Bush May Have Known of Constitutional Problems With Medicaid Transfer Bill

Last Updated: 8/15/2006

In a letter to the White House, Rep. Henry A. Waxman (D-CA) has requested a response to information that the Speaker of the House called President Bush to alert him that the version of the Deficit Reduction Act of 2005 (DRA) he was about to sign differed from the version that passed the U.S. House of Representatives.

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 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. House Democrats and a number of constitutional scholars argue the DRA is invalid because the President Bush signed a version of the law that had been passed by the Senate but not the House. (For details, click here.)

In his letter to White House Chief of Staff Andrew Card, Waxman, who is the Ranking Minority Member of the Committee on Government Reform, says he is writing “to learn what the President and his staff knew about this constitutional defect at the time the President signed the legislation.… I understand that a call was made to the White House before the legislation was signed by the President advising the White House of the differences between the bills and seeking advice about how to proceed.” Waxman goes on, “If the President signed the Reconciliation Act knowing its constitutional infirmity, he would in effect be placing himself above the Constitution.” (Waxman’s office declined to reveal to ElderLawAnswers the source of Rep. Waxman’s information.)

In an earlier letter to House Speaker Nancy Pelosi (D-CA), Waxman asserted that the DRA as enacted violates the Constitution.

Continuing efforts to achieve a legislative solution to the controversy surrounding the DRA’s enactment, three Democrats on the House Administration Committee sent a letter to Committee Chairman Vernon Ehlers requesting an oversight hearing on the constitutional and procedural problems with the measure.

Meanwhile, John Dean, White House counsel during the Watergate era, says the Republican leadership’s handling of the DRA is “a prototypical example” of how “GOP leaders are simply ignoring fundamental Constitutional requirements.” Dean devotes much of his regular FindLaw column to a discussion of the DRA and the suit by Alabama ElderLawAnswers member attorney Jim Zeigler challenging its constitutionality.

To read Waxman’s letter, click on: www.democrats.reform.house.gov/story.asp?ID=1022

To read the Dean column, click on: writ.news.findlaw.com/dean/20060310.html