Pelosi Tactic for Health-Care Vote Would Raise Legal Questions
By Greg Stohr
March 18 (Bloomberg) -- House Speaker Nancy Pelosi may be creating new grounds for a court challenge to the proposed U.S. health-care overhaul as she considers using a mechanism that would avoid a vote on the full legislation.
Pelosi said this week she might use a parliamentary technique that would “deem” House members to have passed the Senate’s health-care plan by voting for a more politically palatable package of changes.
Some legal scholars question whether that approach can be squared with the Constitution and the Supreme Court’s 1998 declaration that the two houses of Congress must approve “precisely the same text” before a bill can become a law.
“Any process that does not result in the House taking of yays and nays on statutory text identical to what passed the Senate is constitutionally problematic,” said Jonathan Adler, a professor who runs the Center for Business Law & Regulation at Case Western Reserve University’s law school in Cleveland.
The greatest obstacle to any challenge may be getting a court to consider the issue. In 2007, a federal appeals court in Washington rejected a similar attack on a Republican-backed package of tax and spending cuts, which because of a clerk’s error had passed the House and Senate with different wording.
The three-judge panel said that, under an 1892 Supreme Court decision, courts can’t second-guess congressional leaders when they certify that both houses have passed the same legislative language.
“I don’t think courts would be too quick to declare such a move unconstitutional,” Adler said. More likely, judges would declare the matter a “nonjusticiable political question,” he said.
Several Options
Pelosi said this week that the so-called pass-and-deem approach was one of several options Democrats are considering to win passage of the measure, potentially the biggest health-care change in four decades. Americans would be required to get insurance, and insurers would have to accept all customers.
The House would have to approve the $875 billion bill passed by the Senate and clear a set of changes to that measure through a budget process called reconciliation. The pass-and- deem technique would consolidate those two steps, forcing lawmakers to take a stance only on the changes.
The changes are needed because House Democrats object to parts of the Senate bill.
“There are a lot of people who don’t want to vote for it,” Pelosi said this week. “We will do what is necessary to pass a health-care bill.”
Democrats are trying to pass a bill over the unanimous opposition of Republicans as polls show public opinion against the legislation. The Senate also would have to pass the reconciliation bill.
Organization to Sue
The Landmark Legal Foundation, a Leesburg, Virginia-based organization that supports limited government, will sue to stop the health-care plan if the House uses the procedure, Mark R. Levin, president of the group, said on its Web site.
Pelosi said that when Republicans were in power, they used the pass-and-deem approach “hundreds of times.”
Supreme Court precedents nonetheless raise questions about the practice. In a 1983 case, the court said the federal government’s legislative power could be exercised only “in accord with a single, finely wrought and exhaustively considered, procedure.”
In that case, a 7-2 court invalidated a law that let a single house of Congress vote to overrule the attorney general and force deportation of an alien.
‘Finely Wrought’
The high court reiterated the “finely wrought” language in the 1998 ruling, a 6-3 decision that struck down a congressionally enacted line-item veto, which would have let the president eliminate individual spending provisions.
As part of the ruling, Justice John Paul Stevens said the Constitution “explicitly requires” that the House and Senate approve the exact same text.
The deem-and-pass approach would pass the high court’s test, says Erwin Chemerinsky, dean of the University of California at Irvine School of Law.
“So long as the same language passes both the House and the Senate,” it satisfies the constitutional requirements, said Chemerinsky, who unsuccessfully challenged the budget law that was at issue in the 2007 appeals court decision. “How is a matter of rules, and those are left for each house to decide.”
Michael W. McConnell, a Stanford law professor and former federal appeals court judge, disagreed, writing this week in the Wall Street Journal that the approach is unconstitutional.
Whether any court would reach that conclusion is a closer call, McConnell said in an e-mail. He said the 2007 appeals court’s conclusion that judges should defer to lawmakers on the issue was in tension with an earlier Supreme Court ruling.
There are “conflicting lines of authority,” McConnell said.
No comments:
Post a Comment