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Archive for March 17th, 2010

Cuccinelli plans to sue if “deem and pass” is used to pass health care reform

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By: Ryan Nobles – bio | email

Virginia Attorney General Ken Cuccinelli sent a letter warning House Speaker Nancy Pelosi that the use of a little known legislative procedure could be unconstitutional. Cuccinelli sent a letter to the Speaker today, outlining his legal views of the procedure known as “deem and pass”.  The tactic, known officially as a “self-executing” rule, has been tossed about as one of several options that the House could use to get health care reform passed.

In his letter to the Speaker, Cuccinelli warns that if the House decides to use that tactic, instead of a traditional up or down vote, the passed legislation could be subject to a constitutional challenge.

“A bill of this magnitude should not be passed using this maneuver,” writes the Attorney General, in a short 5 paragraph letter.  ” As the President noted last week, the American people are entitled to an up or down vote.”

Cuccinelli cites a case-law example that he believes would render the move unconstitutional. He does not go as far as to say that he, on behalf of the people of Virginia would be willing to offer that challenge.

UPDATE: Cuccinelli spokesman Brian J. Gottstein confirmed for me that the Attorney General’s office will “definitely” file suit, if the reform measure passes via “deem and pass”

This is bound to be yet another, in a string of controversial moves, by the Attorney General.

The entire text of Cuccinelli’s letter can be found below:


The Honorable Nancy Pelosi
Speaker of the United States House of Representatives
Office of the Speaker
H-232, U.S. Capitol
Washington, D.C.

Dear Speaker Pelosi:

I am writing to urge you not to proceed with the Senate Patient Protection and Affordable Care Act under a so-called “deem and pass” rule because such a course of action would raise grave constitutional questions.

Based upon media interviews and statements which I have seen, you are considering this approach because it might somehow shield members of Congress from taking a recorded vote on an overwhelmingly unpopular Senate bill.  This is an improper purpose under the bicameralism requirements of Article I, Section 7 of the U.S. Constitution, one of the purposes of which is to make our representatives fully accountable for their votes.

Furthermore, to be validly enacted, the Senate bill would have to be accepted by the House in a form that is word-for-word identical (Clinton v. City of New York, 524 U.S. 417 (1998)).

Should you employ the deem and pass tactic, you expose any act which may pass to yet another constitutional challenge.

A bill of this magnitude should not be passed using this maneuver.  As the President noted last week, the American people are entitled to an up or down vote.


Kenneth T. Cuccinelli, II

Attorney General of Virginia
# # #


Written by Ryan Nobles

March 17, 2010 at 4:58 pm