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Deficit Reduction Act Cutting Medicare, Medicaid is
Invalid says Public Citizen Suit
Version signed by Bush and passed by Senate is
different from House version
March 22, 2006 - The consumer watchdog group Public
Citizen has filed suit in federal court yesterday charging that the
Deficit Reduction Act of 2005 signed by President Bush on February 8 is
invalid because the president signed a version of the bill that was
passed by the U.S. Senate but not the U.S. House of Representatives. The
law decreases student loan, Medicare and Medicaid spending, extends welfare cuts
and cuts federal funding of state child-support enforcement programs.
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One of the most controversial provisions of the DRA
places severe new restrictions on the ability of the elderly to transfer
assets before qualifying for Medicaid coverage of nursing home care.
The measure barely passed both houses of Congress.
But the Constitution requires that before a bill can be enacted into law
by the president, it must pass both the House and Senate in identical
form. Due to a clerks substantive change as the legislation passed
between houses, the president signed legislation that was passed by the
Senate but not the House. (For more details by ElderLawAnswers.com -
click here.)
Last fall, the House and Senate passed different
versions of the DRA. To reconcile the differences between the two
versions, the legislation was sent to a House-Senate conference
committee. The bill was modified and the final conference version was
filed on Dec. 19.
On the same day, the House passed the conference
report. The Senate, however, rejected the conference report and on Dec.
21 passed an amended version of the bill. The Senate clerk sent it back
to the House for its concurrence.
But before transmitting it, the Senate clerk made a
substantive change to the bill by altering the duration of Medicare
payments for certain durable medical equipment such as hospital beds and
wheelchairs from 13 months, as passed by the Senate, to 36 months.
The House passed the version with the clerks
error. Bush then signed the legislation that was passed by the Senate
which did not contain the clerks error and not the version passed by
the House, which did.
The Bicameral Clause of the United States
Constitution states that every bill [must] have passed the House of
Representatives and the Senate before it becomes a law. Because the
president signed a bill that was passed only by the Senate, the act is
unconstitutional.
The lawsuit, filed in the U.S. District Court for
the District of Columbia, "simply requests the court to uphold the
Constitution, said Adina Rosenbaum, a Public Citizen attorney. The
entire law is invalid because the law the House passed is different from
the law the Senate passed and the president signed.
The Congress and the president have to be brought
to account for their rogue actions in moving to enact this very
controversial legislation without complying with the Constitution, said
Joan Claybrook, president of Public Citizen. This time, they will have
to answer for their actions.
Alabama ElderLawAnswers member attorney
Jim Zeigler earlier filed suit challenging the DRA's
constitutionality.
"I expect dozens of lawsuits against the DRA,
because its constitutional flaw is clear and obvious," Ziegler said in
response to the Public Citizen suit. "Millions of citizens and thousands
of businesses are adversely affected by the DRA."
Ziegler said he expects to soon see senior citizens
dependent on oxygen joining the suits as plaintiffs. "They are clearly
affected," he said. "Under the old law, they could receive Medicare
oxygen for life. Under the new law, they are literally cut off after 13
months."
In other actions, Rep. Henry A. Waxman (D-CA) has
requested in a letter to the White House a response to information that
the Speaker of the House called President Bush to alert him that the
version of the Deficit Reduction Act of 2005 (DRA) he was about to sign
differed from the version that passed the U.S. House of Representatives,
according to a report by ElderLawAnswers.com.
In his letter to White House Chief of Staff Andrew
Card, Waxman, who is the Ranking Minority Member of the Committee on
Government Reform, says he is writing "to learn what the President and
his staff knew about this constitutional defect at the time the
President signed the legislation. . . . I understand that a call was
made to the White House before the legislation was signed by the
President advising the White House of the differences between the bills
and seeking advice about how to proceed." Waxman goes on, If the
President signed the Reconciliation Act knowing its constitutional
infirmity, he would in effect be placing himself above the
Constitution. (Waxman's office declined to reveal to ElderLawAnswers
the source of Rep. Waxman's information.)
In an
earlier letter to House Speaker Nancy Pelosi (D-CA), Waxman asserted
that the DRA as enacted violates the Constitution.
Continuing efforts to achieve a legislative
solution to the controversy surrounding the DRA's enactment, three
Democrats on the
House Administration Committee sent a letter to Committee Chairman
Vernon Ehlers requesting an oversight hearing on the constitutional and
procedural problems with the measure.
Meanwhile,
John Dean, White House counsel during the Watergate era, says the
Republican leadership's handling of the DRA is "a prototypical example"
of how "GOP leaders are simply ignoring fundamental Constitutional
requirements." Dean devotes much of his regular FindLaw column to a
discussion of the DRA and the suit by Alabama ElderLawAnswers member
attorney
Jim Zeigler challenging its constitutionality.
Editor's Note: Portions of this story were
contributed by
ElderLawAnswers.com.
To read Waxman's letter, click on:
www.democrats.reform.house.gov/story.asp?ID=1022
To read the Dean column, click on:
writ.news.findlaw.com/dean/20060310.html
For more details on this subject by
ElderLawAnswers.com -
click here.)
To view the lawsuit, click
here.
Public Citizen Home Page
For more information about the Deficit Reduction
Act of 2005, click
here.
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