Saturday, March 11, 2006

John Dean on Republican Congressional "despotism"

John Dean's latest biweekly column focuses on an important but little-known lawsuit over the Deficit Reduction Act of 2005: The Broken Branch: An Unusual Lawsuit Takes Congress to Task For Shoddy and Partisan Lawmaking, In Which A Bill Is Unconstitutionally Being Treated as Law 03/10/06.

The lawsuit is about a provision of the law affecting Medicare. The House passed the bill with a provision allowing up to 36 months coverage on "durable equipment" like wheel chairs. The Senate passed it with a 13 month cap. So the Senate clerk just changed the 36 months in the House version of the bill to 13 months to match the Senate version, and it was signed into law without ever having been approved in its final form by both houses. The lawsuit is claiming that it was not passed in a valid way. Dean writes:

Some may claim that this is a political question, but such rhetoric ought not mislead the court; this constitutional provision is black-letter clear, and so is its violation here. Either both houses have passed on a given bill, or they have not. Passing on two different versions of the same bill is surely not enough.
Dean goes on to explain some of the Constitutional background:

The requirement of bicameralism [i.e., both Houses agreeing on the same law] is as crucial as it is simple. During the debates of the Constitutional Convention, the need for a bicameral (two-chamber) legislature was specifically addressed by James Wilson, who later to became a Justice of the U.S. Supreme Court, known for his scholarship. At the nation's founding, Wilson observed: "Despotism comes on mankind in different shapes... If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it."
In short, ignoring the Constitution's requirement that legislation pass if, and only if, it commands the votes of concurrent majorities of both houses of Congress is nothing short of GOP despotism. The broken branch needs fixing so we must all hope that the federal courts step in to halt what the President failed to put an end to: self-styled lawmaking outside the rules of the Constitution.

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