Nancy Pelosi calls it "deem and pass," but the phrase sure sounds more like "Demon Pass." And the ‘sound' of what the Democrats propose is closer to the truth; our nation stands atop a mountain divide, and the populace waits to learn if we will continue our trek along a sun-drenched ridge, or if we will plunge headlong into a cold valley oppressed by fog and mist.
We stand at a Demon Pass. Which way will we go?
As Politico tells it:
"If I were advising somebody," on whether deem and pass would run into constitutional trouble, "I would say to them, ‘Don't do it,'" said Alan Morrison, a professor at the George Washington University Law School who has litigated similar issues before the Supreme Court on behalf of the watchdog organization Public Citizen. "What does ‘deem' mean? In class I always say it means ‘let's pretend.' 'Deems' means it's not true."
"To be sure," he continued, "each house has the power to make its own rules. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another." He cited the line-item veto as his primary precedent on the grounds that it disregarded the constitutional procedure for enacting laws.
Yale Law School professor Jack Balkin agreed that, under the precedents, "the House has to step up and take responsibility for passing the same text as appears in the Senate bill." But, he said, "if they do that, then the precise mechanism (two bills or use of a self-executing rule) isn't as important. One of the purposes of requiring passage of the same bill by both Houses of Congress is to prevent congressmen and senators from attempting to deny responsibility for the laws that they pass by sending the president different bills."
Scholars seem to agree that a small number of Supreme Court decisions may decide this issue, among them Clinton v. City of New York from 1998. If that is true, language from that case may apply:
Justice John Paul Stevens, writing for the court, defined the procedure in the line-item case as having three steps: approval of a bill by one house, approval of the "exact text" by the other house, and a presidential signature. "The constitution explicitly requires that each of those three steps be taken before a bill may ‘become a law,'" he wrote.
So, as a nation we stand atop Demon Pass; on one side lies the Constitution, and on the other.....