John Dean discusses unconstitutionality of the DRA of 2005
John Dean reviews Mann and Ornstein’s The Broken Branch: How Congress Is Failing America and How to Get it Back on Track on Findlaw’s Writ. Dean also notes the constitutional infirmity of the DRA,passed by the Senate but not the house, which outr gutless Congress is legitimizing by its inaction in challenging the “law”. His commentary concludes:
Mobile, Alabama attorney Jim Zeiglerhas filed a lawsuit seeking a declaratory judgment that the DeficitReduction Act of 2005 violates Article I, Section 7 of theConstitution. Zeigler, who served as a Bush delegate to the RepublicanNational Conventions in 200 and 2004, has sued the Attorney GeneralAlberto Gonzales and the Unites States Attorney for the SouthernDistrict of Alabama, where he filed his lawsuit.
Zeigler’s complaintalleges that he represents senior citizens who seek coverage under theprovisions of the law amended by the Deficit Reduction Act of 2005. Butgiven the conspicuous failure of Congress to honor the Constitution, healleges, he is “unable to counsel his clients” whether they shouldcomply with the old law or the new law, which he believes to beunconstitutional.
No action has yet been taken on Zeigler’slawsuit. But if the court finds he has standing to bring the claim, heshould prevail. The provision on which he suit depends is not atechnicality, but rather, a linchpin of our constitutional system.
Somemay claim that this is a political question, but such rhetoric oughtnot mislead the court; this constitutional provision is black-letterclear, and so is its violation here. Either both houses have passed ona given bill, or they have not. Passing on two different versions ofthe same bill is surely not enough.
The requirement ofbicameralism is as crucial as it is simple. During the debates of theConstitutional Convention, the need for a bicameral (two-chamber)legislature was specifically addressed by James Wilson, who later tobecame a Justice of the U.S. Supreme Court, known for his scholarship.At the nation’s founding, Wilson observed: “Despotism comes on mankindin different shapes. . . If the Legislative authority be notrestrained, there can be neither liberty nor stability; and it can onlybe restrained by dividing it within itself, into distinct andindependent branches. In a single house there is no check, but theinadequate one, of the virtue & good sense of those who composeit.”
In short, ignoring the Constitution’s requirement thatlegislation pass if, and only if, it commands the votes of concurrentmajorities of both houses of Congress is nothing short of GOPdespotism. The broken branch needs fixing so we must all hope that thefederal courts step in to halt what the President failed to put an endto: self-styled lawmaking outside the rules of the Constitution.