a ripe claim before the Act’s regulatory provisions take effect, the enrolled bill doctrine, and the Constitution’s textual commitment to each chamber of the authority to decide upon its procedures all suggest that the measures at issue would not give rise to a justiciable case or controversy.

Nonetheless, members of Congress have an independent duty to abide by the dictates of the Constitution, regardless of whether the courts fully enforce that duty in any particular context. Fortunately, here there is no space between what the courts will allow and what you, as a conscientious legislator, may do. The proposed self-executing rule complies with the letter and spirit of the Constitution. If you have policy grounds for using this procedure, you may do so while honoring your constitutional oath.

Respectfully yours,

Michael C. Dorf
Robert S. Stevens Professor of Law
Cornell Law School

Daniel A. Farber
Sho Sato Professor of Law
Berkeley Law School

With the benefit of nearly a week of hindsight, was I right? On one question, I remain completely confident: As I said in my earlier post on this subject, using the self-executing rule would have made little political sense, because it would have provided virtually no political cover for those House members who didn't want to be on record as having supported the original Senate bill. I take it that the House itself reached the same conclusion when it decided to proceed via the more conventional route.

I also continue to think I got it right on the constitutional analysis, though I admit to being slightly less confident in this conclusion, thanks mostly to a set of tenacious comments and emails from a reader (and former law clerk for Justice Scalia), Hashim Mooppan. Readers interested in the technical details of his argument should look at his earlier comments, but I think I can boil the argument down this way:

1) Article I, Sec. 7 requires that each chamber pass the exact same bill for the President's signature to make it law;

2) Under the conventional procedure used by the Senate, a Senator who liked the original Senate bill but not reconciliation could simply vote for the original bill but not for reconciliation; however, under deem and pass, a House member could not express that view; to vote for the original Senate bill would require the House member to vote for both the rule AND for reconciliation, lest the condition subsequent deeming the original Senate bill passed by the House as well. So the House and Senate faced different packages, and that makes a substantive, not just a technical, difference.

That's not a bad argument but it fails, I continue to think, because procedural rules in each chamber routinely deprive members of those chambers of identical options. Consider the effect of committees. Suppose there is a bill in the House Armed Services Committee to fund some new nuclear submarine and to require employees of private military contractors in combat support operations to undergo some new psychological screening test. Congresswoman X supports the screening provision but opposes the nuclear sub. She moves to divide the bill in committee but her motion fails. Killing the bill in committee will prevent a full House vote on it. She would like to kill the submarine but advance the screening test. However, she has no way of combining these. Meanwhile, over in the Senate Armed Services Committee, the committee rules allow separate votes on the two measures simply on the request of a single committee member. (I am making these rules up, but they're similar enough to real ones.) It happens, however, that both measures pass in the Senate Committee, as they do in the undivided bill in the House Committee, and in the Senate they are recombined on the floor, so the final text of the bills from the two chambers is identical. This procedure clearly satisfies Art I, Sec 7, even though Congresswoman X, in her capacity as a member of the House Armed Services Committee, was denied an opportunity to vote against the sub but for the screening, while her counterpart in the Senate Armed Services Committee had that opportunity. The bottom line, however, is that what emerged after all the procedural rules were engaged was the same bill.

Now one might think that anything goes in committee--although even that concession would have to be based on a broad understanding of Article I, Section 5. But even if we distinguish committees from the full bodies, the procedural opportunities differ. To return to the core example in my earlier post, consider that under the cloture rule, a Senator who wants to vote for some measure--including, say, removing a provision from a bill via amendment--can't do so unless a super-majority permits him to, which it may not. Thus, he will be denied an opportunity to vote against a provision of a bill in a way that House members routinely will not be.

In the end, I think what divides those of us who disagree on this issue is our respective senses of the power of each chamber to make its rules under Article I, Section 5. Looking at the enormous, effectively outcome-determinative, power that procedural rules convey via the committee system, the cloture rule in the Senate, and a host of other mechanisms, I see the use of deem-and-pass as well within the normal range. Others see the language of Article I, Section 7 as doing a lot more work, even when the risks of upsetting the balance of powers are not nearly so clear as in cases like Chadha and Clinton. There I am content to leave the disagreement, especially now that the practical issue has gone away. So I'll happily read but won't add to any further discussion of the point in the comments.


Hashim said...

I appreciate the kind acknowledgement, and am pleased that I was able at least to convince you that the question was at least somewhat harder than you originally thought. Managing to (somewhat) restrain my tenaciousness, I too will agree to disagree, limiting myself to two parting (much briefer) comments.

First, I find it telling that, in your hypo, you felt the need to have the two Senate bills recombined on the floor so that they'd be precisely the same as the House bill--a tacit acknowledgement that Art. I, Sec. 7 would not have been satisfied if the two bills instead were passed in separate votes, even though the overall text would be identical to the overall text voted on by the House in a single vote. So the Senate's power over its rules is thus insufficient under Art. I, S.7 to let it break the House bill down into two bills and vote on them separately regardless of whether the same text ultimately gets passed in both chambers. Why, then, does its power over its rules allow it to do the converse, effectively joining two bills into one by having a single vote on them bundled together? I submit that the only possible justification is by taking the position that a "Bill" is whatever each Chamber says it is, a position that eviscerates the purpose of Art. I, S. 7 -- to have each Chamber vote on the same entire text.

Second, and more generally, the flaw with your analogies is that they involve differences between the Chambers' voting procedures that don't implicate Art. I, S. 7 -- they don't involve votes on the ultimate question whether a bill becomes a law. It's simply irrelevant whether there are different ways to move things out of committee, or different ways to stop debate, because nothing in the Constitution requires each Chamber to act identically w/r/t initial steps in the legislative process. Art. I, S. 7 does, however, does require that the two Chambers vote on the same text, and it's not the same text when one side votes on Text A + Text B, while the other side only votes on Text A, or votes on Text A and Text B separately -- as even your hypo implictly recognizes to be true, at least sometimes.

Again, I've much enjoyed these conversations and they definitely improved my thinking on the subject.


Can you allay my fears re the constitutional challenges to the individual mandate aspect of the HCR law?

The analyses I've seen by Prof. Chemerinsky and others seem a bit too optimistic, especially given the track records of the five conservative Supreme Court justices who will be telling us what the Constitution says on this point. (Will Roberts see this as his big opportunity to try to slap Obama back after the State of the Union kerfuffle?)

It does seem that the issue will boil down to whether the federal government has the power to urge/encourage/coerce individuals to purchase something not connected to any privilege or optional activity (e.g., driving). I'm worried that the five conservative justices would take a very narrow view of the federal government's power under the commerce clause, taxation power, or whatever, to do enforce the mandate. And the precedent that would support the mandate doesn't jump to mind. I hope that I am wrong.


Michael C. Dorf said...

I have a devastating rejoinder to Hashim but, true to my word, I won't jump back into the main line of argument here. ;-)

In response to the Secretary, I continue to think what I said in my FindLaw columns does the trick:

Jack Balkin's response on his blog to Randy Barnett strikes me as important too: This is structured as a tax, which does a great deal of the work.

AF said...


Since Dorf won't beat a dead horse, I will. I agree with you that Dorf's new points about procedural votes aren't all that persuasive because these are not "votes on the ultimate question whether a bill becomes a law."

In contrast, the first step of deem-and-pass *is* a vote on this ultimate question. Voting for the rule is a necessary (though not sufficient) step in passing the Senate bill. Crucially, voting for the amendments -- the second step in deem-and-pass -- is also insufficient to pass the bill; if the rule does not pass, the amendments do not enact the Senate bill. Voting for the Senate bill is two step process -- not just practically, but formally as well.

That is what distinguishes deem-and-pass from your hypothetical in which Congress first votes to consolidate the two bills and then votes on them together. In that scenario, a vote on the consolidated bill is formally sufficient to pass both measures. The earlier procedural vote -- while practically important -- is not *formally* a vote for or against the bill.

Your assumption seems to be that when Congress passes a bill through multiple votes, only the last vote is of constitutional significance. That may be true when the preliminary votes are formally just procedural votes. But it seems to me that when Congress adopts internal rules whereby the preliminary votes are *not* procedural, these votes can no longer be ignored for purposes of Article 1 Section 7. When the preliminary votes are taken into account, it is clear that Congress is voting for the two bills through separate processes -- and that the two bills can therefore be severed consistent with Clinton v. New York.

Hashim said...

AF -- I don't want to clog MD's comments given his understandable decision to let this go. If you email me (my work email is available at the hyperlink in his post), I will explain why I don't think your response is correct.


Mike: Thanks. I hadn't read your FindLaw pieces before, and those do allay my fears -- a bit.

My worry is that this question will likely be decided by Roberts, Alito, Kennedy, Scalia, and Thomas, and, as we saw in the campaign finance decision, the conservative majority on the court is not afraid to come out with a sweeping decision that ignores, elides, or distorts precedent.

While I agree with your reasoning, it does seem to me that the individual mandate will be a new animal for the court (jury duty and the draft will likely be shunted into separate boxes of tradition, national security, etc.). I just worry that because this is a fundamentally new creature, and existing authority does not make this a dead-bang easy case, the conservative majority will take the opportunity to deal a political blow to Obama and the Dems.

I guess my objection comes down to this: I don't believe the conservative majority will feel constrained by precedent in making its decision, and will allow their political leanings to carry the day. (Indeed, the hostile relationship between Roberts and Obama appears to create a situation ripe for political payback by the court.) The conservative majority would feel constrained, in my opinion, only if there were clear authority dictating the result. There doesn't appear to be.

That is to say, there's nothing out there that really prevents Justice Roberts and co. from penning an opinion that parrots the analysis of Rivkin and Casey. That's always been the case with the Supreme Court, but I feel the fear right now.

Perhaps I've simply lost faith in the illusion of constraint in the Supreme Court. (See, e.g., Bush v. Gore; Citizens United v. Federal Election Commission.)

Scott said...

I wonder whether it's also telling that Mike's examples of valid conditions subsequent involve post-enactment presidential action rather than the process of enactment itself. I assume he has a devastating answer to this point, too, but hanc marginis exiguitas non caperet.

Michael C. Dorf said...

I'm going to violate my self-imposed moratorium to say: 1) Vik Amar will shortly have a piece up on FindLaw that spells out points quite similar to the ones I have made; and 2) I don't deny that the analogies I have given in this post and my prior one are not exactly the same as deem-and-pass. That's what makes them analogies. The core claim is that deem and pass is much more like the sorts of pre-enactment procedures that we routinely accept than like the legislative veto or line-item veto. And now I'll really really shut up.

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