The Deficit Reduction Act? What Deficit Reduction Act?
By DOROTHY SAMUELS
Published: July 8, 2006
Perhaps I shouldn't take these things personally, but reading over new legal filings by the Justice Department in an unusual, and unusually important, federal lawsuit challenging the validity of the phony Deficit Reduction Act that President Bush signed in February, it suddenly struck me: could it really be that everything I learned back in junior high school about the basic workings of American government was wrong?
Maybe not everything. But the Justice Department's reasoning for why the suit should be dismissed sharply conflicts with my understanding — and most Americans' understanding — of what it takes for a bill to become law. If that reasoning prevails, it will be very bad for democracy.
Brought by Public Citizen, and set to be heard on Monday, the case I'm referring to is one of a handful of pending suits seeking to block the law's unfair cuts in student loans, Medicaid and Medicare. It bases its argument on the most elemental constitutional violation imaginable: although the measure was signed by the president and approved by the Senate, it was never approved in the same form by the House.
This travesty began last December with an inadvertent clerical error after the Senate approved the bill by the narrowest of margins, with Vice President Dick Cheney breaking a tie. Owing to that accidental change, the version that passed the House by a mere two votes differed from the Senate measure. A provision on Medicare calls for covering the rental of certain medical equipment, like wheelchairs, for 36 months, instead of the 13 months in the Senate version. Although that may sound like a minor deviation, it adds up to a $2 billion difference.
Made aware of the discrepancy, House Speaker Dennis Hastert and Senate Majority Leader Bill Frist apparently made a command decision not to try to fix it by having their chambers vote again, this time on the same measure. Given the closeness of the first votes, after all, there was no guarantee a rerun would end in passage. Besides, rank-and-file Republicans weren't exactly pounding on their leaders' doors to demand another chance to go on record in favor of deep spending cuts in popular programs benefiting the needy.
Instead, the leaders barged ahead. Mr. Hastert signed a statement with the president pro tempore of the Senate attesting that the act had been approved in identical form by both chambers when everyone knew that hadn't happened. As for President Bush, his hands are hardly clean. He was well aware of the constitutional defect but chose to ignore it and sign the bill anyway — a dismaying reminder that the president's instinct to cut constitutional corners isn't limited to the war on terror.
In briefs filed last week, the Justice Department does not dispute this rendition of what happened, or the constitutional rule against transmitting one-house bills to the president's desk. Instead it contends that a musty 1892 Supreme Court ruling requires courts to accept as fact Mr. Hastert's fictional certification that both chambers passed the same bill. In other words, to enact large budget cuts affecting millions of Americans, the House and Senate needn't bother to go through the tedious and politically fraught exercise of passing the same legislation. It suffices for leaders of each chamber to fudge and say it happened.
Obviously, the government lawyers making these claims never took a class with my eighth-grade social studies teacher, Mr. Pagliaro. He told students it takes an approving vote of both the House and Senate for a bill to be enacted, and he cited what still seems to be pretty reliable authority: it says so in the Constitution.