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Deconstructing deem and pass: a constitutional analysis of the enactment of bills by implication.

ABSTRACT

Since 1933, the U.S. House of Representatives has maintained a procedure, the self-executing rule, that permits a single floor vote to pass multiple independent bills. Using this procedure, the House can pass a bill and, at the same time, "deem passed" entirely separate bills via a single floor vote. Some legal scholars have argued that this procedure is constitutionally unobjectionable, provided that members of the House clearly understand the legislative effects, whether singular or plural, of a particular vote. Others, however, have argued that the device violates the Constitution because the House and Senate do not vote on the same question. Careful consideration of the relevant constitutional text and legislative history reveals that the question does not have an easy or obvious answer. Perhaps surprisingly, the Constitution does not speak with clarity on whether a single floor vote may pass multiple, separate bills, nor does the Constitution's legislative history provide any clear guidance on this question. Instead, the answer depends on whether one generally embraces formalism or functionalism in one's separation of powers analysis. From a formalist perspective, the House and Senate must not only adopt the same identical text, but must also vote on the same question. From a functionalist perspective, however, the precise procedure used to approve the text should not matter so long as both the House and Senate take political responsibility for adopting a particular statutory text. Given the relatively weak reasons that undergird the House 's use of the deem-and-pass procedure--namely a desire to avoid political responsibility for unpopular legislation by rendering electoral accountability more difficult the formalist position has much to recommend it.

I. INTRODUCTION

In March 2010, Rep. Louise Slaughter, then-chair of the Rules Committee of the House of Representatives, with the approval of then-Speaker Nancy Pelosi and the House Democratic party leadership, publicly floated the idea of using a special "self-executing" rule to permit the members of the House to use a single floor vote to adopt a bill that would simultaneously amend and pass the Senate-enacted health care reform bill. (1) Under the special rule, dubbed the "Slaughter Solution" by critics, (2) House approval of the separate House-originated amendments bill would also "deem" passed the Senate bill. (3) The vote on the amendments legislation would, therefore, advance the Senate bill to the President for his consideration and also send a new House bill containing amendments to the Senate bill to the Senate for its consideration. (4) If the Senate enacted the House amendments bill, that bill would also be presented to the President for his consideration; the fate of the House amendments bill, however, would be wholly independent of the fate of the Senate version of the healthcare reform legislation.

Then-Majority Leader Steny H. Hoyer defended the proposed parliamentary maneuver arguing that the use of a special rule "deeming" the Senate bill enacted upon passage of the House amendatory bill "is consistent with the rules" and "is consistent with former practice." (5) President Barack Obama also demurred when asked about the legitimacy of using this procedure to enact comprehensive health care reform, saying "I don't spend a lot of time worrying about what the procedural rules are in the House or Senate" and suggesting that "[i]f people vote yes, whatever form that takes, that is going to be a vote for health-care reform." (6)

A public outcry against this "deem-and-pass" procedure arose, (7) and the House leadership ultimately abandoned the plan, instead holding a separate floor vote on the Senate health reform bill and then a second, wholly independent vote on the House amendments legislation. (8) Upon passage in the House, the Senate health care reform bill advanced to the President and the separate amendments bill advanced to the Senate for its consideration. (9)

During the contretemps over the possible use of deem-and-pass to enact the Senate bill without amendments, leading constitutional law scholars offered strikingly divergent opinions regarding the constitutionality of the procedure. Professor Michael McConnell argued that the deem-and-pass maneuver was patently unconstitutional; (10) whereas Professor Jack Balkin opined that the procedure was assuredly constitutional. (11) Other legal academics offered summary conclusions on the question in the press without providing any independent constitutional analysis. (12) Finally, some legal commentators seemed rather unclear on precisely what the procedure entailed, but nevertheless expressed skepticism about it. (13)

Because the House leadership ultimately abjured the use of the special rule, the controversy has largely fallen away. Ultimately, President Obama signed both the original Senate bill (14) and House amendatory bill (15) into law, (16) and the Supreme Court subsequently sustained the law's individual mandate to purchase health insurance coverage, a central enforcement feature of the Patient Protection and Affordable Care Act. (17) Even so, the rules of the House of Representatives still permit use of the deem-and-pass procedure, and its constitutional status deserves more sustained analysis than it has received to date. Indeed, no carefully considered legal analysis of the procedure exists in scholarly literature, and only a handful of law review articles mention self-executing rules at all. (18) The rather fundamental question of what it means for a house of Congress to "pass" a bill demands more thorough attention and analysis.

The answer to the constitutional question of whether a single floor vote may pass multiple, separate bills does not have an obvious answer. (19) The text of the Constitution does not clearly resolve this question. (20) Nor is recourse to the legislative history of the Constitution much help in answering what, at first blush, seems as if it should be an easy, indeed obvious, issue. (21)

Ultimately, the constitutionality of a special rule using the deem-and-pass maneuver turns on extra-textual considerations that generally track the debate between formalist and functionalist theories about the separation of powers. (22) From a formalist perspective, deem-and-pass is objectionable because each house of Congress does not vote on the exact same question incident to consideration of an identical legislative vehicle. Instead, the House of Representatives votes on the Senate-passed bill, in addition to other legislative acts. These other acts could include bills originating in the House of Representatives, other Senate-passed bills, and conceivably even overrides of presidential vetoes. This arguably undermines the bicameralism requirement set forth in Article I, Section 7. (23) If, as Professor McConnell argues, Article I, Section 7 requires both houses to conduct votes on identical questions, the use of a self-executing rule that "deems" another bill enacted should be constitutionally impermissible. (24)

From a functionalist perspective, on the other hand, a single vote could advance an infinite number of bills, so long as the bill serving as the legislative train's engine receives majority support, the members are clear on the precise effects of the vote, and a majority agrees by special rule to permit a single floor vote with multiple legislative effects. In other words, no serious constitutional objection exists provided that all the members are clear on the legislative outcome of a positive vote because each house has a constitutional mandate to establish its own internal operating procedures. (25)

The use of deem-and-pass special rules obviously presents a serious and difficult question of constitutional law: May a single floor vote in either house of Congress have multiple legislative effects that advance entirely separate bills simultaneously? The Constitution plainly requires that both houses of Congress must "pass" a bill in order for it to become a law, (26) but does this bicameralism requirement, set forth in Article I, Section 7, encompass a duty on the part of both houses to take the exact same vote?

In the end, and despite the importance and centrality of this question, the federal courts might well decline to reach the merits of a challenge to the deem-and-pass procedure--save perhaps in the case of a presidential veto override vote. (27) Even so, consideration of the constitutional status of the deem-and-pass procedure is important because it demonstrates that in matters of constitutional law we often know a great deal less than we think we know. Furthermore, both Congress and the President may someday need to consider not merely the political implications of the deem-and-pass procedure, but also its constitutional status, when deciding whether to embrace its use in the federal legislative process.

This Article considers these questions in some detail over the next six parts. Part II examines the use of special rules, including the deem-and-pass special rule, in the House of Representatives. (28) Part III analyzes the Constitution's text with respect to the enactment of bills, the ratification of treaties, and the override of presidential vetoes. (29) Part IV undertakes a review of the legislative history of the Constitution in general, and Article I's provisions on the enactment of laws in particular, to determine whether the Framers expressed any clear intention regarding whether each house of Congress must take an identical vote, rather than simply adopt the same text via non-mirror image votes. (30) Part V offers an analysis and critique of the House's use of the deem-and-pass procedure from both formalist and functionalist perspectives. (31) Part VI considers whether the federal courts would be willing to reach the merits of a constitutional challenge to the House's use of deem-and-pass special rules to enact bills only by implication rather than directly. (32) Finally, Part VII briefly concludes and summarizes my argument. (33)

Because the use of the deem-and-pass maneuver significantly diminishes accountability and transparency, and also undermines the importance of the bicameralism requirement, the practice should not be used to advance multiple separate bills through a single floor vote. Moreover, the question of what the Constitution requires for both houses of Congress to pass a bill should constitute a justiciable question, although this proposition is arguably stronger in contexts involving the use of deeming to override a presidential veto or to ratify a treaty.

II. SPECIAL RULES, SELF-EXECUTING RULES, AND THE DEEM-AND-PASS PROCEDURE

Since the New Deal era, the House of Representatives has used a variety of "special rules" designed to facilitate or expedite the legislative process. A "special rule" refers to a rule that waives or alters the legislative procedures on the floor of the House with respect to a particular bill or resolution, thereby departing from the "regular order." (34) Deem-and-pass rules originated in the 1930s (35) (the same time that Congress devised the legislative veto) (36) and the procedure has been used hundreds of times over the past eighty years by the leadership of both political parties. (37) Thus, deem-and-pass rules enjoy a reasonably long and non-partisan historical imprimatur. Nor has the procedure ever been successfully challenged in federal court. (38) Myriad forms of special rules exist, including "deem-and-pass," but also including "king-of-the-mountain" special rules. (39)

A special rule generally defines what amendments, if any, will be in order on the floor and also can specify what particular legislative effects either passage of the special rule or another piece of legislation will have. Strictly speaking, a rule providing for the enactment of another bill or the incorporation of an amendment without committee action or a floor vote constitutes a species of a "self-executing rule." (40)

A Congressional Research Service report explains that:
   One of the newer types [of special rules] is called a
   "self-executing" rule; it embodies a "two-for-one" procedure. This
   means that when the House adopts a rule it also simultaneously
   agrees to dispose of a separate matter, which is specified in the
   rule itself. For instance, self-executing rules may stipulate that
   a discrete policy proposal is deemed to have passed the House and
   been incorporated in the bill to be taken up. The effect: neither
   in the House nor in the Committee of the Whole will lawmakers have
   an opportunity to amend or vote separately on the "self-executed"
   provision. It was automatically agreed to when the House passed the
   rule. (41)


Most commonly, the Rules Committee proposes a self-executing rule to dispose summarily of Senate amendments to an earlier House-passed bill. (42) However, there is nothing in the House rules that would prevent the use of a self-executing rule to "deem passed" an entirely independent piece of legislation rather than to incorporate amendments into a pending bill. (43)

Sarah Binder, a senior fellow at the Brookings Institution, explains that self-executing rules "provide that the House--upon adoption of the special rule--is considered or 'deemed' to have taken some other action as well." (44) Moreover, the "deeming" function, under the terms of a rule, could be tied either to adoption of the rule itself or to the subsequent vote on the bill the rule addresses. Thus, the passage of a bill by deeming would not necessarily have to be a function of enactment of the special rule but could instead relate to the vote on the main bill to which the special rule relates. (45)

To adopt a special rule, however, the House must adopt the report of the Rules Committee that pertains to a specific bill. (46) Accordingly, there must always be at least two floor votes: a vote on the special rule, and a subsequent vote on the substantive legislation itself. (47) As House Practice observes:
   A resolution that specifies the manner in which a measure is to be
   taken up and the procedures to be followed during its consideration
   is called a "special order of business" or "special rule." Such a
   resolution, once adopted by the House, gives privilege to the
   measure to be considered .... By adoption of a special order by
   majority vote, the House establishes the parameters of its agenda
   on an ad hoc basis. (48)


The Rules Committee enjoys broad discretion to use its authority to establish a special rule for consideration of a particular bill. "The privilege of the Committee on Rules to report special orders of business extends to special orders for the consideration of individual bills or classes of bills or the consideration of a specified amendment to a bill and the prescription of a mode of considering such amendment." (49) The only real restriction on the Rules Committee is the necessity of securing enactment of the special rule by the House; a special rule can exist only if the House itself votes to adopt it.

The Rules Committee uses a special, self-executing rule most commonly to secure agreement to Senate amendments to a House-passed bill. This device permits the House to avoid committing the amended bill to a House committee of jurisdiction and also obviates the need for a floor vote on the amendment or amendments:
   The Committee on Rules may recommend a "hereby" resolution that
   provides for a concurrent resolution correcting the enrollment of a
   bill to be considered as adopted by the House upon adoption of the
   special order. Similarly, it may provide that a Senate amendment
   pending at the Speaker's table and otherwise requiring
   consideration in Committee of the Whole be "hereby" considered as
   adopted upon adoption of the special order or considered as adopted
   with a further specified amendment. (50)


Although "at one time the Rules Committee used self-executing amendments only for making technical changes, the Rules Committee increasingly uses such amendments to make substantive changes in bills without subjecting the changes to separate debate and votes." (51) This approach makes great sense if the House wishes to concur with Senate amendments and simply debate and vote directly on the Senate-enacted version of a pending bill. The Senate amendments are "deemed passed" and the House considers the Senate version of the bill directly, rather than taking separate votes on amendments or sending the bill to a joint conference committee for the purpose of writing a blended bill.

House rules clearly permit the use of a special rule to do more than merely amend a pending bill. (52) The device, simply put, provides a means to "hook-up" otherwise independent legislative measures--bills that otherwise would require independent, separate floor consideration--including measures to incorporate amendments and to enact other freestanding pieces of legislation. (53) For better or worse, House practice permits the use of a self-executing rule that "consider[s] as adopted" either an amendment or an entirely different bill. (54)

For example, in the context of the 2010 health reform legislation, the most likely form of a deem-and-pass special rule would have made the vote on the amendments package--rather than the rule itself--the act that "deemed passed" the Senate version of the bill. Thus, if the special rule had carried at step one, a subsequent vote on the House amendments bill would also have the legislative effect of "deeming passed" the entirely separate Senate version of the health care bill. As a matter of metaphysics, at the instant the Speaker gaveled to a close the vote on the House amendments bill and declared it passed, the Senate bill would simultaneously be "deemed" enacted as well. In effect, a single floor vote would have two entirely separate legislative effects: a majority vote would enact both x and y, rather than simply x or y.

A special deem-and-pass rule may have the effect of linking unrelated pieces of legislation for the purpose of a single floor vote. In theory the House Democratic leadership could have made House passage of the Rules Committee resolution the vote that "deemed passed" the Senate version of the health care reform bill. But, linking the passage of the Senate bill to the floor vote on the substantive House amendments bill, rather than to the Rules resolution, would benefit the majority party's members by avoiding the possibility that the Senate bill might pass while the House amendments bill fails.

At all points in time, however, the House members are cognizant of the effect of a particular floor vote. If a special rule itself has a "deem-and-pass" clause or establishes that a subsequent positive floor vote "deems" another bill or an amendment to be passed, all members of the House of Representatives have clear notice of the precise effect of a vote on both the rule and also the substantive bill. Accountability, then, is not really diminished in the House of Representatives, and an interested constituent could ascertain precisely what proposition her member of Congress supported on the floor of the House.

Moreover, there is, at least in theory, no restriction on the number of legislative effects that could be linked together via a deem-and-pass special rule. The House could enact multiple Senate bills, advance multiple independent bills to the Senate, and perhaps even override a presidential veto with two votes: one on a special rule that specifies how the deem-and-pass will work and a second on the "engine" measure that will trigger the deem-and-pass effects. This assumes, of course, that the deem-and-pass linkage uses the substantive bill, rather than the special rule itself, to work its legislative magic. A successful linkage simply requires specification that enactment of either the special rule itself or subsequent House enactment of the bill the special rule addresses will have the additional effect of also enacting other bills or overriding a presidential veto (or vetoes) concurrently.

In recent times, the House leadership, under both parties, has been using special rules with more frequency and greater creativity in order to control and shape the legislative process. Walter Oleszak explains that "[s]tarting about twenty-five years ago, in response to developments such as increased partisanship and uncertainty with respect to how long or controversial the amendment process on the floor might be, the Rules Committee began to issue more procedurally imaginative and complex rules." (55) Jess Bravin adds that "[b]oth parties have used deeming many times dating back to at least 1933," (56) and have used a special, self-executing rule to secure passage of major legislation. For example, "[u]nder Republican Speaker Newt Gingrich, the House used it to pass a bill in 1996 that gave the president line-item veto power over the federal budget." (57) The House also has used this procedure "to pass such legislation as the smoking ban on domestic airline flights, an employment verification system meant to screen out illegal immigrants and a ban on using statistical sampling for the 2000 census." (58)

Moreover, such self-executing rules have been used dozens of times in recent sessions of Congress. (59) The House has even used self-executing rules to enact major legislation. As Binder observes, "perhaps the most salient use of self-executing rules--reaching back to 1979--allows the House to avoid casting a direct vote on raising the federal debt limit." (60) She persuasively observes that "[i]t is hard to argue that there's any measure more central to the functioning of the nation than its ability to issue debt." (61)

One might ask, why would the House use a special rule to enact either amendments or a major piece of legislation? The answer is obvious: these devices permit a member to go on the record on a given question (even if the final bill does not incorporate the member's proposed amendment) or avoid going on the record, at least nominally, with respect to an unpopular bill. Consider, for example, a "king-of-the-hill" self-executing rule. Brown and Johnson explain,
   Although regular order does not permit further amendments to a text
   once it has been amended in its entirety, a "king-of-the-hill" rule
   permits several substitute amendments to be voted on in the
   Committee of the Whole, with only the last one adopted to be
   considered as finally adopted and reported to the House. This
   procedure permits consideration of conflicting amendments in a
   series, with only the one winning the most votes being finally
   voted on in the House. (62)


Professors Frymer and Yoon report that normally "only the last successful amendment passed becomes part of the legislation" as opposed to the amendment winning the most votes. (63) The purpose of this parliamentary stratagem is to make it easier for members to defend their final vote before their constituents: "After a series of extreme stances, it becomes easier for members to defend themselves to their constituents--they are only one of 435 people; they voted in correspondence with constituency interests as much as possible; but in the end, they accepted the 'compromise' to avoid a potentially worse outcome." (64) Professors Frymer and Yoon go on to explain that "'[s]elf-executing' rules have a similar ability to insulate members from controversial decisions." (65) They observe that "the party leadership wants to fred a way to structure the choices offered to its members on the House floor so that members can vote with the party without deeply offending their constituents, and, if constituents are offended, to cover up their own involvement in the legislation's passage." (66) Hardly the stuff of Profiles in Courage, (67) to be sure. The device exists to try to obfuscate--or avoid entirely--hard votes for legislation that will likely prove noxious to a member's constituents.

It is patently obvious that the motive for at least some special rules is highly questionable. The self-executing rule renders political accountability for unpopular votes more difficult, and the "king-of-the-hill" special rule permits a member to take false credit for an unincorporated substitute version of a bill. Both rules facilitate politically useful "position taking" that can enhance the member's prospects for reelection. (68) The idea is that by staking out positions, rather than actually making decisions, the member satisfies the policy demands of her constituency without actually breaking from the leadership. As Mayhew puts it, "The electoral requirement is not that [s]he make pleasing things happen but that Is]he make pleasing judgmental statements." (69)

Does the use of a self-executing rule really work to insulate members from political accountability for the net effects of their floor vote on the main bill? Brookings Institute Senior Fellow Sarah Binder is highly dubious, observing that she "would hazard [that] most close observers doubt that it will make a difference to voters whether Democrats explicitly voted for the Senate-passed [health care reform] bill or voted for a procedure that allowed it to be passed." (70) Even so, "legislators sure think it matters" because use of the deem-and-pass procedure "offers a method of avoiding blame should they be attacked come election time for their votes." (71) Thus, Frymer and Yoon have observed that the game afoot involves the House Rules Committee "cleverly ... devis[ing] procedures that allow members to support the party leadership while at the same time appealing to their districts through various complex and restrictive rules." (72)

To date, the rules of the Senate do not include the use of the deem-and-pass special rule. However, if the Constitution permits its use by the House, the Senate could certainly decide to adopt the procedure at some future point in time. Were the Senate to use the deem-and-pass procedure, the accountability problem associated with its use by the House would be greatly exacerbated. (73)

Regardless of the efficacy of the House's use of special rules as a means of either avoiding a hard vote or going on the record for a bill that everyone knows will not receive a final floor vote, a larger question remains, particularly with respect to the use of a special rule to vest a single floor vote with multiple, perhaps wholly unrelated, legislative effects: Does the Constitution permit a single vote, or even a pair of floor votes, to advance a potentially infinite number of separate bills? The question of the constitutional status of the deem-and-pass procedure should be considered independently of its political morality or political expediency.

III. THE CONSTITUTIONAL TEXT AND THE ENACTMENT OF BILLS

Despite the fundamental importance of how Congress operates, the Constitution provides precious little detail about the operation of each house of Congress or the potential effect of a single floor vote (or pair of votes) in particular. One would think that the Framers would have carefully delineated the steps necessary to enact a law, including the procedural steps and substantive effect of a floor vote in either chamber. Surprisingly, the Constitution's text is entirely silent on these questions.

To be sure, the Constitution does establish a few procedural requirements for the enactment of a law or ratification of a treaty. In particular, Article I, Section 7, Clause 2 provides that:
   Every Bill which shall have passed the House of Representatives and
   the Senate, shall, before it become a Law, be presented to the
   President of the United States; If he approve he shall sign it, but
   if not he shall return it, with his Objections to that House in
   which it shall have originated, who shall enter the Objections at
   large on their Journal, and proceed to reconsider it. If after such
   Reconsideration two thirds of that House shall agree to pass the
   Bill, it shall be sent, together with the Objections, to the other
   House, by which it shall likewise be reconsidered, and if approved
   by two thirds of that House, it shall become a Law. But in all such
   Cases the Votes of both Houses shall be determined by yeas and
   Nays, and the Names of the Persons voting for and against the Bill
   shall be entered on the Journal of each House respectively. If any
   Bill shall not be returned by the President within ten Days
   (Sundays excepted) after it shall have been presented to him, the
   Same shall be a Law, in like Manner as if he had signed it, unless
   the Congress by their Adjournment prevent its Return, in which Case
   it shall not be a Law. (74)


This clause plainly requires bicameral enactment and presentment to the President, (75) but it does not specify whether a single vote of either House may advance more than one bill at a time. The relevant operative language--"shall have passed"--simply does not define what "passed" means. Thus, Article I, Section 7's literal language does not specify any particular rules for the consideration of pending legislation, nor does it explicitly require that a single floor vote have only one legislative effect or that both houses of Congress vote on precisely the same question when enacting a bill.

In one context, the Constitution does provide particularized procedures. Article I, Section 7, provides very specific procedures governing the overriding of a presidential veto:
   But in all such Cases [of veto override votes] the Votes of both
   Houses shall be determined by the yeas and Nays, and the Names of
   the Persons voting for and against the Bill shall be entered on the
   Journal of each House respectively. (76)


This provision requires a recorded vote by name. Normally, the Constitution requires recorded votes only if at least one-fifth of the members present and voting request a recorded vote on any question pending before the body. (77) Thus, the veto override provisions require a recorded vote that facilitates political accountability. A veto cannot be sustained or overridden on a voice vote, which means that each member must publicly declare her position on the question at issue if she elects to vote.

Moreover, the legislative history of the Constitution demonstrates that the Framers considered, but expressly rejected, a lower threshold for requiring votes to be recorded in either house of Congress. (78) The delegates at the Federal Convention feared that the ability to demand a recorded vote with less than 20 percent of the voting members would invite procedural shenanigans that would disrupt the operation of the House and Senate. (79) In the case of a presidential veto, however, the delegates believed that it was important to force a public vote on the question of an override and required a recorded vote as a condition of a valid veto override. (80)

Perhaps more important, the text of Article I, Section 7 specifies that "[i]f after such Reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House it shall become a Law." (81) The precise language used, "the bill," as well as the consistent use of a singular pronoun (viz., "it"), seems to bespeak that only the vetoed bill will be pending before the House during the veto override proceeding.

By way of contrast, the constitutional language creating the bicameralism requirement provides that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States." (82)

Rather than "a bill" or "the bill," the Framers wrote the bicameralism requirement in vaguer terms than the veto override procedure rules. This nomenclature lends further support to a constitutional requirement that a veto override vote be limited solely to the question of sustaining or overriding the President's veto of a single bill.

Thus, one could infer from the text of Article I, Section 7 that a straight up or down vote should be required on at least the override question. Because the Constitution provides such specific rules governing override proceedings, it would be something of a stretch to suggest that a vote on an unrelated bill, even if recorded, would satisfy the requirements of Article I, Section 7. When a President exercises a veto and Congress wishes to override that decision, it must observe specific procedures, and these procedures do not permit the override vote to include extraneous legislative business unrelated to the up-or-down vote on sustaining or overturning the veto. Given the specificity of the procedures for a veto override vote, it would be very odd to say that the House could employ a special rule to piggy-back other legislation on a floor vote to override a presidential veto.

Presumably the House could not amend a vetoed bill before voting on whether to override the veto--even incident to a special rule governing the veto override proceeding on the floor. The amendment itself would trigger the requirement of bicameral enactment and presentment to the President for signature or veto. (83) To yoke another bill, or any other legislative measure, to a veto override vote would be to deny the President a full, fair, and clean consideration of his reasons for rejecting the bill. It also would undermine the practical and political utility of the recorded vote requirement. A member could say "I voted for the override measure in order to advance another bill, not because I rejected the President's position on the vetoed bill," thereby denying the President, and the member's constituents, the ability to hold that member of Congress politically accountable for opposing the President's position. So too, using a veto override to achieve unrelated legislative effects would not really constitute a vote on "the Bill." Considering unrelated questions when voting on a motion to override a presidential veto means that House members are not simply voting on the vetoed bill, but rather on the vetoed bill and something else; this would deny the President the full benefit of the procedural protections, including enhanced accountability and transparency for override votes, that the Framers intended to provide both the President and the citizenry who elect members of Congress.

Consistent with this analysis, I could not find any instance of a special rule being used to "deem and override" a presidential veto or a veto override vote being used to advance unrelated bills. Instead, the historical practice of the House of Representatives has been to hold clean votes on overriding a presidential veto when the only question pending before the chamber is whether to enact the bill into law notwithstanding the President's exercise of a veto. Of course, the fact that the House has not yet used a special rule in the context of a veto override vote does not mean that the House would never attempt such a legislative maneuver. The validity of the special rule procedure is an important question not only with respect to past practice, but also with respect to future legislative practice. Given the House's present practice, however, the Constitution answers a question that the House of Representatives has not yet sought to ask.

The treaty power also merits brief mention. As with a presidential veto, the Constitution expressly provides a procedure for ratification of a treaty. More specifically, Article II, Section 2, Clause 2 states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." (84) Thus, the President has the sole power to negotiate and conclude treaties, but for a treaty to be ratified, the Senate must approve the treaty by a two-thirds majority vote, with a quorum present. (85) As in the case of a veto override, strong arguments exist that the Constitution should be understood to require that the Senate afford a treaty a clean vote. (86) This is especially true given the diplomatic implications of the Senate refusing to ratify a treaty signed by the President or--and arguably worse--ratifying a treaty without careful and sober consideration. It would be particularly objectionable for the Senate to approve a treaty using a deem-and-pass maneuver because the treaty power may be used to expand the scope of federal power beyond the four corners of Article I, Section 8. (87) Because treaties can arguably extend the scope of federal authority thereby preempting pre-existing residual state authority, (88) such decisions should be made only through a clean up or down vote on ratification.

To be clear, I do not argue that the Senate has any absolute duty to vote on all treaties submitted by the President for ratification. I argue only that the presence of a specific procedure for the ratification of a treaty arguably should be read to limit the Senate's power to use its general authority under Article I, Section 5 to make and enforce rules of procedure to govern its own operations. The Senate remains free to vote, or not vote, on a treaty submitted by the President for a good reason, a bad reason, or no reason at all.

Although the deem-and-pass question cannot arise in this context, because the House of Representatives has no role in the ratification of a treaty and the Senate does not currently use the deem-and-pass procedure, the text of Article II is important in contextualizing the use of special rules. I would argue that the treaty ratification procedure specified in Article II should be understood to preclude a deem-and-pass procedure with respect to ratification votes, if the Senate were to adopt the practice at some point in the future. The Constitution's specific provisions for ratification of a treaty arguably should be read as establishing the exclusive procedures for ratification. Moreover, the President deserves a straight up or down vote on the treaty itself given the potentially severe negative foreign relations implications of failing to ratify a pending treaty and the concomitant, structural changes that a ratified treaty can work in "Our Federalism." (89) This argument is, to be sure, as much functionalist as formalist because the text of the Constitution does not expressly require the Senate to afford proposed treaties a straight up or down vote on ratification. (90)

The specific constitutional provisions governing the override of presidential vetoes and the ratification of treaties suggest that Congress may not use a special self-executing deem-and-pass rule to take extraneous actions unrelated to the vetoed bill or the pending treaty. (91) But what about the constitutional status of using special, self-executing rules in other contexts to allow a single floor vote to advance multiple, independent bills? One must discern the precise meaning of "passing" a bill in the House or Senate in order to analyze the constitutionality of using self-executing rules to achieve multiple, legislative effects via a single floor vote in these other, more quotidian contexts.

James Madison feared that Congress might attempt to evade the presentment requirement by calling a bill something else. To avoid this, he successfully urged the delegates to adopt the rule reflected in Article I, Section 7, Clause 3:
   Every Order, Resolution, or Vote to which the Concurrence of the
   Senate and House of Representatives may be necessary (except on a
   question of Adjournment) shall be presented to the President of the
   United States, and before the Same shall take Effect, shall be
   approved by him, or being disapproved by him, shall be repassed by
   two thirds of the Senate and House of Representatives, according to
   the Rules and Limitations prescribed in the case of a Bill. (92)


This so-called "ORV" Clause prevents the use of creative nomenclature to avoid the presentment requirement. It does not, however, define what "passage" of a bill requires. The Constitution does define a "quorum" for the purpose of conducting business, (93) but it simply does not provide any specific procedural rules for voting on pending legislation (save, as noted above, in the case of overriding a presidential veto).

Article I, Section 5, Clause 2 provides language that could be relevant to defining the "passage" requirement:
   Each House may determine the Rules of its Proceedings, punish its
   Members for disorderly Behaviour, and, with the Concurrence of two
   thirds, expel a member. (94)


This language would seem to empower either house to establish rules governing floor action and, arguably, to define for itself what "passage" means.

As a general matter, then, the text of the Constitution does not directly speak to whether a single floor vote can advance multiple, separate bills at once under a special rule. A single floor vote could create five legislative effects. The House of Representatives could "pass" three Senate bills and send them to the White House while also "passing" two additional House bills headed for the Senate. Contrary to Professor McConnell's claims, (95) there is no textual requirement that every bill receive its own floor vote within the four corners of the Constitution.

There remains, of course, one final context in which the use of a deem-and-pass rule might be constitutionally unobjectionable: to waive House rules that would otherwise require commitment of a bill to a committee or separate floor votes on a series of amendments to a House-initiated bill. It is difficult to see the harm in allowing the use of a special rule to waive internal House rules, perhaps to expedite consideration of a bill amended by the Senate. So long as the House actually takes a single vote on the same question as the Senate, no serious objection can exist to the use of the deem-and-pass procedure. Such use of a special deem-and-pass rule seems entirely within the residual authority of the House under Article I, Section 5, Clause 2 to establish--and presumably also to waive--its own internal rules of procedure. Because this particular use of a special, self-executing rule does not entail the House and Senate voting on essentially different legislative questions, it should not be deemed a violation of Article I, Section 7, Clause 2.

Returning to the more problematic context of using a self-executing special rule to adopt more than one freestanding bill through a single floor vote, the fact that the Constitution's text does not squarely disallow a procedure does not, of course, definitively resolve the question of that procedure's constitutionality. The text of the Constitution does not prohibit appointing an infant to the Supreme Court or having a sitting U.S. Court of Appeals Judge concurrently serve as Director of the FBI. In other words, the absence of a textual prohibition represents the starting point of the argument, not the end. The U.S. legal system maintains a strong and well-defined constitutional common law, (96) and other sources of authority might support a compelling argument that a single floor vote can only have a single legislative effect. (97)

Outside the specific contexts of overriding a presidential veto and--arguably--ratifying a treaty, the Constitution does not seem to require that either house of Congress maintain a rule that limits a single floor vote to passing a single pending bill. Accordingly, either house of Congress could adopt rules that permit a single vote to advance multiple bills either to the other house or to the President without transgressing a specific textual limitation on the federal legislative process. If any limits on permitting a single floor vote to pass multiple independent bills exist, these limits must arise from either the legislative history of the Constitution or structural considerations, rather than from the constitutional text itself.

IV. THE FRAMERS, THE FEDERAL CONVENTION, AND THE PASSAGE OF BILLS

If the Constitution's text does not provide a clear answer to the question of whether the House may use a single floor vote to achieve multiple, legislative effects by a special self-executing rule, the legislative history of the Constitution might help to resolve the question. Moreover, the Supreme Court routinely has looked to the records of the Federal Convention and the ratification debate when determining the constitutional permissibility of a particular legislative innovation, such as the legislative veto (98) or a statutory presidential line item veto. (99) Constitutional silence when read against history, can yield a prohibition against a particular innovation in the federal legislative process when the legislative history of the Constitution supports recognition of an implied prohibition. (100) Unfortunately, the Framers did not devote much time or attention to the precise requirements of "passing" a bill in each house despite the question's central importance. Both the records of the Federal Convention and the Federalist Papers shed remarkably little light on this question.

The delegates in Philadelphia considered at length whether to vest the President alone with a veto power over legislation or, in the alternative, to vest the veto power in a "Council of Revision" that might include members of the President's cabinet as well as members of the federal judiciary, including Justices of the Supreme Court. (101) However, the delegates first had to decide a preliminary structural question: whether to have a unitary or plural executive. (102)

After considerable debate, the delegates voted in favor of vesting the whole executive power in a single national executive officer on June 4, 1787 by a margin of seven states to three. (103) Even if the executive branch was to be led by a single executive officer, however, the question remained whether to vest a "revisionary" power over bills passed by both houses of Congress in the chief executive officer, the federal courts, or a "Council of Revision."

The delegates expressed myriad views about the wisdom of a Council of Revision. "Mr. Gerry [of Massachusetts] doubt[ed] whether the Judiciary ought to form a part of it, as they [would] have [had] a sufficient check [against] encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality." (104) Along similar lines, delegate James Wilson, of Pennsylvania, argued that "[i]f the Legislative, [Executive], and Judiciary ought to be distinct [and] independent, The Executive ought to have an absolute negative." (105) Roger Sherman of the Connecticut delegation, on the other hand, "was [against] enabling any one man to stop the will of the whole." (106) And, Benjamin Franklin, in his capacity as a delegate from Pennsylvania, warned that "[t]he Executive will be always increasing here, as elsewhere, till it ends in a monarchy." (107)

The delegates ultimately postponed deciding whether to adopt a Council of Revision by a vote of six states to four. (108) The delegates soon thereafter voted against vesting the President with an absolute veto power, with no states in favor and ten against. (109) Immediately following this second vote, Pierce Butler of South Carolina moved, and Benjamin Franklin seconded, a motion that the veto power be amended to constitute a power solely to suspend the effectiveness of a new law. (110) This proposal was unanimously rejected. (111) The delegates subsequently adopted a resolution permitting both houses of Congress, by a two thirds vote, "to overrule the revisionary check" and also adopted a resolution "which gave the Executive alone without the Judiciary the revisionary controul on the laws." (112)

Undeterred by the convention's failure to embrace the concept of a Council of Revision, James Wilson, a delegate from Pennsylvania, seconded by James Madison, proposed a resolution that the veto power be vested in the President "[and] a convenient number of the National Judiciary." (113) But, Alexander Hamilton objected to consideration of the motion, and deliberation on the motion was postponed. (114)

On June 6, 1787, the delegates resumed consideration of Wilson's motion. (115) Madison, arguing in support of Wilson's motion, suggested that the joint exercise of the veto power by the President and members of the federal judiciary would lend needed structural support to the President and executive branch. (116) Debate was joined; for example, Rufus King, of Massachusetts, argued that "[i]f the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the Executive power." (117) Ultimately, "[o]n the question for joining the Judges to the Executive in the revisionary business," the vote was three states for to eight against adopting Wilson's proposed amendment. (118) This vote also implicitly rejected the concept of creating a Council of Revision to share the "revisionary power," or veto, with the President. (119)

Undaunted, Wilson, seconded by Madison, again tried to seek amendment of the veto power to include members of the federal judiciary on July 21, 1787. (120) Wilson argued that participation in a Council of Revision would involve exercise of a different power than that of constitutional review: "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." (121) He argued "Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature." (122) After another extended debate, Wilson's motion once again failed with a vote of three states in favor, four states against, and two state delegations divided. (123)

The convention delegates also debated the veto override power. The convention initially set the threshold for overriding a presidential veto at two-thirds, (124) then moved the margin to three-fourths, (125) and finally reset the margin at two-thirds toward the very end of the meeting. (126)

Madison also proposed that the veto power be exercised by the "Executive and Supreme Judiciary Departments" jointly. (127) Under Madison's proposal, a two-thirds majority of both houses of Congress could override a veto by either branch alone, but "if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law." (128) James Wilson seconded Madison's proposed amendment to the working document, but the proposal failed by a margin of three to eight. (129)

On the more specific question of permitting each house to establish their own rules of procedure, the language of Article I, Section 5, Clause 2 (130) appears in the draft document submitted to the delegates by the Committee of Detail. (131) This draft also contains the language that sets forth the requirements of bicameralism and presentment. (132) The subsequent debates, however, never focused on the scope of the power to set internal procedures, the requirement of "passage" in each house, or limits on the use of this power to creatively define "passage" in ways that undermine the bicameralism requirement. In fact, the legislative history of the Federal Convention is entirely silent on both these points. (133)

A significant debate arose on the question of whether to permit a single member of either house of Congress to require a formal recorded vote. (134) Gouverneur Morris of Pennsylvania, argued that "if the yeas and nays were proper at all[,] any individual ought to be authorized to call for them: and moved an amendment to that effect." (135) At that time, the draft from the Committee of Detail required that at least one-fifth of the members present seek a recorded vote by the yeas and nays--the requirement that ultimately found its way into Article I, Section 5, Clause 3. (136) Edmund Randolph of Virginia seconded Morris's motion and a general debate followed. Ultimately, the convention delegates rejected the proposal by a vote of three states to eight. (137)

This debate is significant: recall that a vote to override a presidential veto must be recorded by the "yeas and nays." (138) Yet many of the delegates expressed antipathy toward taking recorded votes. For example, Roger Sherman argued that he would: "rather strike out the yeas and nays altogether. [T]hey never have done any good, and have done much mischief. They are not proper as the reasons governing the voter never appear along with them." (139) Moreover, Oliver Ellsworth of Connecticut "was of the same opinion." (140) Delegate Nathaniel Ghorum of Massachusetts also objected to the use of recorded roll call votes in Congress because the practice resulted "in stuffing the journals with them on frivolous occasions" and had the effect of "misleading the people who never know the reasons determining the votes." (141) Morris's motion failed by acclamation. (142)

Despite this general antipathy toward the use of recorded floor votes, the delegates nevertheless adopted a text that requires a recorded floor vote when each house of Congress considers overriding a presidential veto. The logical implication is that the delegates believed that requiring a recorded vote in this context would enhance the political accountability of the members with respect to each individual member's decision to support or oppose the President's veto.

The Federalist Papers also do not shed much light on the question of whether a single floor vote in the House of Representatives may pass multiple, separate bills. Federalist No. 69, for example, notes that "[t]he President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law if, upon that reconsideration, it be approved by two thirds of both houses." (143) Federalist No. 69 also notes that "[t]he President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." (144)

Along similar lines, Federalist No. 73 notes that the Constitution "establishes a salutary check upon the legislative body [in the President's veto power], calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body." (145) Federalist No. 73 also defends the vesting of the veto in the President alone, rather than in a Council of Revision or jointly with members of the federal judiciary. (146) Like Federalist No. 69, however, Federalist No. 73 does not speak to the precise question of whether each house of Congress must conduct an identical vote to enact a bill.

In sum, the debates of the Federal Convention in Philadelphia and the Federalist Papers, simply do not speak to the question of whether Article I, Section 7 requires both houses of Congress not merely to adopt the same text, which will be presented to the President, but also to take identical votes. On the other hand, the debate regarding whether to allow a single member to demand a recorded floor vote, in lieu of a requirement that at least one-fifth of the members present seek a recorded vote, demonstrates that the delegates in Philadelphia feared that the ability to demand a recorded vote could easily be abused. Nevertheless, the delegates adopted a text that automatically mandates a recorded vote by yeas and nays for all veto override votes. Moreover, the debates reflect real concern about the ability of the President to defend the institutional prerogatives of the executive branch against incursions from the legislative branch; these concerns led Madison to support, repeatedly and unsuccessfully, a plan to vest the veto power jointly either in a Council of Revision or in both the executive and judicial branches. In the context of these debates, the record vote requirement for a veto override plainly reflects the Framers' concern about ensuring and securing political accountability for the members' votes to support, or oppose, the President's veto.
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Title Annotation:I. Introduction through IV. The Framers, the Federal Convention, and the Passage of Bills, p. 1071-1103
Author:Krotoszynski, Ronald J., Jr.
Publication:Washington University Law Review
Date:Jun 1, 2013
Words:9033
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