Bush, Courts Ignored Constitution’s Bicameralism Requirement

Some constitutional provisions are open to interpretation. One constitutional requirement that is not ambiguous, however, is the requirement that every bill pass both houses of Congress before it can be presented to the President and become law. The Deficit Reduction Act of 2005 (DRA) was presented to the President in violation of that requirement: The Senate passed one version of a bill, the House another, and then the Senate’s version was presented to the President, who signed it on February 9, 2006. Under the Constitution, that bill has not become a law.

Public Citizen challenged the validity of the DRA in a lawsuit last year; the district court dismissed our case. The court held that a case from 1892 called Marshall Field & Co. v. Clark precluded courts from questioning the validity of an enrolled bill signed by the House and Senate leaders and presented to the President. Yesterday, the U.S. Court of Appeals for the D.C. Circuit affirmed that decision. Two other district courts have rejected challenges similar to ours.

These decisions and, even more so, the underlying facts surrounding passage of the DRA, should disturb anyone who believes in the principles established by our Constitution. If congressional leaders can knowingly flout a basic constitutional requirement (and the facts show that the leaders did so knowingly), and the President can sign into law a bill that he knows was not enacted in accordance with constitutional requirements (and the facts show that the White House did know), and the courts refuse to enforce that constitutional requirement (as several have done), what does that say about the primacy of the Constitution? What does that say about the effectiveness of “checks and balances” in our government today? What does that say about our leaders’ respect for the law? Nothing good.