49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–457 

REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE OF ADOPTION OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THE 

PRESIDENT RELATING TO THE RECEIPT AND CONSIDERATION BY THE 

EXECUTIVE OFFICE OF THE PRESIDENT OF ANY INFORMATION CONCERNING THE VARIATION BETWEEN THE VERSION OF S. 1932, THE DEFICIT REDUCTION ACT OF 2005, THAT THE HOUSE OF REPRESENTATIVES 

PASSED ON FEBRUARY 1, 2006, AND THE VERSION OF THE BILL THAT 

THE PRESIDENT SIGNED ON FEBRUARY 8, 2006 

MAY 9, 2006.—Referred to the House Calendar and ordered to be printed 

Mr. TOM DAVIS of Virginia, from the Committee on Government 

Reform, submitted the following 

ADVERSE REPORT 

together with 

ADDITIONAL VIEWS 

[To accompany H. Res. 752] 

The Committee on Government Reform, to whom was referred 

the resolution (H. Res. 752) requesting the President to transmit 

to the House of Representatives not later than 14 days after the 

date of adoption of this resolution documents in the possession of 

the President relating to the receipt and consideration by the Executive Office of the President of any information concerning the variation between the version of S. 1932, the Deficit Reduction Act of 

2005, that the House of Representatives passed on February 1, 

2006, and the version of the bill that the President signed on February 8, 2006, having considered the same, report unfavorably 

thereon without amendment and recommend that the resolution 

not be agreed to. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 2 

Section-by-Section .................................................................................................... 3 

Explanation of Amendments ................................................................................... 3 

Committee Consideration ........................................................................................ 3 

Rollcall Votes ............................................................................................................ 4 

Application of Law to the Legislative Branch ....................................................... 5 


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Statement of Oversight Findings and Recommendations of the Committee ...... 5 

Statement of General Performance Goals and Objectives .................................... 5 

Constitutional Authority Statement ...................................................................... 5 

Federal Advisory Committee Act ............................................................................ 5 

Unfunded Mandate Statement ............................................................................... 5 

Committee Estimate ................................................................................................ 5 

Budget Authority and Congressional Budget Office Cost Estimate .................... 5 

Changes in Existing Law Made by the Bill as Reported ...................................... 6 

Additional Views ...................................................................................................... 7 

COMMITTEE STATEMENT AND VIEWS

The Committee concluded that the requested inquiry was unwarranted because the facts are already well known and the courts 

will resolve the legal effect, if any, of the clerical error in the Deficit Reduction Act of 2005. 

The President was presented with a bill that was certified by the 

Speaker of the House and the President Pro Tempore of the Senate 

as being an Act of Congress, and he signed it. It has been widely 

reported that a Senate clerk made an error in the bill that was 

transmitted to the President and that White House staff noticed 

the mistake prior to the signing of the bill. 

That error involved the length of time that certain medical devices can be leased under Medicare. The bill that was transmitted 

to the House by the Senate, voted on by the House, and transmitted back to the Senate, allowed 36–month leases. Apparently 

the version voted upon by the Senate had limited the lease period 

to 13 months, but a clerk mistakenly had altered that version to 

allow 36–month leases before it was transmitted to the House. 

After the House voted on the bill as transmitted by the Senate, a 

Senate clerk erroneously changed that 36–month lease period back 

to 13 months before it was signed by the Speaker and the President Pro Tempore, without knowledge of the error. When White 

House officials noticed the change, they chose to rely on the signatures on the bill. 

Moreover, the Senate was not at all disturbed by the error of its 

clerk. It passed by unanimous consent that same day S. Con. Res. 

80, deeming the bill signed by the President to reflect Congress’s 

intent. In other words, the Senate was satisfied that in the face of 

its own error, Congress intended to allow such leases for 13 

months, not 36 months. 

Finally, the courts will determine whether the error has any 

legal effect. As the Minority have noted in their letters and statements on this subject, clerical errors happen. This was nothing but 

a clerical error. To the extent that such an error has significant 

constitutional implications, the courts are perfectly capable of addressing them. The Committee believes that further inquiry into 

this matter by the Congress will not serve any useful purpose that 

the courts cannot address. 

PURPOSE AND SUMMARY

House Resolution 752 is a resolution of inquiry introduced on 

March 30, 2006, by Government Reform Committee Ranking Member Henry Waxman, seeking all telephone, email, and other records 

from the Executive Office of the President regarding variations between S. 1932, the Deficit Reduction Act of 2005, as passed by the 

House and the bill signed by the President. 


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BACKGROUND AND NEED FOR LEGISLATION

H. Res. 752 is a resolution of inquiry. The resolution would request the President to transmit to the House of Representatives 

not later than 14 days after the date of adoption of this resolution, 

all documents, including telephone and electronic mail records, logs 

and calendars, and records of internal discussions in the possession 

of the President relating to the receipt and consideration by the Executive Office of the President of any information concerning the 

variation between the version of S. 1932, the Deficit Reduction Act 

of 2005, that the House of Representatives passed on February 1, 

2006, and the version of the bill that the President signed on February 8, 2006. 

House of Representatives rule XIII clause 7 provides that if the 

Committee to which a resolution of inquiry is referred does not act 

on the resolution within 14 legislative days, a privileged motion to 

discharge the Committee is in order on the House floor. In calculating the days available for Committee consideration, the days of 

introduction and discharge are not counted. 

Upon introduction, H. Res. 752 was referred to the Committee on 

Government Reform. As of the filing of this report, sixteen resolutions of inquiry have been introduced in the House during the 

109th Congress. None of the resolutions have been reported favorably to the House. 

SECTION-BY-SECTION

H. Res. 752 would request the President to transmit to the 

House of Representatives not later than 14 days after the date of 

adoption of this resolution, all documents, including telephone and 

electronic mail records, logs and calendars, and records of internal 

discussions in the possession of the President relating to the receipt and consideration by the Executive Office of the President of 

any information concerning the variation between the version of S. 

1932, the Deficit Reduction Act of 2005, that the House of Representatives passed on February 1, 2006, and the version of the bill 

that the President signed on February 8, 2006. 

EXPLANATION OF AMENDMENTS

There were no amendments offered. 

COMMITTEE CONSIDERATION

On May 4, 2006, the Committee met in open session and ordered 

the resolution to be reported unfavorably to the House by recorded 

vote. 


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APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of bills and joint resolutions to the legislative 

branch where the bill or joint resolution relates to the terms and 

conditions of employment or access to public services and accommodations. The Committee finds that the section does not apply because H. Res. 420 is not a bill or joint resolution. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE

COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee finds that the rule does not apply 

because H. Res. 420 is not a bill or joint resolution that may be 

enacted into law. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the resolution does not establish or authorize the establishment of an advisory committee within the definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement whether the provisions of the legislation include unfunded mandates. The section 

does not apply because H. Res. 420 is not a bill or joint resolution 

that may be enacted into law. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H. Res. 

752. The Committee estimates the costs of implementing the resolution would be minimal. The Congressional Budget Office did not 

provide a cost estimate for the resolution. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 


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CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that H. Res. 420 

makes no changes to existing law. 


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ADDITIONAL VIEWS 

VIEWS OF HON. HENRY A. WAXMAN

I introduced H. Res. 752 to require the Administration to provide 

Congress with documents concerning the President’s role in S. 

1932, the Deficit Reduction Act of 2005. Constitutional requirements were not followed when the bill was presented to and signed 

by the President. The resolution seeks to find out why. 

On February 8, 2006, President Bush signed into law a version 

of S. 1932 that was different in substance from the version the U.S. 

House of Representatives passed on February 1, 2006. The Housepassed version of the legislation required the Medicare program to 

lease ‘‘durable medical equipment,’’ such as wheelchairs, for seniors 

and other beneficiaries for up to 36 months, while the version of 

the legislation signed by the President limited the duration of these 

leases to just 13 months. As the Congressional Budget Office reported, this seemingly small change from 36 months to 13 months 

has a disproportionately large budgetary impact, cutting Medicare 

outlays by $2 billion over the next five years. 

Under the U.S. Constitution, a bill cannot become law unless the 

same version is passed by both Houses of Congress and signed by 

the President. It appears that the Republican congressional leadership knew that the process of enacting S. 1932 violated this principle. Evidence is mounting that the President and his staff may 

have knowingly participated in this constitutionally infirm process. 

It appears that on the morning of February 8—the day the legislation was signed by the President—the office of House Speaker 

Hastert called senior staff at the White House to notify the file 

White House that the version of the legislation that had been sent 

to the President differed from the version passed by the House. Despite these communications from the House Speaker, the President 

signed the bill on February 8. 

This information has serious constitutional implications. When 

the President took the oath of office, he swore to ‘‘preserve, protect, 

and defend the Constitution of the United States.’’ If the President 

signed S. 1932 knowing its constitutional infirmity, he would in effect be placing himself above the Constitution. 

The President’s decision to authorize the National Security Agency to conduct warrantless wiretaps despite federal laws forbidding 

the practice has raised questions in the minds of many Americans 

about whether he considers himself bound by the laws enacted by 

Congress. The President’s assertion that he can ignore a recently 

enacted law prohibiting torture has raised similar questions. 

The evidence that the President signed the Deficit Reduction Act 

knowing that it differed from legislation passed by the House presents an even more fundamental issue: 


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Does the President consider himself bound by the provisions of 

our nation’s Constitution? 

Given the constitutional issues at stake, it is imperative that 

Congress exercise its oversight powers to examine what the President and his staff knew about the defects in S. 1932 and how they 

considered and acted on any such information. The resolution of inquiry would advance such a congressional inquiry by requesting 

that the White House provide Congress with all documents relating 

to information the White House had about the difference between 

the version of the bill the House passed on February 1 and the 

version the President signed on February 8. 

BACKGROUND

Last fall, the House and Senate passed different versions of the 

Deficit Reduction Omnibus Reconciliation Act of 2005. During the 

House-Senate conference committee on the bill, a significant lastminute issue arose in the conference involving how long Medicare 

should pay for durable medical equipment (DME). Existing Medicare law provided for payments for DME by Medicare under a fee 

schedule for an unlimited period of time. In an effort to reduce 

Medicare spending, the conferees tentatively agreed to reduce the 

duration of Medicare payment to just 13 months. 

This proposal, however, generated objections from a Senator and 

representative from Ohio, where a major manufacturer of oxygen 

equipment is located. To accommodate their concerns, the conference report reduced the duration of Medicare payments for most 

DME to 13 months, but directed Medicare to continue to pay for 

oxygen equipment for 36 months. The final conference report was 

filed on December 19, 2005. 

The House passed the conference report on S. 1932 on December 

19, 2005, by a vote of 212–206. 

The Senate considered the conference report on December 19, 20, 

and 21. During that consideration, several points of order were 

raised against the report and sustained as violating the congressional budget process. A motion was made to waive these points of 

order but that motion was defeated. The effect was to defeat the 

conference report in the Senate. 

On December 21, the Senate passed S. 1932 with an amendment 

that reflected the contents of the conference report, minus the 

items that generated the points of order. The vote in the Senate 

was a tie, and Vice President Cheney cast the deciding vote. This 

bill, as amended, was then sent back to the House for its concurrence. 

In the process of transmitting the bill, as amended, back to the 

House, the Senate clerk made a significant substantive change to 

the legislation. This change extended the duration of Medicare payments for all DME to 36 months, the same time period provided 

in the Senate amendment for oxygen equipment. The Senate clerk 

realized the mistake, and the Republican House leadership was informed of the error in January, several weeks before final House 

floor action was scheduled to occur. 

Such errors in formal messages between the houses are not unprecedented. They are recorded in the House precedents as having 

occurred as long ago as March 13, 1800, and as recently as July 


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12, 2005. They are typically handled by sending the legislation 

back to the Senate for the mistake to be corrected. 

The response by the Republican leadership to the error in S. 

1932, however, was without precedent. It constitutes a violation of 

the House Rules and of the Constitution itself. 

Apparently concerned that any additional vote in the Senate 

could endanger passage of the legislation, the Republican leadership did not seek to correct the problem. Instead, the Republican 

leadership brought the legislation to the House floor on February 

1 without revealing to the Democratic leadership or the body of the 

House that the 36-month period in the legislation before the House 

did not represent the legislation passed by the Senate. 

On February 1, the House voted on the version of the bill, as 

amended, that contained the DME mistake. The vote was extremely close, 216 to 214. As a result of this vote, the House and 

Senate had voted for different bills, the House having adopted a 

version that provided for 36 months for DME and the Senate having adopted a version that provided for 13 months. 

Because the budget legislation originated in the Senate, the official version was returned to the Senate before being transmitted to 

the President for his signature. At this point, a Senate clerk made 

a second substantive change in the legislation, revising the Housepassed text to reflect the original Senate-passed amendment. This 

change restored the 13-month period for coverage of DME other 

than oxygen equipment. 

On February 7, the budget legislation was presented to the President. The documents transmitted to the President included an attestation by House Speaker Dennis Hastert and President pro tem 

of the Senate Ted Stevens that the legislation had been passed by 

both the Senate and the House. 

On the morning of February 8, the White House Office of Management and Budget notified Republican congressional staff that 

the version of the legislation presented to the President was not 

the same as the version of the legislation passed by the House. 

This information was conveyed to the office of House Speaker 

Hastert. The Speaker’s chief of staff then called senior staff at the 

White House to advise the White House of this mistake and to request a delay in signing of the legislation. 

According to a recent Wall Street Journal account, the Speaker’s 

office ‘‘confirmed * * * that the Illinois Republican had asked the 

administration to delay proceedings until the problem could be addressed by the House and Senate.’’ Indeed, the Wall Street Journal 

reported, ‘‘When the Speaker and Senate Majority Leader * * * 

went to the White House for the Feb. 8 ceremony, they expected 

only a ‘mock ceremony’—not a real signing of the parchment that 

had been presented in error.’’

On the afternoon of February 8, despite the communications from 

the House Speaker, the President signed the bill. The version the 

President signed is the version that reflected the Senate-passed 

amendment, not the House-passed text. 

CONSTITUTIONAL ISSUES

Some have attempted to suggest the differences between the 

versions signed by the President and passed by the House amountVerDate Aug 31 2005 07:10 May 13, 2006 Jkt 049006 PO 00000 Frm 00009 Fmt 6604 Sfmt 6602 E:\HR\OC\HR457.XXX HR457

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ed to a ‘‘technicality.’’ But the difference between the versions of 

the bill had a substantial budgetary impact, amounting to $2 billion over 5 years. Two billion dollars in federal spending is not a 

mere technicality. 

Even more important, there are serious constitutional concerns 

with the legislative process on the Deficit Reduction Act. A number 

of preeminent constitutional scholars agree that the Deficit Reduction Act is not a valid law. 

Professor Michael Gerhardt of the University of North Carolina 

School of Law stated: ‘‘the bill signed by President Bush was not 

constitutionally permissible.’’

Professor Michael Dorf of Columbia University Law School said: 

‘‘the Constitution specifies that a bill becomes law when passed by 

both houses of Congress and signed by the President. [This bill] 

was not passed by the House of Representatives. Thus, it is not 

law.’’

Professor Jamin Raskin of the American University Washington 

College of Law stated: ‘‘the Deficit Reduction Omnibus Reconciliation Act of 2005 may be something but it is not law within the 

meaning of the Constitution.’’

It is true that the problems with the Deficit Reduction Act process included clerical errors. But the Republican leadership did not 

have to present a bill to the President that was not passed by both 

houses. They could have fixed this problem along the way. And it 

appears they avoided doing so because the measure had passed by 

such slim margins in both the House and Senate that they feared 

losing on any additional votes necessary to correct the error. 

Further, the President didn’t have to sign the bill. If he was concerned about its constitutional infirmity he could have urged congressional leadership to request the bill’s return to Congress so 

that Congress could address the problems relating to inconsistency 

between the House and Senate. 

So while the problem may have started with a clerk’s error, it appears to have devolved into a deliberate effort on the part of Republican congressional leadership and the White House to ignore 

constitutional requirements. 

THE NEED FOR THE RESOLUTION

Over 100 years ago, the Supreme Court addressed whether a bill 

could become law if the version signed by the President differed 

from the version passed by the House and Senate. In the case of 

Field v. Clark, 143 US 649 (1892), the Court held that the President could rely on the attestation of the Speaker of the House and 

the President of the Senate that the legislation before the President was the same as the legislation that passed the Congress. But 

the Court also recognized that the outcome would be different if 

there were a ‘‘deliberate conspiracy’’ to ignore the Constitution. As 

the Court wrote: 

It is said that * * * it becomes possible for the Speaker 

of the House of Representatives and the President of the 

Senate to impose upon the people as a law a bill that was 

never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It 


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1Watkins v. United States, 354 U.S. 178,187 (1957). 

suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of 

the two houses must necessarily be parties, all acting with 

a common purpose to defeat an expression of the popular 

will in the mode prescribed by the constitution 

It now appears that the possibility that a President would knowingly sign legislation that did not pass Congress is no longer ‘‘too 

remote to be seriously considered.’’ In fact, this is exactly what appears to have happened when President Bush signed the Reconciliation Act. 

To learn more about this matter, I wrote the President’s chief of 

staff, Andrew Card, on March 15, seeking information on the President’s knowledge of the bill’s constitutional infirmity. When the 

Wall Street Journal reported on March 22 that Speaker Hastert’s 

office had informed the White House of the problems with the legislation, I joined Democratic Leader Nancy Pelosi in sending a second letter to the White House. Unfortunately, there has been no 

White House response. 

H. Res. 752 constitutes a step essential to any congressional review of the role the White House played in the flawed process on 

the Deficit Reduction Act. The resolution simply requires the White 

House to provide Congress with information regarding what the 

White House knew about the constitutional infirmities of the bill. 

One of Congress’ main responsibilities is to conduct oversight to 

check abuses by other branches of government. As the Supreme 

Court has stated: 

The power of the Congress to conduct investigations is 

inherent in the legislative process. That power is broad. It 

encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. 

It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to 

remedy them. It comprehends probes into departments of 

the Federal Government to expose corruption, inefficiency 

or waste.1

Yet during the Bush Administration, congressional Republican 

leaders have refused to conduct meaningful probes of significant allegations of wrongdoing by the Bush Administration. 

For example, Congress has failed to examine the role of White 

House officials in outing covert CIA agent Valerie Plame, even 

though this conduct is thought to have involved the top aides to the 

President and Vice President. 

Congress has failed to examine the role of the White House in 

manipulating intelligence about Iraq’s weapons of mass destruction 

and ties to al Qaeda. 

Congress has failed to conduct a thorough review up the chain 

of command to determine the responsibility of senior Administration officials for the abuse of detainees. 

In fact, I am not aware of a single subpoena that congressional 

Republicans have issued to the White House during the entire five 

and half years of President Bush’s tenure. 


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H. Res. 752 provided an opportunity for Congress to take a step 

toward reversing this egregious pattern. Yet instead of seizing the 

opportunity, every Republican member of the Committee who voted 

on H. Res. 752 voted to report it unfavorably. 

CONCLUSION

It is important to the American people that the President and 

Congress protect the integrity of the legislative process. What went 

wrong with the Deficit Reduction Act process should be of concern 

to all members of Congress, regardless of their party. We—and the 

American public—deserve a thorough explanation of how the President came to sign the Deficit Reduction Act of 2005. 

HENRY A. WAXMAN. 

Æ 


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