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The Deficit Reduction Act of 2005 is supposed to save the U.S. Treasury $39 billion over the next five years. But the legitimacy of the controversial legislation — differing versions of which were passed by the House and Senate — may hinge on a rather innocuous $100 federal fee increase that takes effect April 9. At the same time, the White House, which signed the bill on Feb. 8 apparently knowing that the House and Senate had passed different versions of it, is reaching back to a 19th-century Supreme Court case to argue that the law is proper as it stands. “Congress presented a bill certified by both chambers,” said Office of Management and Budget spokesman Scott Milburn, invoking the standard set forth in the 1892 Supreme Court case Field v. Clark. “We consider the matter closed.” It’s an odd and perhaps unprecedented situation — one that many legal scholars say would be tough for the government to sustain if the law is challenged in court., which seems almost inevitable. After all, despite the holding in the Field case that once a bill is authenticated by both chambers, the courts should “act upon that assurance,” the fact remains that several subsequent — and potentially controlling — cases have stressed that bills only become law if they are passed in identical form by both chambers. The legislation also raised fees for filing lawsuits in federal court from $250 to $350. That has given the watchdog group Public Citizen an arguable injury and standing to challenge the deficit-reduction law. In its March 22 complaint before D.C. U.S. District Judge John Bates, Public Citizen seeks an order declaring the law unconstitutional. The Deficit Reduction Act did a lot more than raise federal courthouse filing fees. It found savings in everything from agriculture payments to digital-television transmission to changes in the student loan program, which by itself accounts for some $12 billion in savings. That means more potential plaintiffs may file suit challenging the law’s constitutionality. After all, notes the National Women’s Law Center‘s Joan Entmacher, once increased student loan payments take effect on July 1, borrowers will have a definable injury, as well. The measure also found a similar-sized chunk of savings, $11.2 billion worth, in Medicare and Medicaid health care programs, all of which meant that it was an exceedingly tough piece of legislation to pass. In the Senate, Vice President Dick Cheney was forced to cast the deciding ballot, while the margin of victory in the final House vote was a mere 216-214. That, of course, means that if the House had been forced to vote on the bill again so that it conformed absolutely with the Senate version, it might not have passed at all. Which in turn is what really explains the Bush administration’s decision not to demand another vote, argues Public Citizen’s Allison Zieve. “If it was a slam-dunk, they would have fixed the problem. But it was a very close vote and they didn’t know if they could do it again,” says Zieve, the lead attorney on the case. So a dubious legal rationale was called on to fix a difficult political problem. Says Zieve: “It’s somewhat offensive that they’d be trying to find ways to get away with fundamental violations, [rather] than abiding by the Constitution.” For its part, the White House referred questions on its legal reasoning to the Department of Justice, where the rationale for President George W. Bush’s decision to sign the bill on Field was presumably provided. The Justice Department, citing pending litigation, declined to comment. EQUIPMENT FAILURE It was deep in the fine print of the bill, down in Section 5101 — Beneficiary Ownership of Certain Durable Medical Equipment, and, in particular, the precise payment for “oxygen equipment (including portable oxygen equipment)” — that the trouble began. Medicare payments are as complex as the tax code, with certain items paid for over certain time periods and other expenses reimbursed indefinitely. Before the Feb. 8 passage of the Deficit Reduction Act, Medicare paid for the rental of items such as hospital beds, manual wheelchairs, and walkers for 15 months, at which point those using the equipment could opt to buy it, relieving Medicare of the monthly cost. Payments for oxygen, used chiefly by people with chronic lung disease and congestive heart failure, had never been capped; Medicaid paid for its use as long as it was needed, according to Cara Bachenheimer, who lobbies for Ohio-based Invacare Corp., the world’s biggest maker of respiratory and home medical equipment. But when the Deficit Reduction Act was in the House-Senate conference, the 15-month period was shortened to 13 months. Ways and Means Chairman Bill Thomas (R-Calif.) also inserted a provision to cap oxygen payments at 18 months. “It was stuck in by Mr. Thomas during an all-nighter seven days before Christmas,” says Bachenheimer. After strenuous lobbying by Ohio Republicans Rep. David Hobson and Sen. George Voinovich, the oxygen-payment provision was expanded to 36 months, a major win for Invacare. Unfortunately, it made for a confusing jumble for a Senate clerk, who inadvertently amended the 13-month payment period for wheelchairs and hospital beds to conform with the 36-month reimbursement period for oxygen. The House then voted for that version of the bill, while the Senate passed the version that put hospital beds and wheelchair payments at 13 months. But because both chambers certified their votes before the president signed the bill into law, the White House contends that the legislation is nonetheless the law of the land. LAND OF CONFUSION Already there are several challenges to the law working their way through the courts, as well as a resolution introduced last week by Rep. Henry Waxman, the ranking Democrat on the House Committee on Government Reform, asking the White House to explain its rationale for believing that the act signed by the president was constitutional. Jim Ziegler, an Alabama elder law attorney, says his practice has been “substantially hindered” because he doesn’t know whether to tell his Medicare clients to comply with the law or wait until it’s struck down. So he has filed suit in a federal courthouse in Alabama, naming himself as the plaintiff. And on March 20 the U.S. Court of Appeals for the 6th Circuit denied a request by the state of Michigan to dismiss a Medicaid lawsuit that will be rendered moot once the new deficit-reduction legislation takes effect. Not so fast, said the appeals court, in a nod to the law’s potential unconstitutionality: “The effect of the Deficit Reduction Act on this action remains uncertain.” Ziegler’s standing claim is arguably weaker than that of Public Citizen because his injury is less concrete. As for Public Citizen’s claim, which is based on being adversely affected by the increased filing fee, professor Charles Tiefer of the University of Baltimore Law School says the relatively small monetary size of the injury matters not one whit. “The difference between a few pennies and a million bucks is nothing; the difference between a few pennies and zero is a monster difference,” says Tiefer. “That’s standing.” The federal government has 60 days to respond to the Public Citizen suit. But if the administration intends to make Field v. Clark the cornerstone of its defense, it may have some problems, according to legal scholars. The Field case, says Tiefer, established the so-called enrolled bill doctrine, which means that courts won’t look behind the facts of a bill if the bill has been certified by the presiding officers of the House and Senate. But, says Tiefer, in this case the White House knew about the flaws in the bill. “And that could allow the Supreme Court to decide the case differently than Field v. Clark if the Court wanted to.” Indeed, argues University of North Carolina law professor Michael Gerhardt, Field v. Clark assumes Congress is acting in good faith and that any differences in a House and Senate bill are accidental. Otherwise, he says, “there would be a complete nonreviewable authority to bypass the Constitution,” something the Field case actually dismissed as a “possibility . . . too remote to be seriously considered in the present inquiry.” Moreover, adds Columbia University law professor Michael Dorf, the judiciary’s “political question” doctrine, which determines the extent to which the court will challenge the legislative branch, has changed significantly since Field. “The modern political doctrine question gives the courts more authority and permits them to look at more than Field v. Clark.” And there are several significant cases, in particular the 1982 case INS v. Chadha, which outlawed legislative vetos and explicitly reiterated the constitutional obligation that a law must be passed in identical form by both houses of Congress. “. . . [T]he prescription for legislative action. . . ,” wrote Chief Justice Warren Burger in his Chadha opinion, “represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”
T.R. Goldman can be contacted at [email protected].

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