Conference Call: Justices to Weigh Bicameralism Challenge

The following column, featuring a selected petition up for consideration at the Justices’ private conference on December 7, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

Budget Law Challenge Heads to High Court

Justices asked to consider whether the Deficit Reduction Act of 2005 was properly passed by Congress

Few requirements under the Constitution would appear more straightforward than those outlining how a bill becomes a law: Win a majority in one house of Congress, do the same in the other, and gain the president’s approval. Simple as the process may seem, however, it remains unclear what happens if the president signs a bill that failed to pass both houses of Congress in identical form.

Relying on a Supreme Court case from the late 19th century, numerous federal courts have recently deemed the question to be outside the proper scope of judicial inquiry. On Dec. 7, the justices will decide whether to revisit the question in what is scheduled to be their final private conference of the year. (The petition is No. 07-141, Public Citizen v. Clerk, U.S. District Court for the District of Columbia.)

The controversy stems from passage of the Deficit Reduction Act of 2005, a broad cost-cutting measure that, among other things, shortened the amount of time Medicare would cover rental costs of various medical equipment. The Senate version capped coverage of wheelchairs and hospital beds at 13 months, but, due to a clerk’s error, the version transmitted to the House contained a 36-month limit.

Only realizing the error after the House passed the incorrect version, the Senate clerk reinstated the original 13-month provision in the final bill. After the presiding officers of each chamber mistakenly certified the measure as having passed both houses of Congress, President George W. Bush signed the Senate version into law in early February 2006.

Soon thereafter, federal suits arose around the country contesting the discrepancy between the House and Senate versions. Unhappy with a separate provision of the bill increasing the fee to file suit in federal court by $100, Public Citizen, a consumer advocacy organization founded by Ralph Nader, asked the U.S. District Court for the District of Columbia to declare the entire measure unconstitutional.

Contrary to the predictions of many constitutional law scholars, however, Judge John Bates dismissed the suit in August 2006. Even if the House and Senate had passed different versions of the bill, he concluded, the Public Citizen suit remained foreclosed under the Supreme Court’s 1892 decision in Marshall Field & Co v. Clark.

In that case, a group of importers alleged that the version of the Tariff Act of 1890 signed by President Benjamin Harrison did not match the version recorded in the congressional journals as having passed both houses of Congress.

Citing both practical and separation-of-powers concerns, the justices held in effect that courts should presume all legislation signed by the president to have properly passed both houses of Congress. Otherwise, the Court found, every piece of federal legislation could face attack due to alleged discrepancies in legislative records. “Such a state of uncertainty,” declared Justice John Harlan, “would lead to mischiefs absolutely intolerable.”

On appeal, a panel of the U.S. Court of Appeals for the D.C. Circuit in May unanimously affirmed Bates’ ruling. In an opinion written by Senior Judge Harry Edwards, the panel held that Marshall Field required the judiciary to simply accept the assurances of the presiding House and Senate officers that the bills in fact passed their respective chambers of Congress. Because then-Speaker Dennis Hastert (R-Ill.) and then-president pro tempore of the Senate Ted Stevens (R-Alaska) had signed off on the bill in question, the panel concluded that courts could not consider “extrinsic evidence” to the contrary.

In its petition for certiorari, filed by in-house lawyer Allison Zieve, Public Citizen contends that the rulings below effectively render the Constitution’s bicameralism requirement advisory and unenforceable. If they are left standing, Zieve argues, nothing would stop presiding congressional officers from certifying bills that were never actually approved by their respective chambers. “[T]he question,” the petition contends, “is whether, in the face of indisputable evidence proving a constitutional violation, the judiciary must turn a blind eye and permit enforcement of a bill that the Constitution does not recognize as law.”

Moreover, the petition contends, two more recent decisions undercut the holding of Marshall Field. In a footnote in the 1990 decision United States v. Munoz-Flores, Zieve argues, the justices rejected a contention that challenges under the origination clause – requiring that bills for raising revenue originate in the House – are nonjusticiable. And as recently as the Court’s 1998 decision in Clinton v. City of New York, the justices reaffirmed that to become law, any bill signed by the president must contain “precisely the same text” as the versions that won passage in both houses of Congress.

The government’s brief in opposition, submitted by Solicitor General Paul Clement, maintains that the rationale behind Marshall Field is as strong – if not stronger – today as it was in 1892. In addition to raising separation-of-powers concerns, the government argues, permitting judicial inquiries into congressional procedures would make sweeping pieces of legislation vulnerable to invalidation due to even the most minor typos. “If Marshall Field were overruled,” the government concludes,” “litigants would have a strong incentive to scour the Congressional Record for evidence of previously unnoticed clerical errors.” – Ben Winograd

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