Is "Deemed into law" constitutional?

Slaughter House Rules

Excerpt:

We're not sure American schools teach civics any more, but once upon a time they taught that under the U.S. Constitution a bill had to pass both the House and Senate to become law. Until this week, that is, when Speaker Nancy Pelosi is moving to merely "deem" that the House has passed the Senate health-care bill and then send it to President Obama to sign anyway.

Under the "reconciliation" process that began yesterday afternoon, the House is supposed to approve the Senate's Christmas Eve bill and then use "sidecar" amendments to fix the things it doesn't like. Those amendments would then go to the Senate under rules that would let Democrats pass them while avoiding the ordinary 60-vote threshold for passing major legislation. This alone is an abuse of traditional Senate process.

But Mrs. Pelosi & Co. fear they lack the votes in the House to pass an identical Senate bill, even with the promise of these reconciliation fixes. House Members hate the thought of going on record voting for the Cornhusker kickback and other special-interest bribes that were added to get this mess through the Senate, as well as the new tax on high-cost insurance plans that Big Labor hates.

So at the Speaker's command, New York Democrat Louise Slaughter, who chairs the House Rules Committee, may insert what's known as a "self-executing rule," also known as a "hereby rule." Under this amazing procedural ruse, the House would then vote only once on the reconciliation corrections, but not on the underlying Senate bill. If those reconciliation corrections pass, the self-executing rule would say that the Senate bill is presumptively approved by the House—even without a formal up-or-down vote on the actual words of the Senate bill.

Democrats would thus send the Senate bill to President Obama for his signature even as they claimed to oppose the same Senate bill. They would be declaring themselves to be for and against the Senate bill in the same vote. Even John Kerry never went that far with his Iraq war machinations. As we went to press, the precise mechanics that Democrats will use remained unclear, though yesterday Mrs. Pelosi endorsed this "deem and pass" strategy in a meeting with left-wing bloggers.

This two-votes-in-one gambit is a brazen affront to the plain language of the Constitution, which is intended to require democratic accountability. Article 1, Section 7 of the Constitution says that in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate." This is why the House and Senate typically have a conference committee to work out differences in what each body passes. While sometimes one house cedes entirely to another, the expectation is that its Members must re-vote on the exact language of the other body's bill.

As Stanford law professor Michael McConnell pointed out in these pages yesterday, "The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form." If Congress can now decide that the House can vote for one bill and the Senate can vote for another, and the final result can be some arbitrary hybrid, then we have abandoned one of Madison's core checks and balances.

Comment: The US Supremes would have a field day with this!