11 Congressmen Sue Bush

Ok this is good. You thought Bush was ignoring the Constitution on things like domestic spying, investigating leaks, cooperating with congressional probes, or lying about going to war, well here's another one for the list. The issue is the Deficit Reduction Omnibus Reconciliation Act of 2005, which even though Bush signed it, might not be law.

It started in December, when "Vice President Cheney broke a tie vote in the Senate to win passage of a [budget] bill that would cut nearly $40 billion over five years by reducing Medicaid rolls, raising work requirements for welfare, and trimming the student loan program" It included "a provision to restrict Medicare payments for durable medical equipment, such as wheelchairs and oxygen tanks. Under the Senate bill, government-funded leases for such equipment could last only 13 months." It then went to the House in February but on the way "a Senate clerk inadvertently changed that 13-month restriction to 36 months. In this form it passed the House, 216 to 214. Not a single Democrat voted for the bill.

University of California law professor Vikram David Amar (and former clerk to Justice Harry Blackmun) describes what happened next: "Rather than fix the mistake and have the House revote -- this time on a bill substantively identical to the Senate's -- which has been the protocol in past such situations, House and Senate leaders apparently decided simply to physically alter the already-voted upon House version to bring it in line with the Senate's rendition. The Speaker of the House and the President Pro Tempore of the Senate then certified to President Bush that this version, containing the 13-month provision, had passed both houses. President Bush, after having been made aware of the debacle, nonetheless signed the measure."

So here's the dilemma, some of the House members are upset that what became law isn't what the House approved. While the bill is only different by two numbers, 13 vs 36, it's a $2 billion difference! That's not the way it's supposed to work. However, how do you fix this? Who do you complain to? Well since the President and leaders of Congress are involved it seems like you'd bring it to the courts to resolve, but there are a few problems with that.

To go to court you have to show real damages, not hypothetical ones, this is calle "dhaving standing". Jim Zeigler, a lawyer from Alabama filed suit in federal district court saying this law was not valid. Amar goes into it in detail but suffice to say, he didn't have a good case.

Rep John Conyers (D-MI) has found a group harmed by the whole bill, the members of the House. He and 10 other representatives are suing Bush and members of his cabinet and other federal officers on the grounds that they were denied their Constitutional right to vote on laws and that a bill not passed by both houses is not a law. The suit was filed Friday in US District Court in Detroit.

But wait, there's more. It turns out there was a Supreme Court case in 1892 calledField v. Clark. In that case, there was a difference between a bill passed by both houses of Congress and what the President signed. Plaintiffs wanted the court to exam the constitutionally mandated Congressional Journals to see if there was a difference. The court said no. Really! They gave two reasons. First, that the Journals weren't always accurate. Second, they said having the court checking the journal would basically be rude.

"The signing by the speaker of the house of representatives, and by the president of the senate...of an enrolled bill, is an official attestation...of such bill as one that has passed congress...when a bill, thus attested, receives [the president's] approval, and is deposited in the public archives, its authentication as a bill that has passed congress should be deemed complete and unimpeachable...The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept...all bills authenticated in the manner stated." So out of respect, the courts can't question actions, only if the resulting law is constitutional. "It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties...Judicial action, based upon such a suggestion, is forbidden by the respect due to a co-ordinate branch of the government."

That all sounds ridiculous to me, but that's what the decision said. Amar describes various ways the court might back away from Field v. Clark.

So that's the issue. Is it merely Democrats finding a way to whine about the Republicans? $2 billion seems like a significant amount, but moreso, forcing another vote could defeat the whole bill. The real problem here seems to be the leaders of the House and Senate who certified the bills were the same when they knew they weren't. It might have been a typo, but they certainly weren't the same. And while that's not Bush, you know he must have known.