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By John M. Bigler Welcome back the eternal optimist. As most of you who read my January and February articles already know, President George Bush signed the Deficit Reduction Act of 2005 (DRA) on Feb. 8. As I explained, this is a mean-spirited law that looks to cut back on services to older and disabled Americans so as to make a dent in the spiraling federal deficit, which has gone out of control since President Bush was supposedly elected in 2000. However, I shouldn't have been so quick to feel defeated by the new law. As it turns out, there's a very good chance the DRA is, in fact, unconstitutional. Secondly, it also appears that if it does go into effect the New York State Legislature will most likely pass it with an effective date later than Feb. 8, 2006.
However, a lawsuit has been brought challenging the constitutionality of the DRA and many constitutional experts believe it will succeed. There is a problem as far as standing (the right of the plaintiff to bring an action) and whether or not the Supreme Court, when this case eventually ends up before it, will find that the challenge lacks merit because the courts do not have the right to interfere with legislative or executive actions. Of course, the major concern is that with two of President BushÕs appointees now on the Supreme Court, the decision may be as unbiased as the decision regarding the Florida voting in the Gore-Bush election of November, 2000. In any event, there is significant hope and we will just have to wait and see.
Ideally, once the case is heard initially, a federal district court judge will issue a temporary restraining order to prevent DRA from taking effect until the matter has been decided. Clearly, the Bush administrationÕs main concern is that if this law must be voted on again, it may well be defeated. As I mentioned earlier, it was passed by only 51-50 in the Senate and 216-214 in the House, with a number of members indicating that they really didn't understand the law. Given the negative publicity DRA has received in the last few months, I'd think that there's a very good possibility that this time a vote would come out differently.
A second bit of good news comes from Albany, where the New York State Legislature has always been more favorably inclined toward older and disabled New Yorkers. Damaging provisions proposed by Governor George Pakaki for the state budget have not been passed. They include the introduction of a period of ineligibility when transferring assets for community Medicaid and the elimination of spousal refusal. The State Legislature has also held off on enacting the Deficit Reduction Act until the outcome of the lawsuit becomes clearer. Therefore, although it is an extremely uncertain time, it appears that at present one can still plan under the old Medicaid laws in New York, which are much more favorable then the DRA's provisions would be. Stay tuned for further developments.
One final note: Ironically, the attorney who is spearheading the lawsuit is a conservative Christian Republican from Alabama. However, he has always been known as a maverick and represents a number of religious organizations that are concerned that gifts to those organizations might be considered transfers. This scenario reminds me of Richard Nixon, the first president to go to China. One never knows where help is going to come from. I would note that the attorneyÕs name is James Zigler and I figure that anybody whose last name rhymes with mine must be a good lawyer.
Reprinted with permission of the Suffolk Times © 2006 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
First, regarding to the law's constitutionality, the Constitution requires that both houses of Congress pass an identical bill before it is signed into law by the president. This is basic constitutional law 101 and yet, the Senate and House of Representatives passed two different versions of DRA. There is a provision in the law requiring oxygen supply under Medicare. The Senate version passed with a provision allowing up to 13 months of payments for oxygen; the House bill provides for 36 months. The difference in cost over five years is estimated at $2 billion - obviously not an insignificant difference. Apparently, the president was advised of the error prior to signing the law and many people believed that he would go through a simple mock ceremony on Feb. 8, rather than actually signing the bill. However, he did sign the Senate version of the bill. When the issue was brought up, Republicans defended the signing of the bill by saying it was a minor discrepancy that could be cleared up with a technical amendment.