Can the House “deem” a bill into law?
posted at 1:00 pm on April 2, 2011 by Ed Morrissey
Republicans screeched when Louise Slaughter attempted to push a “deem and pass” strategy for ObamaCare a little over a year ago, arguing that the notion of deeming the bill as passed in the House without a direct floor vote was an affront to democracy and the Constitution. Democrats agreed — in 2003, when Republicans tried the same thing on a tax-credit measure. In the end, Democrats abandoned “deem and pass” as a strategy after less than a week and held a floor vote on ObamaCare instead, which passed.
Republicans swore to restore Constitutional processes if returned to the majority in the House. They’re not off to a great start. They have revived deem and pass, with a twist — instead of claiming that a bill has passed, the GOP voted that a House bill would be deemed as effective law if the Senate failed to act (via David Brauer):
The House narrowly passed legislation on Friday that calls for a House-passed FY 2011 spending bill to become law should the Senate fail to approve a spending bill by April 6. It would also prevent members of Congress from being paid during a government shutdown.
The bill, H.R. 1255, was approved over bitter Democratic opposition in a 221-202 vote in which no Democrats supported it, and 15 Republicans opposed it.
Several Democrats argued that the measure is unconstitutional, charging that it would “deem” that the 2011 spending bill, H.R. 1, has the force of law if the Senate fails to act. Some Democrats seized on the floor comments from Rep. Louie Gohmert (R-Texas), who broke with his party and said on the floor that this aspect of the bill “violates my conscious and the Constitution, and I cannot vote for it.”
Gohmert’s right. The process of making law under the Constitution isn’t exactly a secret. Article I, Section 7 clearly states in unequivocal language that bills do not have the force of law until either a President signs a bill passed in both chambers, or both chambers override a Presidential veto by two-thirds majorities in both chambers, emphases mine:
Section 7 – Revenue Bills, Legislative Process, Presidential Veto
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases 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. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
In other words, a House bill has no legal effect whatsoever, unless the Senate also passes it. A lack of action by the Senate does not allow the House to declare that a bill has suddenly acquired the status of law. For a party that promised that every bill under its majority would have attached to it an avowal of constitutionality, this is an egregious mistake.
Still, there’s no small amount of irony in hearing Nancy “you have to pass the bill to find out what’s in it” Pelosi and former deem-and-pass defender Steny Hoyer complain about this new twist on the old racket:
“What you see on the floor today is no example of Democracy in action,” House Minority Leader Nancy Pelosi (D-Calif.) said. “It’s silly. The Republican leadership is asking its members to make a silly vote.”
“April Fools, America,” House Minority Whip Steny Hoyer (D-Md.) said. “This is a joke, America. This is not real, America.”
No, it’s not real at all. Republicans need to stop the foolishness and act in accordance with the Constitution.
Update: Here’s the roll call vote.