It’s the Constitution, stupid

It’s one of those items that gets only a few paragraphs in most news accounts, and several describe it as a “clerical error,” so it’s easy for us to overlook. But when President Bush signed the Deficit Reduction Act of 2005 last month, it was yet another indication of how fast and loose the current administration has been playing with the Constitution.

It turns out that the version of the bill he signed never passed both the House and the Senate, a requirement any grade-school civics student—or former viewer of Schoolhouse Rock who can still sing “I’m Just a Bill”—can recite as a necessary step in lawmaking. The version the president signed was passed by the Senate only.

The bill has been controversial from the get-go. Among other things, it cuts funding for student loans, raises (yet again) work requirements for welfare and reduces the number of people eligible for Medicaid. In short, like most so-called conservative “cost-cutting” measures, it eliminates or drastically reduces education and social programs.

The devil is in the details here. The Senate version of the bill—the one the Bush administration has decided is a law—was passed on a tiebreaker vote by Vice President Dick Cheney. But when the bill was being sent to the House, a Senate clerical error changed a limit on the use of Medicare payments to lease medical equipment (oxygen tanks and wheelchairs, pretty basic stuff for the sick and disabled) from 13 months to 36 months. With that compassionate addition of almost two years in Medicare-paid lease time, the House passed the bill—by two votes.

But once confronted with two different versions of the Deficit Reduction Act of 2005, the Bush administration decided it liked the Senate version better. Rather than sending the two versions back for reconciliation—which is what the Constitution requires—the president signed into “law” that version.

Whether it’s really a law is up for discussion. Some of the House’s Democrats have asked the president to explain whether he knew he was signing a bill that hadn’t been passed in their chamber, and both a watchdog group, Public Citizen, and a Republican lawyer from Alabama who specializes in the legal issues surrounding the care of the elderly have filed lawsuits claiming that the law is unconstitutional.

The Republicans, however, are pointing to an 1892 Supreme Court decision (Field v. Clark) that states that as long as the speaker of the House and the president of the Senate certify that the bill has been passed by both houses, it is in fact passed. This argument probably doesn’t hold much water; the administration was aware of the difference and selected which version it preferred—the Senate’s.

Why make such a big deal over what seems like an exercise in civics? Simple. Because it is more than just the latest example of shortcuts and end runs that the current administration loves to make to get around the law.

It’s one thing to play legal word games with the Geneva Conventions. While that’s certainly abhorrent—and patently unlawful—it doesn’t strike at the heart of America in quite the same way that messing with the Constitution does.

From the nasty business of warrantless spying on American citizens to suspension of habeas corpus for prisoners in the “war on terror” or the recent addendum the president added when signing the extension of the Patriot Act (essentially saying, “Yes, it’s the law, but if I don’t want to follow it I won’t”), this administration has been doing all it can to expand the powers of the president beyond those granted in the Constitution.

It’s no secret that Vice President Cheney—who served in Nixon’s administration when the whole concept of an “imperial presidency” was first attempted and then abandoned in a flurry of criminal indictments—thinks that the president should have more powers. The problem isn’t what he—or anyone else in the White House—thinks; it’s in what they’re doing.

The Constitution of the United States is non-negotiable. If we can’t agree on that, we don’t have a country left.

The whole point of having a Constitution is to govern our affairs—all of them. This recent slight, in terms of import, may seem like a small thing (though an entire essay might be written on the morality of cutting the budget deficit on the backs of the poor and sick). But “small things”—like failing to follow the well-known if convoluted process through which a bill becomes a law or deciding that it’s too much trouble to go to court for a warrant—inevitably lead to big things.

Or, as one of my elderly relatives would say, “While you’re worried about fire and flood, the termites are taking your house down.” The same is certainly true of our country’s current state: Terrified of a threat from outside, we ignore the destruction from within of the very nation we so want to protect.

It’s true that past administrations, in time of war, have taken it upon themselves to suspend the constitutional protections we—apparently— take for granted. Look at the list: John Adams’ Alien and Sedition Acts, which punished anti-government speech as traitorous—and wouldn’t Fox News just love to get rid of its competition so easily? Abraham Lincoln’s suspension of habeas corpus during the Civil War. Woodrow Wilson’s invocation of security to imprison critics of World War I, including Eugene V. Debs. And, of course, no Californian can forget Franklin Roosevelt’s decision to lock up Japanese-Americans during World War II, citizens and resident aliens alike. We’ve got a lengthy history of scaring ourselves into doing the wrong thing.

Electronic spying on citizens isn’t exactly a new idea, either. J. Edgar Hoover liked it a lot, and both the Johnson and Nixon administrations used it to track so-called subversives. Like the Bush administration, they tried to keep it on the down-low; even über-patriots get a bit twitchy about civil liberties, as they—and we—ought.

It shouldn’t take a lawsuit to make the government play by the rules. After all, it’s not like the rules are so hard to understand. Generations of sixth-graders have been able to grasp the convoluted process by which a bill becomes law—often, by singing a silly song. And there’s another Schoolhouse Rock song that bears on the issue: “Three-Ring Government.” While not as catchy as “I’m Just a Bill,” it delineates the separation of powers: “No one part can be / more powerful than any other.” Yep, government’s a three-ring circus, all right. But it’s our three-ring circus.

It might be a pain in the ass for the president to have to jump through all the constitutional hoops required to get a warrant. It’s certainly a pain in the ass to jump through the constitutional hoops necessary to make a law—just watch C-SPAN sometime, if you can stand it. It would be a lot easier, as the president himself has noted, if he were a dictator.

But it wouldn’t be very American.