Spending Measure Not a Law, Suit Says

"This is simple elementary-school civics," said Public Citizen lawyer Adina H. Rosenbaum, announcing that the group had filed suit in U.S. District Court to nullify the law. "The courts should declare void laws passed in an unconstitutional manner."

The suit has the sympathy of constitutional scholars.

"I think it's an open-and-shut case," agreed Michael J. Gerhardt, director of the Center on Law and Government at the University of North Carolina School of Law. "It would be a horrible precedent to set if this is how Congress is allowed to make laws."

For their part, congressional leaders and administration officials point to an 1892 Supreme Court decision, Field v. Clark , to argue that as long as the speaker of the House and the leader of the Senate certify a bill passed, it is passed. In that case, a bill signed by President Benjamin Harrison and authenticated by the leaders of the House and Senate was different from the version printed in the official journals of Congress, known now as the Congressional Record.

"Congress presented a bill certified by both chambers. It's been signed into law, and we consider the matter closed," said Scott Milburn, spokesman for the White House budget office.

In the 1892 case, the Supreme Court did not rule that the law really was a law but instead said the dispute was not a matter for the courts to decide, said Michael C. Dorf, a professor of constitutional law at Columbia University. The main problem for Public Citizen will not be showing that the budget law is technically not a law, but getting the courts involved, Dorf said, especially with a measure as sweeping as this one.

"An honest application of precedents would probably lead to the conclusion that the courts should strike this down," Dorf said. But, he added, "the courts will probably try to find a way to not throw the law out because it is so broad."

The issue would be solved if the House voted again, this time on the version that passed the Senate. But that would mark the third time House members would have to cast their votes on a politically difficult bill, containing cuts in many popular programs, and it would be that much closer to the November election.

But the issue may be snowballing. On Feb. 13, James Zeigler, a Republican lawyer in Alabama who specializes in elder-care issues, filed a similar suit, challenging the budget measure's constitutionality.

"The Constitution is broad and vague on a number of things; this is not one of them," Zeigler said. "The same bill must be passed by House and Senate and signed by the president. Otherwise it's not law. Case over."