For fence-sitting Dems, the rule permitting the health-care bill to be “deemed” passed by a vote on reconciliation seems aptly named. Nancy Pelosi seems hell-bent on leading her little lambs to the slaughter. Regarding Andy’s point that the rule would likely withstand a constitutional challenge in court despite its apparent conflict with the textual requirement of bicameralism and presentment, Andy is correct. The Supreme Court, since an 1892 decision in Marshall Field & Co. v. Clark, has refused to look behind the signature of the speaker of the house and president of the Senate (or president pro tempore) on an enrolled bill to challenge the process by which that bill was enrolled and a claim that the bill was not properly enacted. There was a bit of daylight opened in a more recent decision in which the Court examined whether a properly enrolled bill was nevertheless enacted in violation of the Origination Clause (which requires that bills that raise revenue originate in the House), but lower courts (such as the D.C. Circuit in the recent challenge to the Deficit Reduction Act linked by Andy) have reasoned that the enrolled bill rule itself wasn’t affected by that later decision.
The end result is that however clear a constitutional violation may be presented by the Slaughter rule — and I think former judge, now–Stanford Law professor Mike McConnell is correct that it’s pretty clear here — there is a significant impediment to challenging that violation in federal court. And don’t look for help on this one from conservative justices — Justice Scalia would have applied the rule even in the Origination Clause context.
But having said all of that, the utter disregard of constitutional requirements with respect to such a hot-button and highly contested bill will have its political price. Although Pelosi will assure her members that the vote is “deemed” and not “actual,” the effect of the vote on reconciliation will be passage of the Senate bill — and without any guarantee that reconciliation actually happens. So in voting for Bill B (reconciliation), the House will have passed Bill A (the original Senate bill) and readied it for presentment to the president, with Senate action still required (and uncertain) on the former. If members are gullible enough to think they can distance themselves from the net result, then we deserve the Congress we elected. I suspect this is harder than Pelosi thought because members can see through the ruse. Why, then, employ the Slaughter rule, when the political price of a “yes” vote may be even higher than the use of normal legislative processes because of the perceived heightened gaming of the system? You’d have to ask Pelosi that question.