Legal Commentary

Mike McConnell seems to think that it might be. He offers an argument that the procedure might violate the requirement that both Houses of Congress vote on the same bill. Personally, I would have thought that the "enrolled bill" rule of Marshall Fields would have obviated any constitutional problem, but, given my enormous respect for Mike's analytical smarts, I'll give the question more thought.

Meanwhile, I am kicking myself that this debate is happening in March rather than January, when I covered the rules of congressional procedure in Administrative & Regulatory State. Back in January, I told my class that these apparently boring and incomprehensible rules were the life and soul of legislation. I told them that the Rules Committee could hold together their Party just so long as they were able to formulate substantive outcomes as procedural technicalities. Back then, I could tell that they were all bored and confused. If I had only given them the "deem and pass" procedure rather than House Rule House Rule XVI, clause 6 (on the "amendment tree," which is what I actually gave them), I bet that they would have been glued to C-Span trying to analyze the operation and policy merits of the rule.

Darn. Better luck next year.