Thursday, March 23, 2006

How a Bill Becomes a Law

We all remember civics/government classes or lessons, whether they were in 5th, 8th, 12th grade, or all of the above. There was always, or should have been, that cartoon about “How a Bill Becomes a Law” and well if you took advanced versions there was a nice little pamphlet produced by some group that tried to put it all in writing. Basically the message was simple, both the House and the Senate have to pass IDENTICAL versions of the same bill then send it to the President for his signature. Sounds simple, right, if a 5th grader can understand that you would think Members of Congress could as well. Well let’s not be too optimistic here sports fans. It seems that Congress doesn’t always do things correctly, and this time they may have been caught with their hands in the cookie jar. I’ve tried to keep this short, but well I still need the Read More button after all.

Here is the background: While Congress was considering the Deficit Reduction Omnibus Reconciliation Act of 2005, there was a minute but extraordinarily significant clerical mistake that resulted in the two chambers passing slightly different versions of the same bill. This bill has a complex history, but I’ll try and summarize it in a couple of sentences. First, dramatically different versions passed both the House and Senate separately, resulting in a conference committee. The conference committee reconciled the two bills and produced its final version. The House adopted the conference report by a 6 vote margin at the end of December 2005. The Senate, however, did not pass the conference bill. Invoking arcane provisions in the Senate rules (known as the “Byrd Rule”), they required 3 sections to be stripped from a normally non-amendable conference bill. Thus, the Senate approved its “amended” conference bill and sent it back to the House, who had recessed until January 31, 2006. The error, it seems, occurred after the Senate vote, when a Senate clerk changed a provision relating to a Medicare reimbursement period for the rental of a certain kind of medical equipment from 13 months to 36 months before sending the bill to the House. After the House reconvened, they voted on the Senate version, which passed albeit by only a 2 vote margin as several moderate GOP members changed their minds after being home for 3 weeks and hearing it from angry constituents. After the House voted, apparently the clerk then changed the reimbursement period back to 13 months before it was sent to the President for his signature. President Bush signed the measure into law on Feb. 8. According to several sources including the Congressional Budget Office, this seemingly minor change may cost the Treasury a whopping $2 billion over the next five years.

To further complicate matters, according to Marty Lederman, of the excellent law blog Balkanization, the House did not vote directly on the Senate amended reconciliation bill. Rather, it voted on a House Resolution, H. Res. 653, which reads, in its entirety: “Resolved, That the House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1932) to provide for reconciliation pursuant to section 202(a) of the concurrent resolution on the budget for fiscal year 2006" See H. Con. Res. 95, 108th Cong. (2d Sess. 2006). This development both in Marty’s mind and mine as well, raises the question of what was actually before the House when it voted. If one can argue that all that was before the House was a resolution agreeing to whatever the Senate did, than it seems one could argue that identical versions were passed as the Senate clerk corrected the error before sending the bill to the President. If on the other hand, what was before the House was the House conference report containing the error and no one was aware of that fact, than you might have a strong argument to suggest that the House passed a bill with a 36 month provision, while the Senate adopted a non-identical version with only a 13 month provision.

Ah, but this is not the end of the story. The Constitution’s “Presentment Clause,” Article 1, section 7, cl. 3, which we all learned in civics, requires that both the House and Senate must pass a bill, the identical bill in both Houses, and that it must be presented to the President for his action. Now, as previously mentioned there is some doubt that each House passed bills with this minuscule but enormously significant different figure in it. So the bills that passed arguably were not identical. Thus, the presentation clause is potentially violated, and the bill that the President is signed is invalid; right? Well, there is a kicker, Supreme Court precedent, which as one would expect is not entirely clear. There is an old case, Field v. Clark, 143 U.S. 649 (1893), which promulgated what is known as the “enrolled bill” doctrine. In Field the text of a bill signed by the President was different from the text as it appeared in the then Congressional Journal (now the Congressional Record). According the Court, they could not, in fact, would not, look behind the certifications of the presiding officers to ascertain whether the bill signed was indeed the bill passed. If this precedent holds, it would seem that the Court will not look at the actual bills before each House. This precedent was cited favorably by Justice Brennan in Baker v. Carr as part of the “political question doctrine,” which allows federal courts to abstain from deciding certain kinds of cases, even when a valid case or controversy is before it. Subsequent, more recent cases, however, have held something a bit different, albeit never expressly overruling Field v. Clark. For example, in United States v. Munoz-Flores, 495 U.S. 385 (1990), the Court refused to rely on the “enrolled bill” rule and instead looked to see whether the bill at issue, which arguably was a revenue generating measure, originated in the House, as it was required to do under the Origination Clause, rather than the Senate. See Art. I, sec. 7 cl. 1 (stating that, “All Bills for Raising Revenue shall Originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”) So which case approach applies? The answer is we don’t really know. The Court might strictly apply the Constitution and do what the plain meaning of the Constitution requires. That said, however, there is precedent for the Court flinching especially when something is really politically important, such as this budget cutting bill, and the flaw is arguably small and really inadvertent. See United States v. Ptasynski, 462 U.S. 74 (1983) (dealing with the uniformity clause with respect to taxation).

What will happen to this "law?" No idea, there are two cases challenging it's constitutionality that are currently pending. Only one, however, Public Citizen v. Clerk, U. S. District Court, appears to have a legitimate chance of moving forward. Public Citizen is being a bit creative here (basically in order to get standing they have to be). In essence, they are challenging the law not basedon the Medicare provision that caused the problem, but rather on a different provision. Public Citizen's challenge is based on a provision that raised federal court filing fees from $250 to $350 per case. Public Citizen, who files a lot of federal cases, argues that this change adversely affects them, and since there is a question about the bill's constitutionality their claim should be reviewed. I can only assure you this will be interesting to watch.


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