Writing today in the opinion page of The Wall Street Journal (full text here), former Tenth Circuit Court of Appeals Judge Michael McConnell argues that it would be unconstitutional for Democrats to utilize the "commonly used" tactic (the words of The Washington Post, not my own) of a self-executing rule to package a vote on the Senate's healthcare reform bill along side fixes to that bill. According to McConnell, such a move would violate Article I, Section 7 of the Constitution, which states that "in order for a 'Bill' to 'become a Law,' it 'shall have passed the House of Representatives and the Senate' and be 'presented to the President of the United States' for signature or veto."

Yale constitutional law professor Jack Balkin does a good job of slapping down this argument:

Despite Judge McConnell's concerns, which are textually well founded, there is a way that "deem and pass" could be done constitutionally. There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule. Under Article I, section 5 of the Constitution, the House can determine its own rules for passing legislation. There are plenty of precedents for passing legislation by reference through a special rule.

If that weren't sufficiently clear, not all that long ago, a group of Congressmen filed suit in federal district court to have declared invalid the Deficit Reduction Act of 2005, which, as a result of an error by a clerk, was not actually passed in the same form by both the House and Senate -- then under Republican control. Citing the 1892 Supreme Court decision in Marshall Field v. Clark, the federal district court for the Eastern District of Michigan threw out the Congressmen's challenge:

Each of the courts that have addressed the identical issue presented here have held that enrolled bill rule announced in Marshall Field still applies today. Thus a claim of unconstitutionality for violation of Article I, Section 7, is not legally cognizable where an enrolled bill has been signed by the presiding officers of the House and Senate as well as the President. [internal quotation marks omitted]

In layman's terms, the court held, following more than a century of Supreme Court precedent, that individual Members of Congress have no valid federal claim where a bill has been certified as passed by both the Speaker of the House and the President of the Senate, and then signed into law by the President of the United States. If a court upheld as law a bill not passed into law in the same form by both chambers of Congress, it's hard to see how a court would strike down a bill passed by the majority vote of both Houses.

And to add just one more wrinkle, it is unclear just who would have standing to bring a suit challenging healthcare reform legislation. In order for a law to be successfully challenged, a plaintiff must not only have a valid claim -- which, as discussed above, is far from apparent -- he also must have the judicially recognized capacity to sue. McConnell doesn't touch this issue, and it is unclear why. Courts have been loath to extend standing to minority lawmakers believing themselves to be aggrieved by the tactics of the majority, and the Democratic Congressmen who filed suit in the Conyers v. Bush decision discussed above were found to lack standing (in addition to be lacking on the merits). If challengers to the healthcare reform legislation could prove that they had a majority of either chamber on their side on the issue they might be deemed to have standing -- but considering that healthcare reform, if it does pass, will have garnered at least a 216-vote majority in the House and a 50+1 majority in the Senate, it's hard to see how they would have standing to sue. 

I am not an attorney and this should not be read as legal advice. But at least from my vantage, McConnell's argument appears to be hooey, and nothing more than another political argument to try to make it harder for the Democrats to pass meaningful healthcare reform.