March 17, 2010
The Honorable Nancy Pelosi
Speaker of the United States House of Representatives
Office of the Speaker
H-232, U.S. Capitol
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