Ruling in suit over budget snafu expected this summer

A left-leaning watchdog group’s lawsuit challenging the Deficit Reduction Act could hinge on a U.S. district court judge’s determination of his authority to rule on the constitutional questions surrounding the embattled law.

At a hearing yesterday in the U.S. District Court for the District of Columbia, Judge John Bates hinted that Supreme Court precedent might preclude him from ruling on whether the Deficit Reduction Act (DRA) was lawfully enacted.

“I would be crafting a rule … as opposed to just deciding a case,” Bates said, because no federal court has substantially addressed these questions in more than 100 years.

He said he expects to rule on competing motions filed by the plaintiff, Public Citizen, and the U.S. government before the end of the summer.

Many of Bates’s questions to the attorneys focused on whether a 19th-century Supreme Court decision allows him the latitude even to consider the evidence in the case.

Public Citizen filed the suit in March, alleging that Congress violated the bicameral clause of the Constitution when the House passed a slightly different version than the Senate because of a clerk’s error. The language relates to Medicare coverage for medical-equipment rentals.

Public Citizen’s case is one of at least five federal cases that question the constitutionality of the act. Eleven House Democrats, for example, allege in one lawsuit that their civil rights as members of Congress were violated.

The fight to repeal the law, which passed Congress without a single Democratic vote early this year, has moved from the House to the courts after Democrats employed several procedural maneuvers to try to force a new vote and an investigation into the unusual circumstances connected to the bill’s enactment. House Democrats blocked Republican attempts to address the clerical error quickly. Senate Democrats have not been involved in the dispute.

Public Citizen is seeking summary judgment that the law was not constitutionally enacted.

“The only evidence the court needs to look at is the official record of Congress,” Public Citizen attorney Allison Zieve told the court. By comparing the engrossed, final printed version of the House-passed bill with the enrolled version sent to the president, the discrepancy is clear, Zieve said.

“It’s not as clear to me that the facts are so undisputed,” Bates said to Zieve. The government has opted neither to confirm nor contest Public Citizen’s version of the bill’s progress.

The Department of Justice has moved that the case be dismissed.

The government contends that the certification of the bill by House Speaker Dennis Hastert (R-Ill.) and Senate President Pro Tempore Ted Stevens (R-Alaska) established its authenticity. The House Republican leadership has maintained the same stance.

Lower courts are not permitted to question the authenticity of the enrolled version of a bill, argued Assistant Attorney General Brian Kennedy, who represented the government.

“It’s not really up to a district court,” Kennedy said.

The Supreme Court’s 1892 decision in Field v. Clark requires lower courts to accept the certified enrollment of bills by congressional officers, he said.

Zieve countered, “the court has a duty to look at the evidence and decide the case.”

In Field, the plaintiffs argued that the congressional journals did not specifically record that the legislation passed in the form signed by President Benjamin Harrison. The high court rejected that argument, largely out of deference to the legislative branch.

If the Supreme Court precedent is broadly understood, Bates told Zieve, it would “preclude a judge like myself from looking at the evidence you want me to look at.”

On the other hand, he told Kennedy, if there was “an uncontestable factual record” that the legislative process had been violated, “we would just have to live with that” under such a standard.

Zieve offered a different interpretation of what the litigators and judge called the “enrolled-bill rule.” If there is “clear and convincing evidence” that a bill was enacted without first being passed by both chambers, she said, a lower court could step in.

If courts cannot question the authenticity of an enrolled bill, “the Speaker [of the House], the president of the Senate and maybe even the clerks are making law on their own,” Zieve said.

A more recent Supreme Court decision guides this broader reading of Field, Zieve said.

A footnote in the 1990 ruling in United States v. Munoz-Flores indicates that the “nature of the evidence” (i.e., the journals) was at issue in Field, not the court’s authority, according to Zieve.

A footnote is “risky territory for a district judge,” Bates said.

President Bush appointed Bates to the federal bench in 2001 and to the U.S. Foreign Intelligence Surveillance Act court this March.

From 1995 to 1997, Bates was one of Kenneth Starr’s deputies in the Whitewater investigation against then-President Clinton. In 2002, Bates dismissed the Government Accountability Office’s lawsuit seeking to force Vice President Cheney to disclose information about his energy task force.