Legal News

On Health Care Reform and the Constitution, Part IV

By Ashby Jones

Each iteration of the beleaguered health-care bill has, at least so far, triggered a flurry of op-eds over why something about it is unconstitutional.

The initial challenges mostly focused on whether Congress had the power to pass so sweeping a law. (Click here and here for LB posts on those takes.) Later, the eleventh-hour deal struck with Sen. Ben Nelson (D-NE) was deemed unconstitutional by others.

Well, it seems that critics are at it again, this time pointing to the procedural maneuver the Democrats might use to pass their health-care overhaul.

The move is called “deeming,” and, according to this story in Thursday’s WSJ by Jess Bravin, it means that lawmakers’ passage of one bill implies passage of another.

Here’s how it’s currently getting used, according to Bravin:

House members are weighing the health-care overhaul passed by the Senate on Christmas Eve along with a package of changes to it. The latter includes adjustments such as reducing the tax that would be levied on high-value health-insurance plans.

The House Rules Committee could create a rule that once the House approves the package of changes, the chamber would be “deemed” to have approved the main Senate bill as well. That could allow House Democrats to claim, with technical accuracy, that they never voted for the Senate bill and to avoid association with its unpopular provisions.

Bravin reports that both parties have used deeming “many times dating back to at least 1933.” But Republicans tell Bravin it would be unusual to use the maneuver for the health-care bill because of outsize significance. Still others challenge the maneuver’s constitutionality.

Stanford Law School’s Michael McConnell points to a line in the Constitution’s Article I saying “Every Bill shall have passed” both houses of Congress to become law. If the House passes the Senate bill and the package of changes in one set, while the Senate adopts each separately, then the two chambers can’t be said to have passed the same law, he said.

Other scholars disagree — emphasizing that the Constitution and Supreme Court give Congress broad leeway to determine how it does business and limit second-guessing by courts.

Still, courts haven’t confronted the deeming rule, said Ronald Rotunda, a law professor at Chapman University out in California’s OC. The claim that it is unconstitutional “is a reasonable one, and I wouldn’t be surprised if the court bought it,” he said.

Full post as published by Law Blog - WSJ.com on March 18, 2010 (boomark / email).