Just-passed budget bill could be challenged in court

WASHINGTON (AP) -- Opponents of a major budget bill just signed by President 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."

Morrison was the lead attorney in the case to overturn the 1996 line item veto law, which was decided on the same elementary constitutional concept: that a law must pass the House and Senate in the same form and once signed by the president can only be changed by another law approved by all three parties.

The budget bill was one of the main accomplishments of Congress last year, as Republicans managed for the first time in eight years to take on the growth of federal benefit programs.

The measure blends modest cuts to Medicaid, Medicare and student loan subsidies with a renewal of the 1996 welfare reform bill and $10 billion in new revenues from auctioning television airwaves to wireless companies. There's also $1 billion in new spending to extend an income subsidy program for dairy farmers and a reprieve for physicians who had faced a 4 percent cut in Medicare fees.

Morrison said courts would take a dim view of the idea that it is OK for the Speaker of the House -- who along with the Senate's President Pro Tempore signed the official copies of bills sent to the president -- to endorse a bill that's different from what the House voted on. That could set a precedent that could be abused.

"It's not the mischief in this case that would cause the (Supreme) Court to be worried," Morrison said. "It's the next case or the case after that where there isn't a clerical mistake but there's an effort to deceive or change the result."

Recognizing the problem, the Senate on Wednesday passed a resolution just hours after Bush signed the bill confirming that the measure transmitted to the president was "deemed the true enrollment reflecting the intention of the Congress."

Legal experts, however, say the resolution doesn't solve the problem.

Even though Congress routinely passes so-called technical corrections bills fixing glitches in laws that it's already passed and even correcting bills before sending them to the White House, sending the president a bill that's passed House and Senate in different form just isn't done.

"I don't know that we've had a circumstance where the president may be signing a bill that one of the chambers didn't actually approve," said Gerhardt. "That's the unique wrinkle here."

If the law is struck down, Congress could go ahead and try to pass it again. But that would prove difficult since the spending cut plan advanced under fast-track budget rules that block Democrats from filibustering bills to death in the Senate.