Lawsuits Challenging the DRA

Several federal district courts around the nation have been asked to consider the constitutionality of the Deficit Reduction Act of 2005. The first lawsuit was filed by Alabama-based elder law attorney Jim Zeigler. Zeigler asserts that, because the law was not passed in accordance with constitutionally mandated procedure, its enforceability is in question and he is consequently hindered in his law practice because he is not certain as to which version of the Medicaid law he should refer in advising clients seeking advice on Medicaid. The federal government has filed a motion to dismiss.

Another suit was filed in Washington, D.C., by Public Citizen, a consumer advocacy organization. Public Citizen challenged the increase in civil action filing fees mandated by Section 10001 of the DRA. The U.S. District Court for the District of Columbia granted the federal government’s motion to dismiss. The U.S. District Court for the Southern District of New York also dismissed a similar challenge filed by a student loan company named OneSimpleLoan.

Both courts relied on the Enrolled Bill Rule announced by the U.S. Supreme Court in Field v. Clark, 143 U.S. 649 (1892), in reaching their decisions. The Enrolled Bill Rule essentially states that a court will not review evidence showing a conflict between a bill that contains the signed attestations of the presiding officers of the House and Senate and any other versions of the same bill. Because the DRA contains the relevant attestations, the courts ruled that they were unable to investigate the matter further and dismissed the claims. But as Public Citizen argued in briefs submitted to the federal district court, there is virtually no dispute that the DRA version passed by the House differed from the version signed by the president, and that Field v. Clark does not support the argument that the attestation of a presiding officer itself cures a known defect.

In addition to these suits, eleven Democratic members of the U.S. House of Representatives, led by Congressman John Conyers of Michigan, filed a suit challenging the DRA in the Eastern District of Michigan. Conyers v. Bush, 2:06-cv-11972. The Democrats assert in their complaint that, because the DRA did not actually pass both Houses of Congress, the application of the DRA as law by the president, members of his cabinet and federal corporations disenfranchises the Democrat plaintiffs as members of Congress.