Thursday, July 20, 2006

No Part of the Constitution is Safe

Rep. John Conyers is having to sue the Administration for signing a bill which passed only the Senate (via TalkLeft).

Article 1, Section 7

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Some parts of the Constitution are somewhat ambiguous or hard to understand. This isn't one of them. Two houses. Both have to vote on the same bill. Not different versions of a bill with the same name. The same bill, with all objections reconsidered and approved.

It seems the case was started (via Senior Journal) by an Alabama law attorney, Jim Zeigler, who filed suit in federal court.
The bill's troubles stem from provisions regarding Medicare payment for oxygen equipment used in the home. Up till now, Medicare has paid for the rental of such equipment as long as the patient needs it. But in the Senate version of the bill, which narrowly passed in December with Vice President Dick Cheney flying back from the Middle East to cast the deciding vote, payment for oxygen equipment was capped at 36 months. At the same time, the Senate bill capped payments for other equipment rented by Medicare beneficiaries, such as wheelchairs, at 13 months.

When the Senate sent the bill to the House, however, the 36-month limit for oxygen tanks was mysteriously inserted into the section of the bill dealing with the other equipment, so 36 months replaced 13 months – an estimated $2 billion error.

This was the version of the bill that passed the House by two votes. The Senate clerk then corrected the error and this version -- the version only the Senate had passed -- was apparently certified by House Speaker J. Dennis Hastert (R-IL) and Sen. Ted Stevens (R-AL), the president pro-tempore of the Senate, and sent to the President for his signature.

It's apparently not the first time two separate bills were passed, as there is a previous Supreme Court case
Zeigler said he is aware of an 1892 ruling by the Supreme Court, Field v. Clark, 143 U.S. 649 (1892), that may affect the outcome of his action. In that case, the Court ruled that once a bill is deposited in the public Archives, a court should not look behind the President's signature to question whether it in fact passed both houses.

The year 1892 was apparently a year of unimpeachable character, trust in authority, a wonderfully naive time without video and audio recorders.

First they point out the purpose of Article 1 Section 7
'the object of the whole clause is to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constitutents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy.'

Like writing up changes to thousand page bills which they insert 15 minutes before a vote.

Then the reason for ruling against the case
It is said that, under any other view, it becomes possible for the speaker of the house of representatives and the president of the senate to impose upon the people as a law a bill that was never passed by congress. But this possibility is too remote to be seriously considered in the present inquiry. 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, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution. Judicial action, based upon such a suggestion, is forbidden by the respect due to a co- ordinate branch of the government.

Imagine, a Republican controlled House, Senate, and Executive colluding to defeat an expression of the popular will in the mode prescribed by the constitution by screwing over House Democrats on a bill that barely managed to squeak through the first time. Unthinkable! 1892 was also apparently a time when co-ordinate branches of government actually respected each other.

Back to the Senior Journal article, which points out a crucial difference between the 1892 case and the Deficit Reduction Act:
A crucial question seems to be when the Republican leadership knew they had a problem with the bill. According to a Congressional Quarterly article cited in the blog Balkinization, the mistake apparently was discovered in mid-January, but was not then corrected because "no agreement could be reached between the House and Senate about how to resolve the difference from the Senate version other than passing a corrective measure after enacting the reconciliation bill."

"I know the speaker knew this was an invalid bill and still gave the go-ahead to send it to the President,'' Pelosi said. Her demand for an ethics investigation into the bill's passage was shelved on a party-line vote.

The 1892 case deals with an apparent inadvertent omission by a clerk recording in the journal, while the current case deals with the leaders of the House and Senate knowingly passing along a bill which wasn't approved by both houses because they probably wouldn't be able to get the votes needed to pass the bill they wanted. In other words, collusion with a common purpose to defeat an expression of the popular will in the mode prescribed by the constitution.

[ed: I fat-fingered some combination of keys which is apparently a keyboard shortcut for posting. If you've seen both posts, you may have preferred the first, shorter version. I don't blame you.]

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