[House Report 109-457]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-457
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REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES
NOT LATER THAN 14 DAYS AFTER THE DATE OF ADOPTION OF THIS RESOLUTION
DOCUMENTS IN THE POSSESSION OF THE PRESIDENT RELATING TO THE RECEIPT
AND CONSIDERATION BY THE EXECUTIVE OFFICE OF THE PRESIDENT OF ANY
INFORMATION CONCERNING THE VARIATION BETWEEN THE VERSION OF S. 1932,
THE DEFICIT REDUCTION ACT OF 2005, THAT THE HOUSE OF REPRESENTATIVES
PASSED ON FEBRUARY 1, 2006, AND THE VERSION OF THE BILL THAT THE
PRESIDENT SIGNED ON FEBRUARY 8, 2006
_______
May 9, 2006.--Referred to the House Calendar and ordered to be printed
_______
Mr. Tom Davis of Virginia, from the Committee on Government Reform,
submitted the following
ADVERSE REPORT
together with
ADDITIONAL VIEWS
[To accompany H. Res. 752]
The Committee on Government Reform, to whom was referred
the resolution (H. Res. 752) requesting the President to
transmit to the House of Representatives not later than 14 days
after the date of adoption of this resolution documents in the
possession of the President relating to the receipt and
consideration by the Executive Office of the President of any
information concerning the variation between the version of S.
1932, the Deficit Reduction Act of 2005, that the House of
Representatives passed on February 1, 2006, and the version of
the bill that the President signed on February 8, 2006, having
considered the same, report unfavorably thereon without
amendment and recommend that the resolution not be agreed to.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 3
Explanation of Amendments........................................ 3
Committee Consideration.......................................... 3
Rollcall Votes................................................... 4
Application of Law to the Legislative Branch..................... 5
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 5
Statement of General Performance Goals and Objectives............ 5
Constitutional Authority Statement............................... 5
Federal Advisory Committee Act................................... 5
Unfunded Mandate Statement....................................... 5
Committee Estimate............................................... 5
Budget Authority and Congressional Budget Office Cost Estimate... 5
Changes in Existing Law Made by the Bill as Reported............. 6
Additional Views................................................. 7
COMMITTEE STATEMENT AND VIEWS
The Committee concluded that the requested inquiry was
unwarranted because the facts are already well known and the
courts will resolve the legal effect, if any, of the clerical
error in the Deficit Reduction Act of 2005.
The President was presented with a bill that was certified
by the Speaker of the House and the President Pro Tempore of
the Senate as being an Act of Congress, and he signed it. It
has been widely reported that a Senate clerk made an error in
the bill that was transmitted to the President and that White
House staff noticed the mistake prior to the signing of the
bill.
That error involved the length of time that certain medical
devices can be leased under Medicare. The bill that was
transmitted to the House by the Senate, voted on by the House,
and transmitted back to the Senate, allowed 36-month leases.
Apparently the version voted upon by the Senate had limited the
lease period to 13 months, but a clerk mistakenly had altered
that version to allow 36-month leases before it was transmitted
to the House. After the House voted on the bill as transmitted
by the Senate, a Senate clerk erroneously changed that 36-month
lease period back to 13 months before it was signed by the
Speaker and the President Pro Tempore, without knowledge of the
error. When White House officials noticed the change, they
chose to rely on the signatures on the bill.
Moreover, the Senate was not at all disturbed by the error
of its clerk. It passed by unanimous consent that same day S.
Con. Res. 80, deeming the bill signed by the President to
reflect Congress's intent. In other words, the Senate was
satisfied that in the face of its own error, Congress intended
to allow such leases for 13 months, not 36 months.
Finally, the courts will determine whether the error has
any legal effect. As the Minority have noted in their letters
and statements on this subject, clerical errors happen. This
was nothing but a clerical error. To the extent that such an
error has significant constitutional implications, the courts
are perfectly capable of addressing them. The Committee
believes that further inquiry into this matter by the Congress
will not serve any useful purpose that the courts cannot
address.
PURPOSE AND SUMMARY
House Resolution 752 is a resolution of inquiry introduced
on March 30, 2006, by Government Reform Committee Ranking
Member Henry Waxman, seeking all telephone, email, and other
records from the Executive Office of the President regarding
variations between S. 1932, the Deficit Reduction Act of 2005,
as passed by the House and the bill signed by the President.
BACKGROUND AND NEED FOR LEGISLATION
H. Res. 752 is a resolution of inquiry. The resolution
would request the President to transmit to the House of
Representatives not later than 14 days after the date of
adoption of this resolution, all documents, including telephone
and electronic mail records, logs and calendars, and records of
internal discussions in the possession of the President
relating to the receipt and consideration by the Executive
Office of the President of any information concerning the
variation between the version of S. 1932, the Deficit Reduction
Act of 2005, that the House of Representatives passed on
February 1, 2006, and the version of the bill that the
President signed on February 8, 2006.
House of Representatives rule XIII clause 7 provides that
if the Committee to which a resolution of inquiry is referred
does not act on the resolution within 14 legislative days, a
privileged motion to discharge the Committee is in order on the
House floor. In calculating the days available for Committee
consideration, the days of introduction and discharge are not
counted.
Upon introduction, H. Res. 752 was referred to the
Committee on Government Reform. As of the filing of this
report, sixteen resolutions of inquiry have been introduced in
the House during the 109th Congress. None of the resolutions
have been reported favorably to the House.
SECTION-BY-SECTION
H. Res. 752 would request the President to transmit to the
House of Representatives not later than 14 days after the date
of adoption of this resolution, all documents, including
telephone and electronic mail records, logs and calendars, and
records of internal discussions in the possession of the
President relating to the receipt and consideration by the
Executive Office of the President of any information concerning
the variation between the version of S. 1932, the Deficit
Reduction Act of 2005, that the House of Representatives passed
on February 1, 2006, and the version of the bill that the
President signed on February 8, 2006.
EXPLANATION OF AMENDMENTS
There were no amendments offered.
COMMITTEE CONSIDERATION
On May 4, 2006, the Committee met in open session and
ordered the resolution to be reported unfavorably to the House
by recorded vote.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of bills and joint resolutions
to the legislative branch where the bill or joint resolution
relates to the terms and conditions of employment or access to
public services and accommodations. The Committee finds that
the section does not apply because H. Res. 420 is not a bill or
joint resolution.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee finds that the rule does not
apply because H. Res. 420 is not a bill or joint resolution
that may be enacted into law.
FEDERAL ADVISORY COMMITTEE ACT
The Committee finds that the resolution does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement whether
the provisions of the legislation include unfunded mandates.
The section does not apply because H. Res. 420 is not a bill or
joint resolution that may be enacted into law.
COMMITTEE ESTIMATE
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H. Res. 752. The Committee estimates the costs of implementing
the resolution would be minimal. The Congressional Budget
Office did not provide a cost estimate for the resolution.
BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, the Committee notes that H. Res.
420 makes no changes to existing law.
ADDITIONAL VIEWS
Views of Hon. Henry A. Waxman
I introduced H. Res. 752 to require the Administration to
provide Congress with documents concerning the President's role
in S. 1932, the Deficit Reduction Act of 2005. Constitutional
requirements were not followed when the bill was presented to
and signed by the President. The resolution seeks to find out
why.
On February 8, 2006, President Bush signed into law a
version of S. 1932 that was different in substance from the
version the U.S. House of Representatives passed on February 1,
2006. The House-passed version of the legislation required the
Medicare program to lease ``durable medical equipment,'' such
as wheelchairs, for seniors and other beneficiaries for up to
36 months, while the version of the legislation signed by the
President limited the duration of these leases to just 13
months. As the Congressional Budget Office reported, this
seemingly small change from 36 months to 13 months has a
disproportionately large budgetary impact, cutting Medicare
outlays by $2 billion over the next five years.
Under the U.S. Constitution, a bill cannot become law
unless the same version is passed by both Houses of Congress
and signed by the President. It appears that the Republican
congressional leadership knew that the process of enacting S.
1932 violated this principle. Evidence is mounting that the
President and his staff may have knowingly participated in this
constitutionally infirm process.
It appears that on the morning of February 8--the day the
legislation was signed by the President--the office of House
Speaker Hastert called senior staff at the White House to
notify the file White House that the version of the legislation
that had been sent to the President differed from the version
passed by the House. Despite these communications from the
House Speaker, the President signed the bill on February 8.
This information has serious constitutional implications.
When the President took the oath of office, he swore to
``preserve, protect, and defend the Constitution of the United
States.'' If the President signed S. 1932 knowing its
constitutional infirmity, he would in effect be placing himself
above the Constitution.
The President's decision to authorize the National Security
Agency to conduct warrantless wiretaps despite federal laws
forbidding the practice has raised questions in the minds of
many Americans about whether he considers himself bound by the
laws enacted by Congress. The President's assertion that he can
ignore a recently enacted law prohibiting torture has raised
similar questions.
The evidence that the President signed the Deficit
Reduction Act knowing that it differed from legislation passed
by the House presents an even more fundamental issue:
Does the President consider himself bound by the provisions
of our nation's Constitution?
Given the constitutional issues at stake, it is imperative
that Congress exercise its oversight powers to examine what the
President and his staff knew about the defects in S. 1932 and
how they considered and acted on any such information. The
resolution of inquiry would advance such a congressional
inquiry by requesting that the White House provide Congress
with all documents relating to information the White House had
about the difference between the version of the bill the House
passed on February 1 and the version the President signed on
February 8.
BACKGROUND
Last fall, the House and Senate passed different versions
of the Deficit Reduction Omnibus Reconciliation Act of 2005.
During the House-Senate conference committee on the bill, a
significant last-minute issue arose in the conference involving
how long Medicare should pay for durable medical equipment
(DME). Existing Medicare law provided for payments for DME by
Medicare under a fee schedule for an unlimited period of time.
In an effort to reduce Medicare spending, the conferees
tentatively agreed to reduce the duration of Medicare payment
to just 13 months.
This proposal, however, generated objections from a Senator
and representative from Ohio, where a major manufacturer of
oxygen equipment is located. To accommodate their concerns, the
conference report reduced the duration of Medicare payments for
most DME to 13 months, but directed Medicare to continue to pay
for oxygen equipment for 36 months. The final conference report
was filed on December 19, 2005.
The House passed the conference report on S. 1932 on
December 19, 2005, by a vote of 212-206.
The Senate considered the conference report on December 19,
20, and 21. During that consideration, several points of order
were raised against the report and sustained as violating the
congressional budget process. A motion was made to waive these
points of order but that motion was defeated. The effect was to
defeat the conference report in the Senate.
On December 21, the Senate passed S. 1932 with an amendment
that reflected the contents of the conference report, minus the
items that generated the points of order. The vote in the
Senate was a tie, and Vice President Cheney cast the deciding
vote. This bill, as amended, was then sent back to the House
for its concurrence.
In the process of transmitting the bill, as amended, back
to the House, the Senate clerk made a significant substantive
change to the legislation. This change extended the duration of
Medicare payments for all DME to 36 months, the same time
period provided in the Senate amendment for oxygen equipment.
The Senate clerk realized the mistake,and the Republican House
leadership was informed of the error in January, several weeks before
final House floor action was scheduled to occur.
Such errors in formal messages between the houses are not
unprecedented. They are recorded in the House precedents as
having occurred as long ago as March 13, 1800, and as recently
as July 12, 2005. They are typically handled by sending the
legislation back to the Senate for the mistake to be corrected.
The response by the Republican leadership to the error in
S. 1932, however, was without precedent. It constitutes a
violation of the House Rules and of the Constitution itself.
Apparently concerned that any additional vote in the Senate
could endanger passage of the legislation, the Republican
leadership did not seek to correct the problem. Instead, the
Republican leadership brought the legislation to the House
floor on February 1 without revealing to the Democratic
leadership or the body of the House that the 36-month period in
the legislation before the House did not represent the
legislation passed by the Senate.
On February 1, the House voted on the version of the bill,
as amended, that contained the DME mistake. The vote was
extremely close, 216 to 214. As a result of this vote, the
House and Senate had voted for different bills, the House
having adopted a version that provided for 36 months for DME
and the Senate having adopted a version that provided for 13
months.
Because the budget legislation originated in the Senate,
the official version was returned to the Senate before being
transmitted to the President for his signature. At this point,
a Senate clerk made a second substantive change in the
legislation, revising the House-passed text to reflect the
original Senate-passed amendment. This change restored the 13-
month period for coverage of DME other than oxygen equipment.
On February 7, the budget legislation was presented to the
President. The documents transmitted to the President included
an attestation by House Speaker Dennis Hastert and President
pro tem of the Senate Ted Stevens that the legislation had been
passed by both the Senate and the House.
On the morning of February 8, the White House Office of
Management and Budget notified Republican congressional staff
that the version of the legislation presented to the President
was not the same as the version of the legislation passed by
the House. This information was conveyed to the office of House
Speaker Hastert. The Speaker's chief of staff then called
senior staff at the White House to advise the White House of
this mistake and to request a delay in signing of the
legislation.
According to a recent Wall Street Journal account, the
Speaker's office ``confirmed * * * that the Illinois Republican
had asked the administration to delay proceedings until the
problem could be addressed by the House and Senate.'' Indeed,
the Wall Street Journal reported, ``When the Speaker and Senate
Majority Leader * * * went to the White House for the Feb. 8
ceremony, they expected only a `mock ceremony'--not a real
signing of the parchment that had been presented in error.''
On the afternoon of February 8, despite the communications
from the House Speaker, the President signed the bill. The
version the President signed is the version that reflected the
Senate-passed amendment, not the House-passed text.
CONSTITUTIONAL ISSUES
Some have attempted to suggest the differences between the
versions signed by the President and passed by the House
amounted to a ``technicality.'' But the difference between the
versions of the bill had a substantial budgetary impact,
amounting to $2 billion over 5 years. Two billion dollars in
federal spending is not a mere technicality.
Even more important, there are serious constitutional
concerns with the legislative process on the Deficit Reduction
Act. A number of preeminent constitutional scholars agree that
the Deficit Reduction Act is not a valid law.
Professor Michael Gerhardt of the University of North
Carolina School of Law stated: ``the bill signed by President
Bush was not constitutionally permissible.''
Professor Michael Dorf of Columbia University Law School
said: ``the Constitution specifies that a bill becomes law when
passed by both houses of Congress and signed by the President.
[This bill] was not passed by the House of Representatives.
Thus, it is not law.''
Professor Jamin Raskin of the American University
Washington College of Law stated: ``the Deficit Reduction
Omnibus Reconciliation Act of 2005 may be something but it is
not law within the meaning of the Constitution.''
It is true that the problems with the Deficit Reduction Act
process included clerical errors. But the Republican leadership
did not have to present a bill to the President that was not
passed by both houses. They could have fixed this problem along
the way. And it appears they avoided doing so because the
measure had passed by such slim margins in both the House and
Senate that they feared losing on any additional votes
necessary to correct the error.
Further, the President didn't have to sign the bill. If he
was concerned about its constitutional infirmity he could have
urged congressional leadership to request the bill's return to
Congress so that Congress could address the problems relating
to inconsistency between the House and Senate.
So while the problem may have started with a clerk's error,
it appears to have devolved into a deliberate effort on the
part of Republican congressional leadership and the White House
to ignore constitutional requirements.
THE NEED FOR THE RESOLUTION
Over 100 years ago, the Supreme Court addressed whether a
bill could become law if the version signed by the President
differed from the version passed by the House and Senate. In
the case of Field v. Clark, 143 US 649 (1892), the Court held
that the President could rely on the attestation of the Speaker
of the House and the President of the Senate that the
legislation before the President was the same as the
legislation that passed the Congress. But the Court also
recognized that the outcome would be different if there were a
``deliberate conspiracy'' to ignore the Constitution. As the
Court wrote:
It is said that * * * it becomes possible for the
Speaker of the House of Representatives and the
President of the Senate to impose upon the people as a
law a bill that was never passed by Congress. But this
possibility is too remote to be seriously considered in
the present inquiry. It suggests a deliberate
conspiracy to which the presiding officers, the
committees on enrolled bills, and the clerks of the two
houses must necessarily be parties, all acting with a
common purpose to defeat an expression of the popular
will in the mode prescribed by the constitution
It now appears that the possibility that a President would
knowingly sign legislation that did not pass Congress is no
longer ``too remote to be seriously considered.'' In fact, this
is exactly what appears to have happened when President Bush
signed the Reconciliation Act.
To learn more about this matter, I wrote the President's
chief of staff, Andrew Card, on March 15, seeking information
on the President's knowledge of the bill's constitutional
infirmity. When the Wall Street Journal reported on March 22
that Speaker Hastert's office had informed the White House of
the problems with the legislation, I joined Democratic Leader
Nancy Pelosi in sending a second letter to the White House.
Unfortunately, there has been no White House response.
H. Res. 752 constitutes a step essential to any
congressional review of the role the White House played in the
flawed process on the Deficit Reduction Act. The resolution
simply requires the White House to provide Congress with
information regarding what the White House knew about the
constitutional infirmities of the bill.
One of Congress' main responsibilities is to conduct
oversight to check abuses by other branches of government. As
the Supreme Court has stated:
The power of the Congress to conduct investigations
is inherent in the legislative process. That power is
broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or
possibly needed statutes. It includes surveys of
defects in our social, economic or political system for
the purpose of enabling the Congress to remedy them. It
comprehends probes into departments of the Federal
Government to expose corruption, inefficiency or
waste.\1\
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\1\ Watkins v. United States, 354 U.S. 178,187 (1957).
Yet during the Bush Administration, congressional
Republican leaders have refused to conduct meaningful probes of
significant allegations of wrongdoing by the Bush
Administration.
For example, Congress has failed to examine the role of
White House officials in outing covert CIA agent Valerie Plame,
even though this conduct is thought to have involved the top
aides to the President and Vice President.
Congress has failed to examine the role of the White House
in manipulating intelligence about Iraq's weapons of mass
destruction and ties to al Qaeda.
Congress has failed to conduct a thorough review up the
chain of command to determine the responsibility of senior
Administration officials for the abuse of detainees.
In fact, I am not aware of a single subpoena that
congressional Republicans have issued to the White House during
the entire five and half years of President Bush's tenure.
H. Res. 752 provided an opportunity for Congress to take a
step toward reversing this egregious pattern. Yet instead of
seizing the opportunity, every Republican member of the
Committee who voted on H. Res. 752 voted to report it
unfavorably.
CONCLUSION
It is important to the American people that the President
and Congress protect the integrity of the legislative process.
What went wrong with the Deficit Reduction Act process should
be of concern to all members of Congress, regardless of their
party. We--and the American public--deserve a thorough
explanation of how the President came to sign the Deficit
Reduction Act of 2005.
Henry A. Waxman.