Not-A-Pundit: The Renaissance

WASHINGTON (AP)–Opponents of a major budget bill just signed by President George W. Bush are weighing a court challenge on the grounds that the measure is unconstitutional because it was amended after the House voted on it.

At issue is a provision involving the period of time the government pays to rent some types of durable medical equipment before medical suppliers transfer it to Medicare patients. The Senate voted for 13 months, as intended by Senate and House negotiators, but a Senate clerk erroneously put down 36 months in sending the bill back to the House for a final vote, and that’s what the House approved Feb. 1.

By the time the bill was shipped to Bush, the number was back to 13 months as passed by the Senate but not the House.

The issue is arcane and technical, but the broader constitutional question is very simple. As anyone who passed high school civics knows, a bill can only become a law if the House and Senate pass it in identical form. That didn’t happen in this case.

“That bill … is actually not a properly enacted law,” said Michael Gerhardt, a professor of constitutional law at the University of North Carolina School of Law. “It wouldn’t surprise me if a court struck it down. That bill was not approved by the House.”

“I don’t yet know exactly what happened and who is at fault, but it is clear that the legislation signed by the president on Wednesday is not what actually passed the House of Representatives on February 1,” said Rep. Charles Rangel, D-N.Y., the top Democrat on the House Ways and Means Committee.

Bush and his GOP allies on Capitol Hill consider the matter over.

But opponents of the bill are actively considering trying to get it struck down by the courts.

“There is a high probability that some legal action will be pursued,” said Brad Woodhouse, spokesman for the Emergency Campaign for America’s Priorities, a group of organizations opposing the budget bill, which contains $39 billion in cuts to Medicaid, Medicare, student loan subsidies and other programs. “Perhaps a temporary restraining order to stop the implementation and then broader legal action after that.”

Legal experts say any court challenge would be on firm legal ground.

“Each house has to pass the whole law and the same law,” said Alan Morrison, senior lecturer in law at Stanford University Law School. “This is a case where the Constitution is very clear.”