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Public Citizen v. Clerk

August 11, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


News reports and statements from Congressional leaders have widely reported that the Deficit Reduction Act of 2005 ("DRA" or "Act"), Pub. L. 109-171, 120 Stat. 4 (Feb. 8, 2006), though bearing the signatures of the leaders of the House and Senate and signed into law by the President, was not, in fact, passed by the House and Senate in the same form, as mandated by the bicameral requirement of Article I, Sections 1 and 7 of the United States Constitution.*fn1 Plaintiff Public Citizen challenges the constitutionality of the DRA, and has moved for summary judgment proffering as its undisputed evidence Congressional documents allegedly indicating a significant variation in the bills voted upon by the two houses of Congress. Hence, Public Citizen seeks to prove its case with documents from the proceedings of Congress. But is the Court authorized to make an evidentiary inquiry into the Congressional proceedings giving rise to the Act in order to determine whether the bicameral requirement has been satisfied? That question lies at the heart of this case.

Defendant moves to dismiss the complaint on the ground that the Supreme Court has foreclosed judicial consideration of such evidence -- indeed, of the claim itself -- under the "enrolled bill rule" of Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892), which deems "complete and unimpeachable" the authentication of an enrolled bill by the signatures of the Speaker of the House, the President of the Senate, and the President of the United States.*fn2 In the alternative, defendant contends that plaintiff's motion for summary judgment should be denied because plaintiff's evidence does not, in fact, establish that the House passed a bill that differs from the one passed by the Senate.*fn3 A hearing on the motions was held on July 10, 2006.


The Deficit Reduction Act of 2005 contains ten titles affecting a broad array of interests. These include the Federal Deposit Insurance Reform Act of 2005 (§§ 2101-09), which affects changes in deposit insurance coverage and requires the merger of two insurance funds into a single fund; the Digital Television Transition and Public Safety Act of 2005, which regulates the auctions for spectrum allocated for commercial wireless services (§§ 3001-13); amendments to the Social Security Act effecting broad changes to the laws governing Medicare and Medicaid coverage (§§ 5001-5302, 6001-6087); assistance to areas affected by Hurricane Katrina (§§ 6201-03); the Higher Education Reconciliation Act of 2005 (§§ 8001-24), which affects significant changes to the laws governing student loans; and provisions increasing the filing fees in the federal court system (§§ 10001, 10101). Public Citizen, a not-for-profit consumer advocacy organization, alleges that it is aggrieved by the last of these, § 10001(a), specifically the increase in the civil action filing fee in United States district courts from $250 to $350.*fn4 Although the particular provision creating the issue here lies in another title of the Act, plaintiff contends that the flaw renders the entirety of the DRA unconstitutional.

Plaintiff alleges that an error by the Secretary of the Senate in preparing the budget bill that became the DRA, S. 1932, for transmittal to the House resulted in the House and Senate passing bills with different Medicare provisions, and that the House version differs from that ultimately signed into law as the Deficit Reduction Act of 2005. Plaintiff's complaint and briefs contain detailed allegations of the sequence of events giving rise to the alleged error, but to resolve the present motions, the Court will focus its review on the factual allegations described by plaintiff as material to the constitutional issue. Pl.'s Mot. for Summ. J., Statement of Material Facts ("Pl.'s Statement of Material Facts"); Unofficial Tr. of Mot. Hrg. ("Tr.") at 10-12 (July 10, 2006).

The Act, as signed by the President, states that the duration of Medicare payments for certain durable medical equipment is 13 months. Pub. L. 109-171, § 5101(a)(1), 120 Stat. 4, 37-38. Plaintiff alleges that the 13-month limitation reflects the version of S. 1932 passed by the Senate on December 21, 2005. Compl. ¶ 12; Pl.'s Statement of Material Facts ¶ 3 (citing 151 Cong. Rec. S14337, S14346-47 (Dec. 21, 2005)). Plaintiff further alleges, however, that the version of S. 1932 engrossed by the Senate later that day -- that is, formally printed and signed by the Secretary of the Senate for transmission to the House pursuant to 1 U.S.C. § 106 ("engrossed bill")*fn5 -- erroneously stated a different duration for Medicare payments for the same durable medical equipment -- 36 months. Compl. ¶ 12; Pl.'s Statement of Material Facts ¶ 4 & n.2 (citing S. 1932 as engrossed in the Senate, as reported on the GPO website).*fn6 This error allegedly resulted in the House voting on and passing S. 1932 as engrossed by the Senate with the erroneous 36-month limitation. Compl. ¶ 13; Pl.'s Statement of Material Facts ¶¶ 4-5 (citing 152 Cong. Rec. H68, H69-77 (Feb. 1, 2006) and 152 Cong. Rec. S443 (Feb. 1, 2006)).*fn7 The "enrolled" bill was then prepared -- the version formally printed pursuant to 1 U.S.C. § 106 after passage by both houses -- incorporating the 13-month limitation in section 5101(a). Compl. ¶ 14. The Speaker of the House and President pro tempore of the Senate subsequently signed the enrolled version of S. 1932 as an attestation that it had been passed by both houses of Congress, and this bill was then signed by the President. Compl. ¶¶ 15-16; Pl.'s Mem. at 5 (citing 152 Cong. Rec. S768 (Feb. 7, 2006)). Plaintiff contends that these factual allegations, supported by Congressional documents, prove that the version of S. 1932 signed by the President and passed by the Senate reflects a 13-month period for certain Medicare payments, but that this 13-month period was not in the version of the bill passed by the House. Compl. ¶¶ 14-15; Pl.'s Mem. at 8-10.

Defendant contends principally that the Court may not look beyond the enrolled bill authenticated by the presiding officers of the House and Senate pursuant to Marshall Field. Moreover, according to defendant, if the Court did look beyond the authenticated enrolled bill, the evidence should be construed as showing that the House passed the bill as actually amended by the Senate without the engrossing error -- that is, with the 13-month provision as passed by the Senate. As defendant construes the evidence, the House technically voted on the House resolution accepting the Senate amendment -- House Resolution 653 -- which does not itself specify that the Senate amendment voted on by the House is as reflected in the Senate engrossed bill, rather than as passed by the actual Senate vote. Def.'s Mem., Statement of Genuine Issues ¶ 4. House Resolution 653 merely states: "Resolved, That the House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1932) to provide for reconciliation pursuant to section 202(a) of the concurrent resolution on the budget for fiscal year 2006 (H. Con. Res. 95)."*fn8 152 Cong. Rec. H37 (Feb. 1, 2006). As reported in the Congressional Record, under the heading "Deficit Reduction Act of 2005," the vote took place as follows:

The SPEAKER pro tempore (Mr. Foley). The pending business is the vote on adoption of House Resolution 653 on which the yeas and nays are ordered.

The Clerk read the title of the resolution.

The SPEAKER pro tempore. The question is on the resolution.

This will be a 5-minute vote.

The vote was taken by electronic device, and there were -- yeas 216, nays 214, not voting 3, as follows: [listing of 433 names is then provided in the Congressional Record text]


The SPEAKER pro tempore (during the vote). Members are advised there are 2 minutes remaining.

So the resolution was agreed to.

The result of the vote was announced as above recorded.

A motion to reconsider was laid on the table.

The SPEAKER pro tempore. Pursuant to House Resolution 653, the House concurs in the Senate amendment to ...

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