Even elementary students of civics know that in order for a bill to become a law, both branches of Congress must enact identical wording, which is then sent to the President for his signature. That constitutionally-required procedure was violated when the President signed the already-controversial budget reconciliation bill on February 8.
The reconciliation bill is familiar to HNR readers as the legislation that cut nearly $39 billion from programs including Medicaid, child support enforcement, aid for people with disabilities, foster care assistance, and student loans (S. 1932; PL 109-171). The House took what it thought was a final vote on the legislation on February 1, enacting it by a slim two-vote margin (216-214). But the legislation before them was not the same as had passed the Senate. Provisions were changed concerning the number of months Medicare will pay for renting durable medical equipment. While the Senate-approved bill allowed Medicare to pay for renting oxygen equipment for 36 months and other items (such as wheelchairs) for up to 13 months, a Senate clerk preparing to send the bill to the House is reported to have accidentally altered the text to read that Medicare could pay for renting all forms of durable medical equipment for 36 months. That is the version enacted by the House, although the House Democrats found later that the House leadership had been informed nearly two weeks before the final House vote that the language had been changed. According to the Congressional Budget Office, the longer rental period would cost the federal government $2 billion. After the House vote, the Senate clerk changed the legislation once again to match what the Senate had passed, and that version was signed by the President.

House Democratic Leader Nancy Pelosi (D-CA) sent Speaker Dennis Hastert (R-IL) a letter on February 14 urging him to reconsider the legislation and to ensure that both House and Senate enact identical bills. She also introduced a resolution on February 16 calling for an ethics inquiry into the House majority leadership’s actions around this issue. The resolution was tabled (that is, killed) on a party line vote. Budget Committee Chairman Jim Nussle (R-IA) called for the resignation or firing of the Senate clerk responsible. The Senate passed a resolution affirming that the version signed by the President is the correct legislation.

That the legislation sent to the President is different from what the House voted on is seen as a serious and perhaps unprecedented breach of constitutional law. One attorney, Jim Zeigler of Mobile, Alabama, is suing Congress over it. A conservative Republican with elderly clients concerned about Medicaid coverage of nursing home care, Zeigler disputes the validity of the law signed by the President. Others are also looking into a lawsuit, which must be brought on behalf of those affected by the law’s provisions. A lawsuit could invalidate the entire budget reconciliation act; it more likely might lead to another round of votes on the correct legislative language.

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