This Politico article provides a good overview of the possibility of a court challenge to healthcare reform legislation if it is enacted through the “Slaughter Solution.” The article notes that “[n]o lawyer interviewed by POLITICO thought the constitutionality of the ‘deem and pass’ approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.”
This is important, from a practical perspective, because it provides fair warning to the congressional leadership of what may happen should the “Slaughter Solution” be employed. The takeaway, even from lawyers on the left side of the political spectrum, is that the constitutional issues involved need to be taken seriously by the leadership, and that it is inadvisable to use this procedure if it can be avoided. As Alan Morrison puts it, “’If I were advising somebody,’ on whether deem and pass would run into constitutional trouble, ‘I would say to them, ‘Don’t do it.’”
Whether or not this persuades the House to use more traditional means of passing healthcare reform remains to be seen. If it persists in using the “Slaughter Solution,” the leadership will have only itself to blame for any resulting court challenge.