Saturday, March 20, 2010

Even if "Deem and Pass" is Unconstitutional Does Not Mean that Courts would Strike Down the Health Care Bill

I think that there is a credible case that "deem and pass" enactment of the health care bill would be unconstitutional -- the procedure seems to require "contingent" passage of provisions in a bill , which a fair reading of the language in the Constitution (art. 1, sec. 7) doesn't seem to allow. But just because the enactment procedure would be unconstitutional, does not mean that courts would strike it down as unconstitutional.

There are two judicial doctrines that might prevent courts from ruling on the constitutionality of a law enacted (or purportedly enacted) via a "deem and pass" process.

First, there is something called the "enrolled bill" doctrine. This doctrine provides that once a law is enacted by the legislature and signed by the president or governor, courts will assume that the law was enacted following proper legislative procedures. The rule seems aimed largely to prevent laws from being struck down when passed in good faith, but some technicality in the legislative process was ignored. For example, the texts of a senate bill and a house bill have minor language variances and, therefore, are not technically the same bill.

That said, there are some questions about the application of the doctrine to "deem and pass." First, courts do not necessarily apply the doctrine absolutely; some courts say that the "enrolled bill" is only evidence of the bill, and are willing to push back behind the executive signature to look at the text of the bills the respective chambers enacted. (I don't know how much further beyond the chamber enactments courts have been willing to push, however, which would be important in this case.) There are also suggestions that the enrolled bill doctrine has less application in cases where constitutionally-required rules were ignored, relative to rules adopted by each chamber for its own governance, but are not constitutionally specified.

Another reason that, even if "deem and pass" is unconstitutional, a court would not strike it down, is the so-called "political questions" doctrine. Here, as a matter of another constitutional principle -- the separate of powers -- courts refuse to involve themselves in constitutional judgment dedicated to other branches of the government. E.g., federal courts have said that whether a state has a "republican form of government" (as required by art. 4, sec 4) is a judgment given for Congress to make rather than the courts. As a result, the courts would be usurping congressional prerogative by making that judgment, and therefore courts refuse to make the judgment. (Interestingly, the text of Article 4, however, does not state that this judgment is given exclusively to the Congress.) It seems possible that the courts would conclude that whether a bill has "passed" a legislative chamber is constitutionally committed to the chamber itself, or to Congress as a whole and that, therefore, the courts will not review the judgment out of separation-of-power concerns.

So simply concluding that "deem and pass" is unconstitutional does not resolve the matter of whether Congress and the president could nonetheless use the procedure to enact a law that the courts would allow to be implemented.

One final note -- folks today often think that judges are the primary enforcers of constitutional requirements against politicians who ignore those requirements. That position would have shocked the framers of the U.S. Constitution. While they recognized the need for auxiliary precautions against unconstitutional actions, the primary enforcers of constitutional principles was supposed to be the people themselves in the ballot box. It is a dereliction of the constitutional duty of the people for us to hand that responsibility over to judges.


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