So the damage to the country is from over-zealous "scrutiny" of an ugly process (and false accusations that what's going on is "ramming through" a bill using unconstitutional processes)--not from using existing rules that have been used a great many times in just the same way.
I'm pretty sure this is the same way the self executing rule has been used in the past. Otherwise, I don't see why it would be used at all, and I've shown that it has been used many times even on large, important and controversial bills, so it's not just used as a time saving device. I think the situations it has been used in the past were very similar--you had some bill passed in the Senate that the House wanted to pass but not without changes or it was political inexpedient for House members to be on record as voting directly for the bill without the changes.
Basically you vote for one thing, and included in that thing are magic words that has the effect of passing the other thing. Both things are passed by vote. The only thing you can say is that there wasn't a separate vote on the other thing. But they are two things, so no one is splitting a single thing into two things after both things have passed by vote.
At any rate, it doesn't seem like they're going to need to go that route now.
I think you don't quite have the deem and pass thing straight. The way it has worked in the past is that an un-voted-on amendment gets put into a bill through the same vote that passes the bill. The
whole thing then goes either to the President or to the Senate, depending on whether the Senate's version of the bill (1) has been passed, and (2) contains the same amendment. The result of the deem and pass vote has always been a single bill. This time, they want to send half of it to the President and half to the Senate (because only half of it has passed the Senate). You can't do that with a single bill, so the claim will be that it is two separate bills. If true, then this would be unprecedented.
That would raise serious questions about whether the majority of the House approved the Senate Bill
unconditionally and without amendment. If they use the deem and pass method, there would be a real question as to whether a majority really would have voted just for the Senate Bill. If they deem and pass, they still must say that they approved the Senate bill word for word, and that would be suspect.
Now, would the Court get involved? Well, if they decide the question is a Constitutional one rather than strictly a question of House procedure, they might. See
United States v. Munoz-Flores (1990), footnote 4, which says:
Justice SCALIA apparently would revisit Powell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Field v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence†the Court would consider in determining whether a bill had actually passed Congress. Id. at 670. Appellants had argued that the constitutional clause providing that “each house shall keep a journal of its proceedings†implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. 1, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id. at 143 U. S. 670–671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments†demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id. at 143 U. S. 672. Where, as here, a constitutional provision is implicated, Field does not apply."
In
United States v. Ballin, decided later in the same term as
Field, the Supreme Court considered the question of whether a bill had passed with a proper quorum that was properly recorded. The Court relied on the house journal to answer that question, but what is most significant for the Health Care situation is
that it decided the question. In this case, would looking at the House journal yield any evidence that the Senate bill was ever voted on at all? I'm not sure exactly what goes into the Journal, but it might not.
The
Public Citizen case that's being talked about was a case of a clerical error resulting in the House passing a bill that said "36 months" in some clause when the bill the Senate passed had been amended to say "13 months." It was clear from the recorded debates in the House that they intended to pass the "13 months" language. This case is different, because the House's intent would be purposely ambiguous, in order to give House members plausible deniability if things goes south in the Senate.
At any rate, the upshot is that those who say it would be unconstitutional are not making "false accusations." In fact, they may well be right. Whether they are right and whether the Court would intervene are two different questions, but both could be predicted in the affirmative in good faith and without being ridiculous.
