ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President.


A constitutional law expert examines the legal hurdles facing those challenging the Deficit Reduction Act of 2005 (DRA). He concludes that the courts have jurisdiction in the matter and they should exercise it.

As previously reported, separate suits have been filed by Alabama Attorney Jim Zeigler and the consumer group Public Citizen claiming that the DRA is not valid law because the version of legislation that President Bush signed was passed by the Senate but not the House.

In a series of columns on the suits, Vikram David Amar, a professor of law at the University of California's Hastings College of Law and co-author of a major constitutional law casebook and several volumes on federal practice and procedure, discusses what he calls "perhaps the highest hurdle facing the plaintiffs in these cases -- the so-called 'political question' doctrine" – that is, whether or not the challenge to the DRA is a "non-justiciable" question into which judges believe they cannot inquire without upsetting the delicate separation-of-powers balance.

Amar examines whether an 1892 supreme Court decision in Marshall Field v. Clark, where it was alleged that a bill signed by the president had omitted a section that had been included in the version approved by both the House and the Senate. Resting its ruling on an empirical sense of the undependability of the legislative Journals of the day, the Court ruled that the case did not present a question amenable to judicial review.

Amar explores how changes in both the technological and legal landscape have blunted Field's impact. Most importantly, the Court narrowed the Field ruling a decade and a half ago in United States v. Munoz-Flores.

He also reiterates that because the Deficit Reduction Act is a spending measure, "the present case involves more than just Article I, Section 7's bicameralism requirements -- it also involves Article I, section 9's so-called Appropriations Clause, which says that '[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .' " He calls the Appropriations Clause "a much more important" constitutional provision that the case implicates.

The bottom line, Amar concludes, "is that the courts -- even the lower courts -- should not decline to entertain the controversy altogether. Nothing in constitutional doctrine or common sense requires complete abstention here. The courts have jurisdiction, and they ought to exercise it."


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