Q: When is a Bill Signed by the President Not a Law?

Marty Lederman marty.lederman at comcast.net
Fri Feb 10 08:29:37 PST 2006


A. When it has not been passed by both the House and the Senate. U.S. Const. 
Art. I, sec. 7, cl. 2.

Civics 101 lesson:

On Wednesday, the President signed S. 1932, the Deficit Reduction Act of 
2005. It is, by all accounts, an extremely significant piece of legislation, 
which sharply divided the legislature. The bill passed the Senate back in 
December only on the tie-breaking vote of the Vice President. It then went 
to the House, which purported to agree to the Senate amendment by a vote of 
216 to 214 on Febriary 1st. In other words, it doesn't get much closer than 

But there's a catch -- namely, that the House apparently did not vote for 
the bill that had passed the Senate.

Section 5101(b)(1)(B) of the bill would limit Medicare payment for oxygen 
equipment to a period of 36 months, after which the supplier of the 
equipment must transfer title to the recipient. This had been a 
controversial provision. Under pre-existing law, Medicare paid for oxygen 
supply, tanks and maintenance for as long as an eligible patient uses them; 
and the average usage period is 30 months. The House-Senate Conference had 
capped payments at 18 months, which caused Sen. George Voinovich, R-Ohio, 
"normally an immovable budget hawk," to threaten to derail the entire $40 
billion deficit-cutting bill. Hence, the 36-month solution in the Senate 

For (almost) all other "durable medical equipment," however (e.g., 
wheelchairs), section 5101(a)(1) of the Senate bill capped payment at 13 

Here's the rub: When the bill was prepared for consideration by the House, 
the "36 months" language for oxygen tanks in section 5101(b) was included, 
but that same language was also inserted into section 5101(a), so that the 
House bill provides for reimbursement for other durable medical equipment 
for the same 36 months as is available for oxygen tanks. (This blurb in 
yesterday's Washington Post tells the story, but mistakenly refers to the 
discrepancy as appearing in the oxygen-tank provision, rather than in the 
catch-all provision.)


The Post story reports that "when the mistake was discovered, a . . . clerk 
scribbled out '36 months' and wrote in '13 months.'" And, apparenty, the 
enrolled version that was transmitted to the President tracks the Senate 

But the House never passed the Senate version.

Article I provides that, in order to become a law, a "Bill . . . shall have 
passed the House of Representatives and the Senate." (For those of you 
needing a refresher course, listen here.) Has S.1932, which the President 
signed on Wednesday, passed the House of Representatives?

If not, what comes of it?

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