Document Type

Working Paper

Publication Date

9-21-2013

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Political Science Network

Abstract

Since 1933 the US House of Representatives has maintained a procedure the selfexecuting rule that permits a single floor vote to pass multiple independent bills Using this procedure the House can pass a bill and at the same time "deem passed" entirely separate bills via a single floor vote Some legal scholars have argued that this procedure is constitutionally unobjectionable provided that members of the House clearly understand the legislative effects whether singular or plural of a particular vote Others however have argued that the device violates the Constitution because the House and Senate do not vote on same question Careful consideration of the relevant constitutional text and legislative history reveals that the question does not have an easy or obvious answer Perhaps surprisingly the Constitution does not speak with clarity on whether a single floor vote may pass multiple separate bills nor does the Constitution's legislative history provide any clear guidance on this question Instead the answer depends on whether one generally embraces formalism or functionalism in one's separation of powers analysis From a formalist perspective the House and Senate must not only adopt the same identical text but must also vote on the same question From a functionalist perspective however the precise procedure used to approve the text should not matter so long as both the House and Senate take political responsibility for adopting a particular statutory text Given the relatively weak reasons that undergird the House's use of the deem and pass procedure "” namely a desire to avoid political responsibility for unpopular legislation by rendering electoral accountability more difficult "” the formalist position has much to recommend it

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