[House Report 109-457]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-457

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 REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES 
 NOT LATER THAN 14 DAYS AFTER THE DATE OF ADOPTION OF THIS RESOLUTION 
 DOCUMENTS IN THE POSSESSION OF THE PRESIDENT RELATING TO THE RECEIPT 
   AND CONSIDERATION BY THE EXECUTIVE OFFICE OF THE PRESIDENT OF ANY 
 INFORMATION CONCERNING THE VARIATION BETWEEN THE VERSION OF S. 1932, 
 THE DEFICIT REDUCTION ACT OF 2005, THAT THE HOUSE OF REPRESENTATIVES 
   PASSED ON FEBRUARY 1, 2006, AND THE VERSION OF THE BILL THAT THE 
                  PRESIDENT SIGNED ON FEBRUARY 8, 2006

                                _______
                                

 May 9, 2006.--Referred to the House Calendar and ordered to be printed

                                _______
                                

  Mr. Tom Davis of Virginia, from the Committee on Government Reform, 
                        submitted the following

                             ADVERSE REPORT

                             together with

                            ADDITIONAL VIEWS

                       [To accompany H. Res. 752]

    The Committee on Government Reform, to whom was referred 
the resolution (H. Res. 752) requesting the President to 
transmit to the House of Representatives not later than 14 days 
after the date of adoption of this resolution documents in the 
possession of the President relating to the receipt and 
consideration by the Executive Office of the President of any 
information concerning the variation between the version of S. 
1932, the Deficit Reduction Act of 2005, that the House of 
Representatives passed on February 1, 2006, and the version of 
the bill that the President signed on February 8, 2006, having 
considered the same, report unfavorably thereon without 
amendment and recommend that the resolution not be agreed to.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     3
Committee Consideration..........................................     3
Rollcall Votes...................................................     4
Application of Law to the Legislative Branch.....................     5
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     5
Statement of General Performance Goals and Objectives............     5
Constitutional Authority Statement...............................     5
Federal Advisory Committee Act...................................     5
Unfunded Mandate Statement.......................................     5
Committee Estimate...............................................     5
Budget Authority and Congressional Budget Office Cost Estimate...     5
Changes in Existing Law Made by the Bill as Reported.............     6
Additional Views.................................................     7

                     COMMITTEE STATEMENT AND VIEWS

    The Committee concluded that the requested inquiry was 
unwarranted because the facts are already well known and the 
courts will resolve the legal effect, if any, of the clerical 
error in the Deficit Reduction Act of 2005.
    The President was presented with a bill that was certified 
by the Speaker of the House and the President Pro Tempore of 
the Senate as being an Act of Congress, and he signed it. It 
has been widely reported that a Senate clerk made an error in 
the bill that was transmitted to the President and that White 
House staff noticed the mistake prior to the signing of the 
bill.
    That error involved the length of time that certain medical 
devices can be leased under Medicare. The bill that was 
transmitted to the House by the Senate, voted on by the House, 
and transmitted back to the Senate, allowed 36-month leases. 
Apparently the version voted upon by the Senate had limited the 
lease period to 13 months, but a clerk mistakenly had altered 
that version to allow 36-month leases before it was transmitted 
to the House. After the House voted on the bill as transmitted 
by the Senate, a Senate clerk erroneously changed that 36-month 
lease period back to 13 months before it was signed by the 
Speaker and the President Pro Tempore, without knowledge of the 
error. When White House officials noticed the change, they 
chose to rely on the signatures on the bill.
    Moreover, the Senate was not at all disturbed by the error 
of its clerk. It passed by unanimous consent that same day S. 
Con. Res. 80, deeming the bill signed by the President to 
reflect Congress's intent. In other words, the Senate was 
satisfied that in the face of its own error, Congress intended 
to allow such leases for 13 months, not 36 months.
    Finally, the courts will determine whether the error has 
any legal effect. As the Minority have noted in their letters 
and statements on this subject, clerical errors happen. This 
was nothing but a clerical error. To the extent that such an 
error has significant constitutional implications, the courts 
are perfectly capable of addressing them. The Committee 
believes that further inquiry into this matter by the Congress 
will not serve any useful purpose that the courts cannot 
address.

                          PURPOSE AND SUMMARY

    House Resolution 752 is a resolution of inquiry introduced 
on March 30, 2006, by Government Reform Committee Ranking 
Member Henry Waxman, seeking all telephone, email, and other 
records from the Executive Office of the President regarding 
variations between S. 1932, the Deficit Reduction Act of 2005, 
as passed by the House and the bill signed by the President.

                  BACKGROUND AND NEED FOR LEGISLATION

    H. Res. 752 is a resolution of inquiry. The resolution 
would request the President to transmit to the House of 
Representatives not later than 14 days after the date of 
adoption of this resolution, all documents, including telephone 
and electronic mail records, logs and calendars, and records of 
internal discussions in the possession of the President 
relating to the receipt and consideration by the Executive 
Office of the President of any information concerning the 
variation between the version of S. 1932, the Deficit Reduction 
Act of 2005, that the House of Representatives passed on 
February 1, 2006, and the version of the bill that the 
President signed on February 8, 2006.
    House of Representatives rule XIII clause 7 provides that 
if the Committee to which a resolution of inquiry is referred 
does not act on the resolution within 14 legislative days, a 
privileged motion to discharge the Committee is in order on the 
House floor. In calculating the days available for Committee 
consideration, the days of introduction and discharge are not 
counted.
    Upon introduction, H. Res. 752 was referred to the 
Committee on Government Reform. As of the filing of this 
report, sixteen resolutions of inquiry have been introduced in 
the House during the 109th Congress. None of the resolutions 
have been reported favorably to the House.

                           SECTION-BY-SECTION

    H. Res. 752 would request the President to transmit to the 
House of Representatives not later than 14 days after the date 
of adoption of this resolution, all documents, including 
telephone and electronic mail records, logs and calendars, and 
records of internal discussions in the possession of the 
President relating to the receipt and consideration by the 
Executive Office of the President of any information concerning 
the variation between the version of S. 1932, the Deficit 
Reduction Act of 2005, that the House of Representatives passed 
on February 1, 2006, and the version of the bill that the 
President signed on February 8, 2006.

                       EXPLANATION OF AMENDMENTS

    There were no amendments offered.

                        COMMITTEE CONSIDERATION

    On May 4, 2006, the Committee met in open session and 
ordered the resolution to be reported unfavorably to the House 
by recorded vote.


              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of bills and joint resolutions 
to the legislative branch where the bill or joint resolution 
relates to the terms and conditions of employment or access to 
public services and accommodations. The Committee finds that 
the section does not apply because H. Res. 420 is not a bill or 
joint resolution.

  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee finds that the rule does not 
apply because H. Res. 420 is not a bill or joint resolution 
that may be enacted into law.

                     FEDERAL ADVISORY COMMITTEE ACT

    The Committee finds that the resolution does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       UNFUNDED MANDATE STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement whether 
the provisions of the legislation include unfunded mandates. 
The section does not apply because H. Res. 420 is not a bill or 
joint resolution that may be enacted into law.

                           COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H. Res. 752. The Committee estimates the costs of implementing 
the resolution would be minimal. The Congressional Budget 
Office did not provide a cost estimate for the resolution.

     BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

          CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that H. Res. 
420 makes no changes to existing law.

                            ADDITIONAL VIEWS

                     Views of Hon. Henry A. Waxman

    I introduced H. Res. 752 to require the Administration to 
provide Congress with documents concerning the President's role 
in S. 1932, the Deficit Reduction Act of 2005. Constitutional 
requirements were not followed when the bill was presented to 
and signed by the President. The resolution seeks to find out 
why.
    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 five 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. Evidence is mounting that the 
President and his staff may have knowingly participated in this 
constitutionally infirm process.
    It appears that on the morning of February 8--the day the 
legislation was signed by the President--the office of House 
Speaker Hastert called senior staff at the White House to 
notify the file White House that the version of the legislation 
that had been sent to the President differed from the version 
passed by the House. Despite these communications from the 
House Speaker, the President signed the bill on February 8.
    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 President's assertion that he can 
ignore a recently enacted law prohibiting torture has raised 
similar questions.
    The evidence that the President signed the Deficit 
Reduction Act knowing that it differed from legislation passed 
by the House presents an even more fundamental issue:
    Does the President consider himself bound by the provisions 
of our nation's 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 would advance such a congressional 
inquiry by requesting that the White House provide Congress 
with all documents relating to information the White House had 
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 tem 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.
    According to a recent Wall Street Journal account, 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.

                         CONSTITUTIONAL ISSUES

    Some have attempted to suggest the differences between the 
versions signed by the President and passed by the House 
amounted to a ``technicality.'' But the difference between the 
versions of the bill had a substantial budgetary impact, 
amounting to $2 billion over 5 years. Two billion dollars in 
federal spending is not a mere technicality.
    Even more important, there are serious constitutional 
concerns with the legislative process on the Deficit Reduction 
Act. A number of preeminent constitutional scholars agree that 
the Deficit Reduction Act is not a valid law.
    Professor Michael Gerhardt of the University of North 
Carolina School of Law stated: ``the bill signed by President 
Bush was not constitutionally permissible.''
    Professor Michael Dorf of Columbia University Law School 
said: ``the Constitution specifies that a bill becomes law when 
passed by both houses of Congress and signed by the President. 
[This bill] was not passed by the House of Representatives. 
Thus, it is not law.''
    Professor Jamin Raskin of the American University 
Washington College of Law stated: ``the Deficit Reduction 
Omnibus Reconciliation Act of 2005 may be something but it is 
not law within the meaning of the Constitution.''
    It is true that the problems with the Deficit Reduction Act 
process included clerical errors. But the Republican leadership 
did not have to present a bill to the President that was not 
passed by both houses. They could have fixed this problem along 
the way. And it appears they avoided doing so because the 
measure had passed by such slim margins in both the House and 
Senate that they feared losing on any additional votes 
necessary to correct the error.
    Further, the President didn't have to sign the bill. If he 
was concerned about its constitutional infirmity he could have 
urged congressional leadership to request the bill's return to 
Congress so that Congress could address the problems relating 
to inconsistency between the House and Senate.
    So while the problem may have started with a clerk's error, 
it appears to have devolved into a deliberate effort on the 
part of Republican congressional leadership and the White House 
to ignore constitutional requirements.

                      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 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.
    H. Res. 752 constitutes a step essential to any 
congressional review of the role the White House played in the 
flawed process on the Deficit Reduction Act. The resolution 
simply requires the White House to provide Congress with 
information regarding what the White House knew about the 
constitutional infirmities of the bill.
    One of Congress' main responsibilities is to conduct 
oversight to check abuses by other branches of government. As 
the Supreme Court has stated:

          The power of the Congress to conduct investigations 
        is inherent in the legislative process. That power is 
        broad. It encompasses inquiries concerning the 
        administration of existing laws as well as proposed or 
        possibly needed statutes. It includes surveys of 
        defects in our social, economic or political system for 
        the purpose of enabling the Congress to remedy them. It 
        comprehends probes into departments of the Federal 
        Government to expose corruption, inefficiency or 
        waste.\1\
---------------------------------------------------------------------------
    \1\ Watkins v. United States, 354 U.S. 178,187 (1957).

    Yet during the Bush Administration, congressional 
Republican leaders have refused to conduct meaningful probes of 
significant allegations of wrongdoing by the Bush 
Administration.
    For example, Congress has failed to examine the role of 
White House officials in outing covert CIA agent Valerie Plame, 
even though this conduct is thought to have involved the top 
aides to the President and Vice President.
    Congress has failed to examine the role of the White House 
in manipulating intelligence about Iraq's weapons of mass 
destruction and ties to al Qaeda.
    Congress has failed to conduct a thorough review up the 
chain of command to determine the responsibility of senior 
Administration officials for the abuse of detainees.
    In fact, I am not aware of a single subpoena that 
congressional Republicans have issued to the White House during 
the entire five and half years of President Bush's tenure.
    H. Res. 752 provided an opportunity for Congress to take a 
step toward reversing this egregious pattern. Yet instead of 
seizing the opportunity, every Republican member of the 
Committee who voted on H. Res. 752 voted to report it 
unfavorably.

                               CONCLUSION

    It is important to the American people that the President 
and Congress protect the integrity of the legislative process. 
What went wrong with the Deficit Reduction Act process should 
be of concern to all members of Congress, regardless of their 
party. We--and the American public--deserve a thorough 
explanation of how the President came to sign the Deficit 
Reduction Act of 2005.

                                                   Henry A. Waxman.

                                  
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