The Obfuscation Report

A few weeks back, Supreme Court Justice Antonin Scalia described the legal philosophy of his adversaries--those who believe that interpretation of the Constitution should not rely on strict adherence to the words and intent of the document and the framers. “But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism--it is a legal document. It says something and doesn’t say other things.”

That is quite a quote--and it is not a paraphrase. But it comes to mind as one watches the Speaker and the Senate Majority Leader stonewall on the issue of making S. 1932 legal under the Constitution.

To those unfamiliar with the issue and controversy, the House and Senate passed a major budget bill by the narrowest of margins in both chambers, including a tie-breaking vote in the Senate case by Vice President Cheney, but it turned out that the bill passed the House and Senate in different forms.

This was not simply a transcription error, a misplaced comma or a misspelled word--something that would be plenty serious--but a $2 billion discrepancy that arose over a last-minute compromise between the two chambers over the time allowed for the rental of medical equipment for Medicare patients. After the House had passed its version and the discrepancy became known, Speaker Dennis Hastert (R-Ill.) unilaterally changed the House bill to match the Senate’s and then sent it on to President Bush, which he signed to great fanfare.

But a seventh-grade civics student who has done his or her homework would immediately know that what the president signed is not a law. Laws, as Article 1, Section 7 of the Constitution makes clear, must pass both chambers of Congress in identical form and then be signed by the president.

Of course, when Congress makes an error such as this one, it easily can be resolved by having both chambers re-pass the bill in identical form and having the president sign the proper bill. But not in this Congress with these leaders.

Because the two versions are different by a cool $2 billion, and because the more generous House version would be difficult to pass muster with fiscal conservatives, neither Hastert nor Senate Majority Leader Bill Frist (R-Tenn.) wants to go through another vote. So they have decided to ignore the plain letter and intent of the Constitution and declare, with the same sensitivity to the rule of law as the queen of hearts, that it is law, period, because we say so.

The leaders have come up with a belated rationalization: the 1892 Supreme Court ruling by John Harlan in Field v. Clark, which found that the signatures of the Speaker and the president of the Senate are enough to certify the legality of a bill. But any serious reading of the facts surrounding that decision would make clear that this is a different kettle of fish.

Hastert and Frist are unlikely to budge, despite Democrats’ fulminations on the issue. But a suit has been filed by a private citizen contesting the act’s legality. It may get to the Supreme Court. If it does, we will see how strict Scalia’s adherence is to his own professed judicial philosophy--and what term he would apply to leaders who don’t understand that the Constitution says something and doesn’t say other things...