Even before House vote on healthcare bill, legal challenges loom

Opponents of the healthcare bill are poised to challenge it over the House's likely use of the 'deem and pass' rule, as well as on the substance of the legislation itself.

As congressional leaders and the White House push to attract the remaining votes needed to pass a healthcare reform measure this weekend, opponents are poised to take their fight to the courts, and potentially all the way to the US Supreme Court.

The mounting drama on Capitol Hill could extend far beyond the political, economic, and national policy implications of healthcare reform. It could set the stage for a major showdown over the meaning of a key constitutional provision.

The conservative Landmark Legal Foundation has already drafted a nine-page complaint set to be filed in US District Court in Washington within moments of passage of the measure. There will likely be others.

Republican lawmakers have pledged similar efforts to challenge the constitutionality of a legislative maneuver that would allow the House to adopt a Senate version of the bill without casting a specific vote on it. The so-called Slaughter rule, named for House Rules Committee Chair Louise Slaughter (D) of New York, is an attractive alternative for Democratic lawmakers who want to pass some version of healthcare reform but who worry about the potential political consequences.

A close look at 'deem and pass'

Legal analysts are divided over whether the so-called “deem and pass” rule violates the constitutional mandate that each house of Congress pass identical bills that are then forwarded to the president for his signature.

Former Appeals Court Judge and Stanford Law Prof. Michael McConnell says it violates the requirement in Article I Section 7 that a bill “pass” both houses.

“The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote,” Professor McConnell wrote recently in The Wall Street Journal. “The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form.”

Yale Law Prof. Jack Balkin disagrees with McConnell’s precise reading of the requirement. He has written on his popular blog that the House maneuver would satisfy constitutional requirements provided the House accepts the same text as the Senate bill as its own act.

The House has the ability to adopt its own rules, he says, and if the members decide to embrace a Senate bill as passed by the Senate, federal judges – and perhaps even Supreme Court justices – are unlikely to second-guess the internal workings of the legislative process.

“If opponents of health care reform want to find a basis to attack the constitutionality of health care reform, challenging the use of ‘deem and pass’ is a pretty good way to get thrown out of court,” he wrote.

Legal fights possible over bill's substance, too

In addition to the “deem and pass” rule, healthcare reform opponents have suggested they will challenge the constitutionality of several provisions in the bill. They argue that Congress lacks the power to order Americans to buy government-backed health insurance, and they say backroom deals offering special favors to Louisiana and Nebraska to gain the support of senators from those states raise constitutional questions.

But the more immediate legal fight would likely be over the deem and pass rule.

The Landmark Legal Foundation’s suit tracks McConnell’s position on the issue. “Because the House violated the Constitution by never voting on the Senate bill, the Senate bill cannot be and is not the law of the United States,” the lawsuit says in part. Any signature by President Obama would be a nullity.

“The piece of paper he has stated that he will sign or has signed is nothing more than that: a piece of paper,” the suit says.

The suit relies heavily on a 1998 US Supreme Court decision, Clinton v. City of New York, in which the court outlined the legislative process as requiring the House to pass a bill “containing its exact text” with the Senate approving “precisely the same text.”

One key test of the lawsuit, should it be filed, will be whether judges are willing to wade into the legislative and political thicket to address the issue. Or whether they would decide to leave it to Congress – and the voters – to apportion credit or blame for the healthcare reform effort.