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Spending Measure Not a Law, Suit Says
Senate, House Versions Are Different

By Jonathan Weisman
Washington Post Staff Writer
Wednesday, March 22, 2006

For anyone who took fifth-grade social studies or sang "I'm Just a Bill," how legislation turns to law always seemed pretty simple: The House passes a bill, the Senate passes the same bill, the president signs it.

"He signed ya, Bill -- now you're a law," shouts the cartoon lawmaker on "Schoolhouse Rock" as Bill acknowledges the cheers.

But last month, Washington threw all that old-fashioned civics stuff into a tizzy, when President Bush signed into law a bill that actually never passed the House. Bill -- in this case, a major budget-cutting measure that will affect millions of Americans -- became a law because it was "certified" by the leaders of the House and Senate.

After stewing for weeks, Public Citizen, a legislative watchdog group, sued yesterday to block the budget-cutting law, charging that Bush and Republican leaders of Congress flagrantly violated the Constitution when the president signed it into law knowing that the version that cleared the House was substantively different from the Senate's version.

The issue is bizarre, with even constitutional scholars saying they could not think of any precedent for the journey the budget bill took to becoming a law. Opponents of the budget law point to elementary-school civics lessons to make their case, while Republicans are evoking an obscure Supreme Court ruling from the 1890s to suggest a bill does not actually have to pass both chambers of Congress to become law.

"We believe that the law is constitutional and that this is yet another political attempt by the Democrats to stop us from cutting spending," said Ronald D. Bonjean Jr., a spokesman for Speaker J. Dennis Hastert (R-Ill.).

But liberal interest groups hoping to bring down the budget law have the backing of many legal scholars, who say that a $2 billion mistake cannot be ignored.

"The Deficit Reduction Omnibus Reconciliation Act of 2005 may be something, but it is not law within the meaning of the Constitution," said Jamin Raskin, an American University law professor.

No one disputes the central facts of the lawsuit: Last December, Vice President Cheney broke a tie vote in the Senate to win passage of a 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, among other changes.

Among those other changes was 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.

As the measure was being sent to the House last month, a Senate clerk inadvertently changed that 13-month restriction to 36 months, a $2 billion alteration. With the mistaken change, the measure squeaked through the House, 216 to 214.

Once the mistake was revealed, Republican leaders were loath to fight the battle again by having another vote, so White House officials simply deemed the Senate version to be the law.

"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."

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