Nancy Pelosi says "deem and pass" is her preferred strategy for pushing health care reform through. And she is apparently surprised by the ferocious reaction. The self-executing rule is not an unusual, esoteric technique, she notes. There was no such ferocity before. It has been used countless times. Its constitutionality is not in question. So what's the problem?
Let me explain.
So far as the legality or regularity of the procedure is concerned, Pelosi is correct. Reconciliation does raise a substantive issue: whether the Senate filibuster serves a rightful quasi-constitutional purpose. But if you accept that use of reconciliation is justified in the present case, as I do, "deem and pass" raises no further issue of that sort--because it is procedurally identical to the House passing the Senate bill and a reconciliation sidecar along with it.
My test of "procedurally identical" is simple. Suppose the House passes Pelosi's rule, and then the Senate fails to pass the reconciliation alterations to its own measure. Would the unamended Senate bill, assuming the president signs the right paper, then become law? According to what I am told, the answer is yes. "Deem and pass" has exactly the same legislative function for the House as passing the Senate bill and separately passing the reconciliation changes.
