If Deem and Pass or “self-executing rule” is Unconstitutional Why Have Republicans Used it So Often

The arms race of rules

The conservative case against “Deem and Pass” is getting very complex, very fast. Yesterday, the argument was that it was flatly unconstitutional. But it turns out that Republicans used Deem and Pass dozens of times while they were in power. So today’s furor is that Nancy Pelosi and Louise Slaughter joined Public Citizen in a lawsuit arguing that a bill that George W. Bush signed was invalid because Deem and Pass is unconstitutional. But the court ruled against Public Citizen, Pelosi and Slaughter. Deem and Pass, well, passed. And now Democrats are using it, too.

The Right is calling Speaker Pelosi a hypocrite. That’s a strange new definition of hypocrite. Republicans, while in the majority used deem and pass (self executing rules) to pass far more legislation than Democrats. The courts ruled that it was OK. How The honorable Speaker is simply using the brick bat Republicans created to beat them with. I’m not particularly a proponent of spiteful behavior and in this case, considering Speaker Pelosi’s record of looking out for middle and working class Americans, she feels that the parliamentary procedure, having been used by Republicans and ruled legal, is a legitimate way to proceed. Is she having the last laugh. For now anyway. As Ezra points out much like reconciliation these parliamentarian battles are largely about the minority party versus the majority party. Unless the Senate in particular does something about its rules – a super majority of 55 rather than 60 seems more reasonable for example – than both parties are free to use any trick they have up their sleeve. Remember that Conservatives used reconciliation more than Democrats and now they’re using every hyperbolic attack that can fly out of Glenn Beck and Mitch McConnel’s(R-KY) back-side to demonize reconciliation. Then publicly proclaimed they would use parliamentary tricks ( amendments) to stop reconciliation of health care reform. Considering recent history of both the use of “Deem and Pass”, reconciliation and abuse of the implied filibuster, its difficult to be too damning of Speaker Pelosi should she chose to use all the legislative weapons at her disposal.

Time has a blog post up on the current history of self-executing rules. The Slaughter Solution? Another name might be the Dreier Doctrine.

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.

As the director of the Woodrow Wilson Center’s Congress Project (and former staff director of the House Rules Committee) says, I don’t like the rules, but as we can see they’re not unconstitutional. If they are the Republicans that used them will surely turn themselves in to the U.S. Marshall’s office immediately. Michelle Malkin will be bringing some of the fish she says she catches so prison life should be a little more tolerable.

Jack Balkin is not crazy about deem and pass either, but does see a way that it could be done with health care reform that does pass the Constitutional test, Is Deem and Pass Constitutional?

Despite Judge McConnell’s concerns, which are textually well founded, there is a way that “deem and pass” could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed.

Balkin is a lawyer so it is best to read all his what ifs and caveats. He is certainly correct that because of Article I, section 7 Pelosi might be giving conservative Democrats rhetorical cover with deem and pass, but in legal terms it will be as though those conservative Democrats did vote for the Senate bill. Once health care reform passes even Rep. Stupak(D) will be scrambling to take a share of the credit and regardless of the way it passes Republican will try to use it against them. I can see the ads now – Democrats got 30 million more Americans health care coverage, did away with insurance companies dropping people with preexisting conditions and helped control spiraling health care costs, don’t vote for those rascals. They’ll get the tea smokers vote.

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