It’s perhaps the most jarring bit of irony in the entire health-care debate.  The House Rules committee is meeting as I write this post, attempting to put together the package that will govern the reconciliation bill to a floor vote sometime tomorrow.  As Byron York reports, though, the Democrats on the committee seem to have hit a problem with … the rules:

Here is the problem: The Senate has passed its HCR bill. If the House passes the same bill, it goes on to the president; once he signs it, the bill becomes law. But House Democrats, when they vote for the Senate bill using the “Deem & Pass” dodge, also want to simultaneously pass a package of amendments to the law. Except HCR will not, at that point, be law. It will only become law when the president signs it. Congress can amend the law — it does so all the time — but can it amend something that isn’t law?

Which is where Democrats are tripping up. Passage of their HCR proposal should be very simple: Senate passes it, House passes it, president signs it. But House Democrats are terrified of voting for the unpopular bill, so they hope to pass it by “Deem & Pass,” in which they will vote, not for the bill, but for a rule that both deems the Senate bill to have passed and, in the same vote, passes the package of amendments. So House Democrats will have two fig leaves: 1) they didn’t vote directly for the Senate bill, and 2) they voted to simultaneously amend — to “fix” — the Senate bill.

The problem is the sequence. Can the House vote to amend something that isn’t the law, as the Senate bill will not be law before the president’s signature? The Rules Committee meeting turned into mass confusion when Democratic Rep. Henry Waxman said, “We’re not going to ‘deem’ the bill passed. We’re going to pass the Senate bill…I would be against the idea of ‘deeming’ something — we either pass it or we don’t.”

To Republican ears, that sounded as if Waxman was speaking out in support of a direct vote on the Senate plan. “I hope we’re making news here,” said Republican Rep. Joe Barton. If so, Barton added, “Praise the Lord!” Other Democrats jumped in to say that no, there would not be a direct vote on the Senate bill.

The Waxman comment did make news, but as York notes, the other Democrats quickly squelched the idea of taking a separate vote.  However, the problem will be when this bill gets challenged in the courts, especially if the Senate reconciliation effort fails.  As Republican committee member Joe Barton pointed out, a failure of reconciliation in the Senate would mean that the bill would become law without ever getting an up-or-down vote in the House on the final version of the bill:

“I want everybody to understand that if, in fact, the decision is made by your leadership to pass this under what is called ‘self-executing’ or the ‘deem-and-pass,’ you’re not going to have a vote on a bill that passed the Senate Christmas Eve and came to the House.  And if the rule is passed, that bill will be ‘deemed passed’ even though there will be no vote and no debate on the substantive policy differences between the House and the Senate.

“I am told that on its own, the bill the Senate passed would not pass the House because there are not 216 in your conference to pass it. So we start off, if that’s the way you guys decide to do it, with deeming something passed that no one in the House really gets to debate or have an up-or-down vote on. And then we debate perfunctorily for an hour or maybe two hours, depending on how much time you’re going to give us, a reconciliation package where the only people that have really seen it in depth are those distinguished members of the Budget Committee.

“Since 1983, which is the year before I was elected, the Senate has only one time accepted a reconciliation package that came out of the House first. If the last 30 years are relevant, you’re probably not going to get the Senate to agree to the changes that have been made in the reconciliation. And if that happens, Madam Chairwoman, the president is going to sign a bill which the House never voted up or down and that makes revolutionary changes in the way our country’s health care system has heretofore functioned.”

Will any of this dissuade Democrats from using Demon Pass?  Most likely not, but it doesn’t make it any easier for this to pass muster in a court challenge.  As I wrote this week, the Marshall Field precedent makes that an uphill climb, but the more Democrats monkey with the process, the more they invite the courts to intervene afterward.

Tags: Democrats