The Threshold Hurdles in the Lawsuit Alleging that the President Signed a Budget Bill the House Never Passed:
Part One in a Series

By VIKRAM DAVID AMAR

Friday, Mar. 31, 2006

When is a bill sent to the President by Congress and signed by him not a "Law of the United States" within the meaning of the Constitution? For one thing, when the measure did not actually pass both the Senate and the House. That is the seemingly compelling -- if a bit eighth-grade civics -- argument being pressed in a federal lawsuit challenging the validity of the so-called "Deficit Reduction Act of 2005" approved by President Bush on February 8, 2006. In this series, I will examine the threshold hurdles this lawsuit faces.

What Led to the Suit - A Disregard for Constitutional Niceties

According to newspaper reports (and also a prior column by John Dean), the Senate version of the legislation -- which passed the upper house only by virtue of Vice President Dick Cheney's tie-breaking vote -- provided Medicare reimbursements for home medical equipment rentals for only up to 13 months. Although Republican leaders expected a majority of the House to accede to this conservative cap, the legislative version actually voted on by the House (and approved there by a razor thin 216-214 margin) provided such reimbursements for up to 36 months - a figure apparently included in the bill as a result of a legislative clerk's mistake. The House version would require about $2 billion more in federal outlays than the Senate version.

Rather than fix the mistake and have the House revote -- this time on a bill substantively identical to the Senate's -- which has been the protocol in past such situations, House and Senate leaders apparently decided simply to physically alter the already-voted upon House version to bring it in line with the Senate's rendition. The Speaker of the House and the President Pro Tempore of the Senate then certified to President Bush that this version, containing the 13-month provision, had passed both houses. President Bush, after having been made aware of the debacle, nonetheless signed the measure.

That prompted Jim Zeigler, a lawyer from Mobile, Alabama who practices elder law, to file suit in federal district court seeking a declaration that the Deficit Reduction Act of 2005 is not a valid law.

The First Threshold Hurdle - Standing

If a court entertains the merits of Zeigler's suit, and if he is demonstrably factually correct (as numerous press accounts seem to conclude) that the version actually voted on by the House was different from the one signed by the President, then he should undoubtedly win. The requirement under Article I, section 7 of the Constitution that both the House and the Senate pass a bill - the same bill, with the same substance -- before it can become law is, as Zeigler has put it, basic "con law 101." Put simply, bicameralism is a prerequisite to federal lawmaking.

The trickier question is whether a federal court will ever look at the merits of Zeigler's claim, or instead decide that the matter is not amenable to judicial resolution. The phrase federal courts use when they want to stay out of a mess like this is that the dispute is not "justiciable."

One question the lawsuit surely raises right now is whether Zeigler has constitutional "standing" to pursue his claim. Standing requires, among other things, that a plaintiff in federal court allege a personalized "injury in fact" rather than a "generalized grievance." In other words, Zeigler has to show that the federal enactment actually harms him, or will harm him, personally.

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In his original complaint, Zeigler stated that he is "personally and substantially hindered in his legal practice because he is uncertain as to whether to proceed under the previous law, which is constitutional, or the Deficit Reduction Act of 2005, which he alleges is unconstitutional, unenforceable and null." For this reason, says Zeigler's complaint, he is "unable to counsel his clients."

Is An Inability To Give Clients Definitive Legal Advice A Sufficient Injury For Standing In Federal Court?

Does this claim of injury suffice? On the one hand, injury to one's employment certainly can in some instances count as "injury in fact" for standing purposes. Thus, a would-be lawyer who claims that a racially discriminatory bar exam unconstitutionally prevents him from plying his chosen trade would have standing to challenge the test.

On the other hand, the fact that a legislative action complicates a lawyer's ability to give clear legal advice cannot always confer standing upon the lawyer; otherwise every law whose constitutionality is remotely open to question could be challenged by a lawyer suing in his or her own name. The lawyer's clients who are more directly affected by the legal uncertainty - and thus more naturally the persons we would expect should be suing -- would rarely be involved in the cases (except, perhaps, if their money were needed to finance the litigation).

If Zeigler's claim of standing were valid, could his argument be extended to law professors? As someone who teaches his students about constitutional law - about what Congress can and cannot do - I am professionally "affected" every time Congress engages in an unconstitutional action, insofar as that action may complicate the lessons I teach my students. But could that mean I have standing to complain about such an action?

On balance, I think Zeigler's current claim that he is injured because the Deficit Reduction Act of 2005 makes his job harder is a pretty tough sell. Indeed, uncertainty and complexity in the law are the bread and butter of the legal profession, often redounding to the economic benefit of lawyers. (That has always been my sense for why tax laws are needlessly complex.)

So what is Mr. Zeigler's fix? One remedy would be to include some elder clients who are actually economically affected by the new measure as additional plaintiffs in Zeigler's lawsuit. These seniors would simply have to allege (as many could) that they would fare better if the Deficit Reduction Act of 2005 were eliminated and the policies embodied in earlier statutes were continued in force.

An Exotic Possibility - Taxpayer Standing

Another, more creative but perhaps intriguing, possibility would be for Mr. Zeigler to assert standing as a taxpayer. So-called "taxpayer standing" is a very narrow exception to the ban on "generalized grievances." To challenge a federal action in his capacity as a federal taxpayer, a plaintiff needs to satisfy two requirements.

First, because a taxpayer alleges injury based on the mere fact that he pays taxes, the Court has ruled that a taxpayer will be a proper party to challenge the constitutionality of Congressional action only when Congress is purporting to exercise its powers under the Taxing and Spending Clause of the Constitution.

Second, the Court has required, ever since the Flast v. Cohen case, the taxpayer to "show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Article I, section 8."

As for the first requirement, although there has been some complexity in cases like Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., where a plaintiff challenged a federal executive branch action authorized by Congress rather than a legislative Act on its face, in the present case Mr. Zeigler is most assuredly challenging the Deficit Reduction Act itself and the actions of Congressional leaders -- specifically their decision to send the Senate bill to the President even though it had not been approved by the House. Moreover, the Deficit Reduction Act measure is certainly premised in Congress's "spending clause" power under Article I.

As for the second requirement, the Supreme Court has thus far tended to limit challenges to Congressional spending to claims brought under the Establishment Clause of the First Amendment, on the theory that the Establishment Clause was intended to be a specific or particular constraint on spending. Notwithstanding the Court's reluctance to expand taxpayer standing to lots of claims, I think Mr. Zeigler's complaint can invoke another constitutional provision that should suffice.

A Potential Option For Standing Under The Appropriations Clause?

Article I, section 9, clause 7 says: "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . ." This seems to be as specific a provision as one could imagine constraining Congress's spending power - the federal government cannot spend except pursuant to a "Law". And, of course, Mr. Zeigler's argument is precisely that because the measure signed by the President did not satisfy Article I's bicameralism requirement, it is not "Law" at all. Thus, although the complaint doesn't do so explicitly, it alleges a violation of the so-called Appropriations Clause.

If the Establishment Clause is considered a particular and distinctive limit on spending, how could the Appropriations Clause not be?

I have no clue how receptive federal courts will be to this attempted expansion of taxpayer standing, but I think there are good reasons to embrace it.

What if the Deficit Reduction Act of 2005 did not replace any earlier statutes whose ongoing provisions had benefited particular individuals (who, as noted above, may join Zeigler as plaintiffs)? Consider a measure (not passed by the House but sent to and signed by the President anyway) that simply taxed all Americans $1 and gave the proceeds to me. Such a measure would clearly violate bicameralism (along with other things like the requirement that spending be for the "general welfare"). And yet unless we expand taxpayer standing to include more than simply Establishment Clause claims, it is hard to imagine who would have standing to challenge such an outrageous action.

The Tougher Hurdle - The Political Question Doctrine

Even if Zeigler establishes standing, he will have to overcome the application of an 1892 case, Field v. Clark, which seems to characterize disputes like his as "political questions" not appropriate for the federal courts. In Part Two of this series, I will discuss the Field case and whether it was wrong when decided, mention possible logistical changes that may have undermined its factual foundations, and analyze two important Supreme Court decisions that have rendered it doctrinally untenable. Only after we examine all that can we know how a lower federal court, and the Supreme Court itself, should respond to Zeigler's lawsuit.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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