Pelosi's Sunday House Health Care Non-Vote Will Not Survive Constitutional Challenge

The vote is scheduled for Sunday, when most people are not watching the news–I wonder why? This weekend, House Speaker Pelosi is going to try to end-run the Constitution to pass the largest piece of legislation ever enacted–multi-trillion dollar healthcare reform–without a vote. My friend and constitutional law and health care scholar Betsy McCaughey  has written two books on the Constitution. Betsy says the Pelosi gambit won’t survive a constitutional challenge in the Supreme Court. You can read Betsy McCaughey’s analysis by clicking here.

A number of House Democrats do not want to go on record as having voted for the controversial and unpopular health care bill so Pelosi has crafted a way they can vote for the bill on Sunday and tell voters they “never voted for the health care bill” in November. The tactic is called “deemed as”. Members vote on an innocent-sounding budget reconciliation bill that “deems as passed” the Senate bill (i.e., assumes the Senate Bill has already passed by the house even though it has most definitely not been passed by the house). Members then only have to vote on a series of reconciliation amendments. They then send both the Senate bill and the House reconciliation package to the President for signing.

Confused yet? Good. That was the purpose of the maneuver. They hope voters in November are to be confused too.

Betsy says the Pelosi tactic won’t suvive a constitutional challenge. ” In recent years, the U.S. Supreme Court has twice struck down attempts to abbreviate the lawmaking process required by Article 1, Section 7 of the U.S. Constitution.” In both cases the Supreme  Court ruled that neither the President nor Congress may can depart from “finely wrought procedure commanded by the Constitution to make a law.” The language of the Constution is black and white on this issue.

Article 1 of the Constitution states: “The votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the Journal of each House respectively.”

“The Senate health bill raises $500 billion in new taxes over the next decade.” writes McCaughey. “…if Pelosi has her way, these taxes will be “deemed” enacted without any house vote at all.”

When Ben Franklin was asked after the Constitutional Convention what kind of government the founding fathers had created, he answered “a republic…if you can keep it.” That’s the question on the table this weekend in the House of Representatives.

JR