- The Washington Times - Wednesday, February 15, 2006

A man has filed the first constitutional challenge to last week’s budget-cuts law, which he said is invalid because the House and Senate never passed the identical bill.

Jim Zeigler, a lawyer in Mobile, Ala., said his challenge comes from the right — as a conservative who is worried that the bill will hurt charitable giving to churches.

The measure in question reduced entitlement spending by $39 billion over five years. Because of a clerical error, the version that passed the House had a different time period for reimbursing medical providers for some medical equipment than the version that passed the Senate.

“That’s an untenable position,” Mr. Zeigler said. “The identical bill must pass the House and Senate and be signed by the president or the whole bill has been unconstitutionally enacted.”

A lawyer who represents elderly clients, Mr. Zeigler said he has standing to sue because he doesn’t know whether to advise clients to follow the rules pre-Feb. 8, when President Bush signed the bill, or post-Feb. 8.

House Democrats and liberal activist groups also say the law is invalid and want to force Republicans to hold another vote on the bill. It passed by slim majorities in both the House and Senate, requiring the tie-breaking vote of Vice President Dick Cheney, who serves as Senate president.

Mr. Zeigler said his objection is to a part of the law that would make seniors looking to enter a nursing home under Medicaid ineligible until they pay back any charitable gifts they made over five years. Mr. Zeigler said that would hurt donations to churches.

“This is conservative Christians who are concerned that faithful givers are penalized under the new law,” he said.

Republican leaders, though, say they will not revisit the bill.

“I believe it’s law and it should be,” House Majority Whip Roy Blunt of Missouri said yesterday, and on Monday, White House press secretary Scott McClellan said Supreme Court precedents show the president’s signature makes it law.

In 1892, the Supreme Court ruled, in the case Field v. Clark, that the signatures of the House speaker and the president of the Senate are enough to certify a bill legitimately passed Congress and was sent to the president.

“When a bill, thus attested, receives [the president’s] approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable,” Justice John Marshall Harlan wrote in the majority opinion.

But opponents said the bill itself can’t be considered to have passed Congress because the versions differed.

William Eskridge Jr., a professor at Yale Law School, said there is a good argument that the process violated constitutional mandates, but said judges would probably dismiss a challenge by arguing the dispute is a political question best left to the elected branches of government.


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