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Deem and Pass

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. AF says:

    I don’t see the constitutional issue. Are you saying that Article I, Section 5, Clause 3 requires something more than recording whatever votes are actually cast? That it somehow requires recording votes on the REAL “question” before the House, not just the actual bill or resolution that is brought to a vote? That seems pretty far-fetched.

  2. Gerard Magliocca says:

    Well, I’m not saying that a court would buy this argument. But what is the point of that provision? To ensure accountability. Is deem and pass doing that? You could say yes on the theory that everybody knows that a vote to deem is a vote to pass. (In other words, nobody is being fooled.)

    The more I think about it, the more I think that the procedure is valid. But (as I may talk about in a post later) it could the substantive review of the individual mandate.

  3. David Adams says:

    The problem with your argument is that the same clause also says:

    “excepting such parts as may in their judgment require secrecy”

    Therefore, a majority of the House could vote that secrecy is required.

    However, that would likely subject such a vote to a filibuster. Since it is likely that there are not enough votes to brake a filibuster in the case of the Healthcare “deem and pass” it creates a very interesting situation.

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