The Return of Deem-and-Pass, and Related Matters

by Ramesh Ponnuru

Remember last March, during the run-up to the health-care vote, when Republicans were outraged at the possibility that House Democrats would vote to “deem” the Senate health-care bill to have passed rather than just voting for it? I never saw either the point of such a maneuver or the outrageousness of it. Anyone who voted to deem the bill passed would have been treated by everyone as having voted for the bill, and properly so. There would therefore have been no loss of accountability–which is why the maneuver was also pointless. Anyway, it appears that Republicans have their own version of deem-and-pass, which ought to embarrass them.

In the course of making this valid point, and also noting the insincerity of most partisan arguments about process, Jonathan Chait links to a criticism of Rep. Scott Garrett. The New Jersey Republican thinks that bills should not cite the “general welfare clause” or “necessary and proper” clause of the Constitution as the source of their authorization. Steve Benen writes in response: “Republicans want lawmakers to reference the Constitution to justify their legislation, but Scott Garrett wants to exclude the parts of the Constitution he doesn’t like.”

I think Garrett is right with respect to the necessary and proper clause, and it’s not because I dislike it. It’s because it doesn’t provide an independent source of congressional authority. The necessary-and-proper clause gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” So it’s entirely reasonable to suggest that a bill should cite which other portion of the Constitution the bill is necessary and proper to effectuate rather than simply citing the necessary-and-proper clause.