Amicus Curiae Brief of Members of Congress in Second Circuit Case re Constituti

Nos. 06-2770-CV, 06-2994-CV, and 06-3770-CV
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
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OneSimpleLoan, et al.,  Plaintiffs-Appellants, v.
U.S. Secretary of Education, et al., Defendants-Appellees.
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On Appeal from the United States District Court
for the Southern District of New York
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BRIEF AMICI CURIAE ON BEHALF OF REPRESENTATIVES HENRY A. WAXMAN, NANCY PELOSI, JOHN D. DINGELL, CHARLES B. RANGEL, PETE STARK, GEORGE MILLER, JAMES L. OBERSTAR, LOUISE MCINTOSH SLAUGHTER, SHERROD BROWN, BENNIE G. THOMPSON IN SUPPORT OF ONESIMPLELOAN AND REVERSAL
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Steven A. Hitov*
Jane Perkins
NATIONAL HEALTH LAW PROGRAM
Attorneys for Amici
1101 14th Street N.W., Suite 405
Washington, DC 20005
(202) 289-7661

* Counsel of record

CORPORATE DISCLOSURE STATEMENT 
Pursuant to Fed. R. App. P. 26.1, the undersigned counsel for Amici Curiae states that there is no parent corporation, or publicly held company that owns 10% or more of the stock, of any of the Amici herein.

 

The parties have consented to the filing of this brief.
The Amici Curiae are elected members of the United States House of Representatives. Each has taken an oath to ?preserve, protect, and defend the Constitution of the United States,? as have all other members of Congress and the President.
One of the most important responsibilities of the amici is to represent the will of the people by voting on legislation that is brought before them. Amici and the other members of the House of Representatives voted on a version of the Deficit Reduction Act of 2005, S. 1932, on February 1, 2006. S. 1932 is comprehensive legislation, affecting a number of government programs, from housing and education to Medicare and Medicaid, and including significant appropriations. The version of S. 1932 that was passed by the Senate and signed by the President on February 8, 2006 is different from the version that passed the House.
Representative Henry A. Waxman (CA) is the Ranking Minority Member of the House Committee on Government Reform. Representative Nancy Pelosi (CA) is the Minority Leader of the House of Representatives. Representative John D. Dingell (MI) is the Ranking Minority Member of the House Committee on Energy and Commerce. Representative Charles B. Rangel (NY) is the Ranking Minority Member of the House Committee on Ways and Means.

 

Representative Pete Stark (CA) is the Ranking Minority Member of the House Ways and Means Health Subcommittee. Representative George Miller (NY) is the Ranking Minority Member of the House Committee on Education and the Workforce. Representative James L. Oberstar (MN) is the Ranking Minority Member of the House Committee on Transportation and Infrastructure. Representative Louise McIntosh Slaughter (NY) is the Ranking Minority Member of the House Committee on Rules. Representative Sherrod Brown (OH) is the
Ranking Minority Member of the House Energy and Commerce Health Subcommittee. Representative Bennie G. Thompson (MS) is the Ranking Minority Member of the House Committee on Homeland Security.
SUMMARY OF ARGUMENT 
The House and Senate passed different versions of S. 1932. The version of the bill signed by the President differed from the version passed by the House. The Republican leadership of the House and Senate knew, before the President signed the enrolled bill, that the enrolled version did not reflect what the House had passed. The President was aware that the legislation presented to him had not been passed by the House; yet, he signed it as the Deficit Reduction Act of 2005. The process nullified the votes of the amici, as they were never presented with an opportunity to vote one way or the other on the version of the bill that is now purportedly the law of the land.
There are recognized methods of resolving differences when the House and Senate pass different versions of a bill. These accepted protocols were not used when the House and Senate passed different versions of S. 1932 and the President signed a version that was not passed by the House.
 ?A bill cannot become a law of the land until it has been approved in identical form by both Houses of Congress.? Charles W. Johnson, How Our Laws Are Made, H.R. Doc. No. 108-93, at 50 (2003). The Deficit Reduction Act of 2005 violates Article I, § 7 of the United States Constitution, which requires both houses of Congress to pass the same legislation before it can be signed into law by the President. The Deficit Reduction Act of 2005 also violates Article I, § 9 of the United States Constitution, which provides that money may be drawn from the Treasury only in consequence of appropriations made by the laws of Congress.
STATEMENT OF THE FACTS 
The ?facts are already well known.? U.S. House of Representatives Committee on Government Reform, Adverse Report together with Additional Views to accompany H. Res. 752 at 2 (May 4, 2006) (Exhibit A, hereto). We will summarize them here.
The House of Representatives and the Senate considered the Deficit Reduction Act of 2005, S. 1932, during the fall of 2005. The two chambers passed different versions of the legislation, so a House and Senate conference committee was formed to reconcile the differences.
The conference committee made a number of changes to the legislation. Among other things, the committee addressed Medicare payments for durable medical equipment (DME) and oxygen equipment. Existing law allowed payment for an unlimited period of time. To reduce Medicare spending, the conferees tentatively agreed to reduce the duration of Medicare payments to 13 months, after which the responsibility for payment would pass to the Medicare beneficiary. Senator George Voinovich and Representative David Hobson objected to the inclusion of oxygen equipment in the payment limitation. See Jeffrey Young & Patrick O?Connor, Small Typo, Big Headache, The Hill, Feb. 9, 2006. The conferees agreed to reduce the duration of Medicare payments for DME to 13 months and provided that Medicare would pay for oxygen equipment for 36 months.
On December 19, 2005, the conference report was submitted to the House and Senate for a vote. See H.R. Conf. Rep. 109-362 (2005), reprinted in 151 Cong. Rec. H12641 et seq. (Dec. 19, 2005). The House passed the conference report by a vote of 212 to 206 (Roll Call No. 670); 151 Cong. Rec. H12276-77 (Dec. 19, 2005). All of the amici participated in the consideration of the conference report and voted.
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