Constitutional Issues Surrounding the DRA

Article I, Section VII of the U.S. Constitution states that a bill proposed in the U.S. Congress shall not become law unless the bill first passes both chambers. If passed by both chambers, the bill will become law if it is signed by the president, or, if vetoed, two thirds of both chambers pass the bill after the vetoed bill is returned.

It is not certain, however, whether this simple, straightforward process was honored in the course of the enactment of the DRA. Which part? The part which requires that the bill first pass both chambers of Congress. It appears that a provision of the DRA relating to the duration of Medicare’s coverage of durable medical equipment differed in how it appeared in the versions of the bill passed by the House and Senate.

Specifically, Section 5101 of the version passed by the Senate provided that the federal government would pay for the rental of certain durable medical equipment for 13 months, after which the equipment would become the property of the Medicare beneficiary. But before the Senate’s version was submitted to the House for a vote, the “13" month figure was allegedly changed by the Senate clerk to “39.” The bill subsequently approved by the House contained the 39 figure. The bill was then returned to the Senate for submission to the president, at which point the Senate’s clerk allegedly changed the “39" back to the “13." The bill was then presented to the president, and contained the attestations from both the Speaker of the House of Representatives Dennis Hastert (R-Ill.) and Senate President Pro Tem Ted Stevens (R-Alaska) that the bill passed both chambers of Congress.

It appears Speaker Hastert’s office was aware of the discrepancy, in spite of the Speaker’s attestation that the bill presented to the president was approved by the House. It has been reported that the speaker’s office contacted the White House prior to the DRA signing ceremony on February 8th to advise the president’s staff of the problem. Whatever was communicated between Speaker Hastert’s office and the White House, the following is certain: a) President Bush signed the DRA anyway; and b) several lawsuits have been filed challenging the constitutionality of the DRA on the basis of the failure of Congress to abide by constitutional procedure.