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"Not a Law "

Original location:

The Washington Post

A bill passed by only one house of Congress just doesn't count.

Saturday, April 1, 2006; Page A16

IT'S GRADE school stuff: To become law, a bill must pass both houses of Congress in identical form and be signed by the president or approved over his veto. A bill passed by only one house -- or passed by both houses in different forms -- is not a law. Unless, that is, the bill is the Deficit Reduction Omnibus Reconciliation Act of 2005, and complying with the Constitution would be really, really inconvenient to President Bush and Republican congressional leaders.

This odd case arose because of a clerical error when the bill, designed to cut federal spending, was sent from the Senate to the House. The Senate passed it in December -- with Vice President Cheney breaking a tie -- complete with a provision to restrict government leases of certain health care equipment to 13 months. By the time the House had passed the bill, however, the 13 months had accidentally become 36 months -- which amounted to a $2 billion change. Yet instead of correcting the error and voting again, Congress simply presented the Senate bill to President Bush, along with House Speaker J. Dennis Hastert's erroneous attestation that the House had passed it. The bill, as a lawsuit filed by Public Citizen last week alleges, is not a valid law under the Constitution.

The administration and congressional leaders defend it, citing an 1892 Supreme Court decision that held that the courts will not look behind certifications like Mr. Hastert's if there is a factual dispute about whether the process spelled out in the Constitution was followed. Here, however, there is no factual dispute: Nobody contends that the House passed the bill Mr. Bush signed. And as the court noted back then, "There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures . . . any bill not passed by Congress."

Indeed, for the courts to consider Mr. Hastert's certification the end of the matter would deal a real blow to the legislative system the Constitution envisions. Could Mr. Hastert have simply sent the Senate version of, say, the USA Patriot Act for Mr. Bush's signature? What about a Senate bill the speaker likes but that the House would never pass? The courts are rightly reluctant to resolve matters of legislative procedure, regarding them as political questions. But they should not acquiesce to a law that never passed

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