[Congressional Record Volume 152, Number 38 (Thursday, March 30, 2006)]
[Extensions of Remarks]
[Pages E474-E476]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  REGARDING RESOLUTION OF INQUIRY SEEKING DOCUMENTS CONCERNING WHITE 
       HOUSE KNOWLEDGE OF THE CONSTITUTIONAL INFIRMITY OF S. 1932

                                 ______
                                 

                          HON. HENRY A. WAXMAN

                             of california

                    in the house of representatives

                        Thursday, March 30, 2006

  Mr. WAXMAN. Mr. Speaker, today, I and a number of my colleagues are 
introducing legislation to investigate the White House's knowledge of 
the constitutional defects of S. 1932, the Deficit Reduction Act of 
2005, at the time the President signed the bill into law.

[[Page E475]]

  On February 8, 2006, President Bush signed into law a version of S. 
1932 that was different in substance from the version the U.S. House of 
Representatives passed on February 1, 2006. The House-passed version of 
the legislation required the Medicare program to lease ``durable 
medical equipment,'' such as wheelchairs, for seniors and other 
beneficiaries for up to 36 months, while the version of the legislation 
signed by the President limited the duration of these leases to just 13 
months. As the Congressional Budget Office reported, this seemingly 
small change from 36 months to 13 months has a disproportionately large 
budgetary impact, cutting Medicare outlays by $2 billion over the next 
5 years.
  Under the U.S. Constitution, a bill cannot become law unless the same 
version is passed by both Houses of Congress and signed by the 
President. It appears that the Republican congressional leadership knew 
that the process of enacting S. 1932 violated this principle. Now 
evidence is mounting that the President and his staff may have 
knowingly participated in this constitutionally infirm process.
  As I wrote to former White House chief of staff Andrew Card on March 
15, I have learned that the Speaker of the House advised the White 
House of the differences between the House-passed bill and the bill 
presented to the President before the President signed the legislation. 
This account was confirmed in a March 22 Wall Street Journal article, 
which reported that the Speaker's chief of staff ``called a high 
ranking White House official'' and ``asked the Administration to delay 
proceedings until the problem could be addressed by the House and 
Senate.'' Nevertheless, the President signed S. 1932 into law without 
any action by the House and Senate to address the problem.
  This information has serious constitutional implications. When the 
President took the oath of office, he swore to ``preserve, protect, and 
defend the Constitution of the United States.'' If the President signed 
S. 1932 knowing its constitutional infirmity, he would in effect be 
placing himself above the Constitution.
  The President's decision to authorize the National Security Agency to 
conduct warrantless wiretaps despite Federal laws forbidding the 
practice has raised questions in the minds of many Americans about 
whether he considers himself bound by the laws enacted by Congress. The 
mounting evidence that the President signed the Reconciliation Act into 
law knowing that it differed from the legislation passed by Congress 
now raises the issue whether he considers himself bound by the 
provisions of the Federal Constitution.

  Given the constitutional issues at stake, it is imperative that 
Congress exercise its oversight powers to examine what the President 
and his staff knew about the defects in S. 1932 and how they considered 
and acted on any such information. The resolution of inquiry I am 
introducing today would advance such a congressional inquiry by 
requesting that the White House provide Congress with all documents 
relating to information the White House received about the difference 
between the version of the bill the House passed on February 1 and the 
version the President signed on February 8.


                               Background

  Last fall, the House and Senate passed different versions of the 
Deficit Reduction Omnibus Reconciliation Act of 2005. During the House-
Senate conference committee on the bill, a significant last-minute 
issue arose in the conference involving how long Medicare should pay 
for durable medical equipment, DME. Existing Medicare law provided for 
payments for DME by Medicare under a fee schedule for an unlimited 
period of time. In an effort to reduce Medicare spending, the conferees 
tentatively agreed to reduce the duration of Medicare payment to just 
13 months.
  This proposal, however, generated objections from a Senator and 
Representative from Ohio, where a major manufacturer of oxygen 
equipment is located. To accommodate their concerns, the conference 
report reduced the duration of Medicare payments for most DME to 13 
months, but directed Medicare to continue to pay for oxygen equipment 
for 36 months. The final conference report was filed on December 19, 
2005.
  The House passed the conference report on S. 1932 on December 19, 
2005, by a vote of 212-206.
  The Senate considered the conference report on December 19, 20, and 
21. During that consideration, several points of order were raised 
against the report and sustained as violating the congressional budget 
process. A motion was made to waive these points of order but that 
motion was defeated. The effect was to defeat the conference report in 
the Senate.
  On December 21, the Senate passed S. 1932 with an amendment that 
reflected the contents of the conference report, minus the items that 
generated the points of order. The vote in the Senate was a tie, and 
Vice President Cheney cast the deciding vote. This bill, as amended, 
was then sent back to the House for its concurrence.
  In the process of transmitting the bill, as amended, back to the 
House, the Senate clerk made a significant substantive change to the 
legislation. This change extended the duration of Medicare payments for 
all DME to 36 months, the same time period provided in the Senate 
amendment for oxygen equipment. The Senate clerk realized the 
mistake, and the Republican House leadership was informed of the error 
in January, several weeks before final House floor action was scheduled 
to occur.

  Such errors in formal messages between the houses are not 
unprecedented. They are recorded in the House precedents as having 
occurred as long ago as March 13, 1800, and as recently as July 12, 
2005. They are typically handled by sending the legislation back to the 
Senate for the mistake to be corrected.
  The response by the Republican leadership to the error in S. 1932, 
however, was without precedent. It constitutes a violation of the House 
Rules and of the Constitution itself.
  Apparently concerned that any additional vote in the Senate could 
endanger passage of the legislation, the Republican leadership did not 
seek to correct the problem. Instead, the Republican leadership brought 
the legislation to the House floor on February 1 without revealing to 
the Democratic leadership or the body of the House that the 36-month 
period in the legislation before the House did not represent the 
legislation passed by the Senate.
  On February 1, the House voted on the version of the bill, as 
amended, that contained the DME mistake. The vote was extremely close, 
216 to 214. As a result of this vote, the House and Senate had voted 
for different bills, the House having adopted a version that provided 
for 36 months for DME and the Senate having adopted a version that 
provided for 13 months.
  Because the budget legislation originated in the Senate, the official 
version was returned to the Senate before being transmitted to the 
President for his signature. At this point, a Senate clerk made a 
second substantive change in the legislation, revising the House-passed 
text to reflect the original Senate-passed amendment. This change 
restored the 13-month period for coverage of DME other than oxygen 
equipment.
  On February 7, the budget legislation was presented to the President. 
The documents transmitted to the President included an attestation by 
House Speaker Dennis Hastert and President pro tern of the Senate Ted 
Stevens that the legislation had been passed by both the Senate and the 
House.
  On the morning of February 8, the White House Office of Management 
and Budget notified Republican congressional staff that the version of 
the legislation presented to the President was not the same as the 
version of the legislation passed by the House. This information was 
conveyed to the office of House Speaker Hastert. The Speaker's chief of 
staff then called senior staff at the White House to advise the White 
House of this mistake and to request a delay in signing of the 
legislation.
  The Wall Street Journal recently published an account of the 
communications between the Speaker's chief of staff and the White 
House. According to the Wall Street Journal, the Speaker's office 
``confirmed . . . that the Illinois Republican had asked 
the administration to delay proceedings until the problem could be 
addressed by the House and Senate.'' Indeed, the Wall Street Journal 
reported, ``When the Speaker and Senate Majority Leader . . . went to 
the White House for the Feb. 8 ceremony, they expected only a `mock 
ceremony'--not a real signing of the parchment that had been presented 
in error.''

  On the afternoon of February 8, despite the communications from the 
House Speaker, the President signed the bill. The version the President 
signed is the version that reflected the Senate-passed amendment, not 
the House-passed text.


                      The Need for the Resolution

  Over 100 years ago, the Supreme Court addressed whether a bill could 
become law if the version signed by the President differed from the 
version passed by the House and Senate. In the case of Field v. Clark, 
143 US 649 (1892), the Court held that the President could rely on the 
attestation of the Speaker of the House and the President of the Senate 
that the legislation before the President was the same as the 
legislation that passed the Congress. But the Court also recognized 
that the outcome would be different if there were a ``deliberate 
conspiracy'' to ignore the Constitution. As the Court wrote:

       It is said that . . . it becomes possible for the Speaker 
     of the House of Representatives and the President of the 
     Senate to impose upon the people as a law a bill that was 
     never passed by Congress. But this possibility is too remote 
     to be seriously considered in the present inquiry. It 
     suggests a deliberate conspiracy to which the presiding 
     officers, the committees on enrolled bills, and the clerks of 
     the two houses must necessarily be parties, all acting with a 
     common

[[Page E476]]

     purpose to defeat an expression of the popular will in the 
     mode prescribed by the constitution.

  It now appears that the possibility that a President would knowingly 
sign legislation that did not pass Congress is no longer ``too remote 
to be seriously considered.'' In fact, this is exactly what appears to 
have happened when President Bush signed the Reconciliation Act.
  To learn more about this matter, I wrote the President's chief of 
staff, Andrew Card, on March 15, seeking information on the President's 
knowledge of the bill's constitutional infirmity. When the Wall Street 
Journal reported on March 22 that Speaker Hastert's office had informed 
the White House of the problems with the legislation, I joined 
Democratic Leader Nancy Pelosi in sending a second letter to the White 
House. Unfortunately, there has been no White House response.
  I therefore urge my colleagues to support the resolution of inquiry I 
am introducing today. The American public deserves a detailed 
explanation of what went wrong with the enactment of S. 1932--and 
assurance that government leaders will not ignore basic constitutional 
requirements regarding the legislative process.

                          ____________________