Congressman Asserts Asset Transfer Law is Unconstitutional

Congressman Henry Waxman (D-CA) is asserting that the Deficit Reduction Act of 2005 violates the Constitution because the version of the bill passed by the House of Representatives was different from the version passed by the Senate. In a detailed letter to House Minority Leader, Nancy Pelosi (D-CA), Waxman quotes several constitutional scholars who argue the law is invalid. Waxman also charges that the Republicans in the House were aware of the difference in the two bills for weeks but did not correct the mistake because they did not want to risk another vote.

The Act, which passed both the House and Senate by razor-thin margins, would place severe new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care, among other cutbacks to social programs.

The Senate passed the bill in December 2005. When the measure was sent to the House, a Senate clerk accidentally made a significant change to the legislation. (For details on how the bills differ, click here.) Waxman claims the Senate clerk realized the mistake and informed the Republican leadership several weeks before a vote in the House was scheduled to take place, but instead of sending the legislation back to the Senate to correct the error, the leadership did nothing. The House passed the legislation with the mistake in it. The bill was then sent back to the Senate, where a clerk corrected the mistake and then sent it to the President, who signed it on February 8, 2006.

The Bicameral Clause of the Constitution requires that before a bill can be enacted into law by the President, it must pass both the House and Senate in identical form. The constitutional scholars quoted in Waxman's letter maintain that the bill signed by President Bush did not meet this requirement, so it is unconstitutional. According to one scholar, the requirement that bills be identical is necessary to provide checks on each branch of government.

Senate and House Democrats are currently reviewing their options, but in the meantime an Alabama elder law attorney Jim Zeigler has filed a lawsuit in the U.S. district court challenging the law's constitutionality.

To read Waxman's letter in PDF format, click the link below.
(If you do not have the free PDF reader installed on your computer, download it here.)

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