Democrats Reviewing Options in Standoff on 'Law' Restricting Medicaid Transfers

Democrats in the House of Representatives are continuing their effort to have the two differing versions of the Deficit Reduction Act of 2005 (DRA) reconciled and voted on again, while Republican leaders say they are content to rely on the courts to straighten the matter out. Meanwhile, the New York Times in an editorial suggests that the $2 billion difference between House and Senate versions of the bill "won't go away" but is unlikely to be fixed legislatively because "the last thing [House Republicans] want is to open a fresh debate on the budget measure's harsh cutbacks on programs for the poor and the middle class."

"We're going to keep pressing on this," Brendan Daly, a spokesman for House minority leader Nancy Pelosi (D-CA), told ElderLawAnswers. "We may take some other action next week [the week of February 27]. We're still deciding what we want to do."

This much both sides can agree on: the version of the DRA signed by the president on February 8 was not the same bill that the House passed, and the difference in the bills amounts to $2 billion over five years. (For details on how the bills differ, click here.) Among other cutbacks to social programs, the legislation would place severe new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care.

But Republicans now appear to be taking the position that the House and Senate need not pass the same bill for a version of it to become law. This stance is at odds with a new edition of 'How Our Laws Are Made,' a House parliamentarian's report on the legislative process that Congress spent $221,000 to revise and publish three years ago. That report states: 'A bill cannot become a law of the land until it has been approved in identical form by both Houses of Congress.'

'Once again, Republican leaders have burned the book on how our laws are made,' Pelosi charged.

So far, there is one effort to have the law overturned by the courts. Alabama elder law attorney Jim Zeigler has filed a lawsuit in the U.S. district court challenging the law's constitutionality. Zeigler recently issued an appeal for funds to meet the estimated $300,000 he says will be needed to mount the legal battle.

Pelosi spokesman Daly said "there is talk of other lawsuits," although he doubted Democrats would file a court case of their own to block the DRA's implementation. But he said Democrats have a number of administrative options at their disposal to stop implementation, such as filing a complaint with the House Ethics Committee or the House Administration Committee.

"It could be [resolved legislatively] if they wanted to do it," said Daly. "It wouldn't be that difficult a thing; they could just fix it and then call for a revote, but they don't want to do that because it's a controversial bill."

To support their contention that the DRA will withstand legal scrutiny, Republicans point to an 1892 Supreme Court decision, Field v. Clark, 143 U.S. 649 (1892), where it was charged that a tariff bill was not law because it was missing a provision when it was signed by President Benjamin Harrison. The Court ruled that if a bill is signed by House and Senate leaders, receives the president's approval, and is deposited into the public archives, "its authentication as a bill that has passed Congress should be deemed complete and unimpeachable.'

But there appear to be important differences between Field and the current controversy. Attorney Zeigler quotes Michael Gerhardt, a professor of constitutional law at the University of North Carolina School of Law, as saying, "I don't know that we've had a circumstance where the president may be signing a bill that one of the chambers didn't actually approve. That's the unique wrinkle here." In addition, in this case it is alleged that House Speaker Dennis Hastert (R-IL) and Senate President Pro Tempore Ted Stevens (R-AL) certified the bill even though they knew that the two chambers of Congress had passed different versions.

According to The Hill former House Majority Leader Dick Armey (R-TX) said that further legislative action on the bill is necessary.

'I don't think the process of enrolling the bill speaks to the language of the bill,' Armey said. 'I think there's got to be some reconciliation of that bill.'

This is unlikely to happen, predicts the New York Times in a February 23 editorial titled "Congress's $2 Billion Typo." "A routine vote could fix things," the Times writes. "But as Republican leaders ready the stage for another wad of tax cuts for the upper brackets, the last thing they want is to open a fresh debate on the budget measure's harsh cutbacks on programs for the poor and the middle class. And House Democrats are not in an election-year mood to white-out the typo without a debate."

Alluding to Attorney Zeigler's suit, the Times goes on: "one taxpayer is already suing to undo this precedent for further Congressional sloppiness. But we're a nation of politics as well as laws. This fall, voters will have a chance to take a second look at the indefensible cutback bill, even if Congress's leaders are afraid to."

To read the New York Times editorial, click here. (Free registration required and article is available free of charge for only one week.)