Even before House vote on healthcare bill, legal challenges loom
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 鈥渄eem and pass鈥� 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 鈥減ass鈥� both houses.
鈥淭he Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote,鈥� Professor McConnell wrote recently in The Wall Street Journal. 鈥淭he 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.鈥�
Yale Law Prof. Jack Balkin disagrees with McConnell鈥檚 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 鈥� and perhaps even Supreme Court justices 鈥� are unlikely to second-guess the internal workings of the legislative process.
鈥淚f opponents of health care reform want to find a basis to attack the constitutionality of health care reform, challenging the use of 鈥榙eem and pass鈥� is a pretty good way to get thrown out of court,鈥� he wrote.
Legal fights possible over bill's substance, too
In addition to the 鈥渄eem and pass鈥� 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鈥檚 suit tracks McConnell鈥檚 position on the issue. 鈥淏ecause 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,鈥� the lawsuit says in part. Any signature by President Obama would be a nullity.
鈥淭he piece of paper he has stated that he will sign or has signed is nothing more than that: a piece of paper,鈥� 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 鈥渃ontaining its exact text鈥� with the Senate approving 鈥減recisely the same text.鈥�
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 鈥� and the voters 鈥� to apportion credit or blame for the healthcare reform effort.
