The Broken Branch: An Unusual Lawsuit Takes Congress to Task For Shoddy and Partisan Lawmaking, In Which A Bill Is Unconstitutionally Being Treated as Law

By JOHN W. DEAN
Friday, Mar. 10, 2006

Two seasoned non-partisan Congress-watchers have teamed up (again) to report some bad news about Congress, assessing a decade of Republican rule. Thomas Mann, a senior fellow at the Brookings Institute, and Norman Ornstein, a resident scholar at the American Enterprise Institute, have written a new book, The Broken Branch: How Congress Is Failing America and How to Get it Back on Track.

While I am familiar with the prior work of Mann and Ornstein, which is always distinguished by its excellence, all that I know about their new book, to be published in June 2006, is the pre-publication description. According to the publisher (Oxford Press), this latest work reveals that after forty years of Democratic control, the House of Representatives was in need of reform. But that did not happen.

Republicans promised reform in 1994, when they won control of the House for the first time in four decades. But rather than deliver it, GOP leadership has - according to Mann and Ornstein - undermined the institution through "the demise of regular order, the decline of deliberation and the weakening of our system of checks and balances."

Speaker Dennis Hastert is described in the pre-publication material, based on his own words, as more of "a lieutenant of the president than a steward of the House." Accordingly, Mann and Ornstein's book suggests, "the legislative process has been bent to serve immediate presidential interests and have often resulted in poorly crafted and stealthily passed laws."

Mann and Ornstein could not be timelier. For shoddy and overly partisan lawmaking has become the norm in the House, and it is now creeping into the Senate. GOP leaders are simply ignoring fundamental Constitutional requirements.

A prototypical example is found in the handling of the Deficit Reduction Act of 2005 - S. 1932.

The $2 Billion Typo

After months of haggling, the Senate passed S. 1932, a law that would purportedly reduce the deficit. (In fact, it has failed to do so. That, however, is not the subject I wish to address.) The means the bill employed were grim: It placed much of the financial burden upon the elderly, the poor and the young, hacking away at benefits previously available under Medicare, Medicaid and student loan programs. No wonder that to pass this measure through the Senate required Vice President Dick Cheney to fly back from the Middle East to cast a tie-breaking vote. S. 1932 passed the Senate 51 to 50 just before Christmas 2005.

In one provision of the bill, the Senate voted that oxygen equipment used in the home was to be paid for by Medicare for only up to 36 months. (Previously, the law had sensibly paid these expenses as long as needed by the patient.) The Senate placed an even tighter cap of 13 months' payment for other durable equipment, like wheelchairs, for Medicare beneficiaries.

But when the Senate sent the bill back to the House, a Senate clerk mistakenly put the 36 months, from the vote on the oxygen provision, in place of the13- month cap for other equipment -- thus providing up to36 months' coverage for all such equipment. It was a $2 billion error.

On February 1, 2006, S. 1932 squeaked through the House - after heavy lobbying by Republican leaders - by a vote of 216 to 214. When this measure was returned to the Senate, however, the Senate clerk simply changed the provision that had been mistakenly sent to the House to reflect the Senate-passed version. That is, the clerk restored the Senate's 13 month cap for the other durable equipment, notwithstanding the fact the House had voted for a longer 36-month cap.

House Speaker Hastert and president pro tempore of the Senate Ted Stevens certified the Senate measure and sent it to the White House, where the President quickly signed it.

The $2 Billion Typo and Its "Correction" Are Revealed

When Democratic members of the House leaned that the Senate and Speaker Hastert had sent the President legislation that was substantially different that what the House had passed - different to the tune of $2 billion dollars -- they were understandably upset. They had already been shut out of the process: The entire legislative package of cuts had largely been agreed upon behind closed doors, without any Democrats present - now standard procedure in the GOP controlled Congress -- and the vote in the House had been taken after midnight, which is another ploy frequently relied upon by the GOP leaders. But this added injury to insult: The legislation that had gone to the President, was materially different from the legislation upon which they had voted!

When such mistakes occur, they are usually corrected with appropriate legislation. Often, this is done by unanimous consent of both the House and the Senate. But this time, House Democrats refused to roll over. They decided they would demand a record vote - the kind that, for good reason, frightens Republicans in an election year - and they wanted the vote to be taken on the entire bill, not merely on corrective legislation, because they believed that Republicans might not have a majority again for these harsh measures.

But that was not what happened. Instead, Senate GOP leaders simply changed the bill, and Speaker Hastert rolled over, on behalf of the House.

Was this constitutional? It's very doubtful. Will they get away with it? Very possible.

The Unconstitutionality Of This Slap Dash Procedures

California Democratic Congressman Henry Waxman solicited the views of a number of Constitutional experts on this very question. FindLaw's Michael Dorf advised the Congressman that "Article I, Section 7 of the Constitution specifies that a bill becomes a law when passed by both house of Congress and signed by the President. S. 1932 was not passed by the House of Representatives. Thus, it is not a law."

University of North Carolina School of Law professor Michael Gerhardt similarly said, "This legislation is question does not satisfy the requirements of the Bicameral Clause of the Constitution." And American University law professor Jamin Raskin reported, "The 'Deficit Reduction Omnibus Reconciliation Act of 2005' may be something but it is not law within the meaning of the Constitution."

George Washington University law professor Jonathan Turley noted, "Obviously, the Speaker cannot certify a different bill as the will of the House of Representatives. If he could do that, he cold become a House unto himself." And Georgetown University law professor David Vladeck told Congressman Waxman that these actions violated "one of the most fundamental guarantees in the Constitution."

Remarkably, the White House said nothing. The President has been prolific in attaching signing statements to legislation lately - for instance, to try to limit the effect of the McCain anti-torture amendment - but it seem the While House has little interest in signing statements (or vetoes) when they like the law, even if it was enacted contrary to the Constitution.

Testing Whether Congress Must Follow The Constitution

This is rather cavalier behavior for federal officials who demand "strict constructions" from federal judges. Many Republicans are offended by this activity, however, and one of them has decided to test the legality of this behavior.

Mobile, Alabama attorney Jim Zeigler has filed a lawsuit seeking a declaratory judgment that the Deficit Reduction Act of 2005 violates Article I, Section 7 of the Constitution. Zeigler, who served as a Bush delegate to the Republican National Conventions in 200 and 2004, has sued the Attorney General Alberto Gonzales and the Unites States Attorney for the Southern District of Alabama, where he filed his lawsuit.

Zeigler's complaint alleges that he represents senior citizens who seek coverage under the provisions of the law amended by the Deficit Reduction Act of 2005. But given the conspicuous failure of Congress to honor the Constitution, he alleges, he is "unable to counsel his clients" whether they should comply with the old law or the new law, which he believes to be unconstitutional.

No action has yet been taken on Zeigler's lawsuit. But if the court finds he has standing to bring the claim, he should prevail. The provision on which he suit depends is not a technicality, but rather, a linchpin of our constitutional system.

Some may claim that this is a political question, but such rhetoric ought not mislead the court; this constitutional provision is black-letter clear, and so is its violation here. Either both houses have passed on a given bill, or they have not. Passing on two different versions of the same bill is surely not enough.

The requirement of bicameralism is as crucial as it is simple. During the debates of the Constitutional Convention, the need for a bicameral (two-chamber) legislature was specifically addressed by James Wilson, who later to became a Justice of the U.S. Supreme Court, known for his scholarship. At the nation's founding, Wilson observed: "Despotism comes on mankind in different shapes. . . If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it."

In short, ignoring the Constitution's requirement that legislation pass if, and only if, it commands the votes of concurrent majorities of both houses of Congress is nothing short of GOP despotism. The broken branch needs fixing so we must all hope that the federal courts step in to halt what the President failed to put an end to: self-styled lawmaking outside the rules of the Constitution.


John W. Dean, a FindLaw columnist, is a former counsel to the president.