There’s something about our system of common law that I fear many people, especially those who have lived under a civil code system, do not understand or at least don’t understand its implications. Our law is not necessarily logical and there’s no requirement that it be consistent or coherent.
Given that preamble, can anyone produce an explanation relying solely on constitutional law that the Tea Party Republicans were acting illegally in refusing to fund Obamacare? Keep in mind Article I, Section 7, Clause 1:
1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
I read that as saying that the House of Representatives, in theory the most representative body in the federal government, identifies the spending priorities. Neither the Senate nor the president nor the Supreme Court have any power to compel the House to fund anything.
As I’ve pointed out before, it’s very difficult for a Congress to compel future Congresses. That’s why carefully constructed legislation that extends over any period of time includes trust funds, multi-year appropriations, and so on. They make it harder for a future Congress to undo a past Congress’s work.
I’ve argued against the actions of the House’s Tea Party Republicans but on grounds of decorum, civility, political prudence, and maybe even morality not of law. If there’s a legal argument please make it. Saying “a law was enacted by a past Congress, signed by the president, and upheld by the Supreme Court” is not such a legal argument. It assumes things that are incorrect: that Congresses have the power to bind future Congresses, that past laws can compel the House of Representatives, and that there’s some requirement for our law to be logical, consistent, or coherent.
There’s certainly nothing illegal about defunding a law. However, wouldn’t success create a constitutional crisis? Article II, section 3:
The law is still in force — it has not been repealed. But the Congress has deprived the president of the means of carrying out his duties under the Constitution. I’m not sure that would fly if it came before the courts. The Congress, by its action, will have presented the president with a terrible dilemma: Either he does not execute the law (an impeachable offense) or he draws on other sources of funding to execute the law in accordance with his constitutional duty (thereby thwarting the will of Congress by an abuse of power, also an impeachable offense).
Not a pretty picture.
Sure. However, fomenting a constitutional crisis isn’t illegal, either. Basically, sam, you’re pointing out the inconsistency of our system I mentioned in the body of the post. But that is our system.
@sam, laws passed by Congress which Congress did not properly resource does not create a Constitutional crisis. It happens all of the time. The Courts require the President to do that which he can, but not that which he cannot.
The framework of our federal system is limited government. You could have a government system in which such conflicts give the President power to obtain the needed resources, but that’s not how this Constitution is written.
@PD
“laws passed by Congress which Congress did not properly resource does not create a Constitutional crisis”
PD, would that really defuse the crisis engendered by the hypothetical?
“The Courts require the President to do that which he can, but not that which he cannot.”
But that’s the crux of the crisis. Just exactly what cannot the president do?
“You could have a government system in which such conflicts give the President power to obtain the needed resources, but that’s not how this Constitution is written.”
And that would be the fight: Just how is this constitution written? BTW, can you point me to the relevant cases? I’d like to see the language.
Thank you Dave for pointing out the Constitutional tasking given the House to be the veritable fiscal oversight committee for the country’s expenditures. Also, no one can argue that the original cost projections, before the passage of the PPACA, were under a trillion. Now, they are well over that mark, and presumed to go higher, especially if the sign-up demographics don’t meet the government’s calculations, and/or other further unintended consequences arise to plague the rose-colored expectations of government-run HC .
So, with all this in mind, the House was doing it’s job in attempting to restrain full implementation of a bill, which is certain to have cost overruns, layering this country with more debt/deficits at an unstable, slow-growth time in our economy.
And, even though the tea party people have been rabidly excoriated for holding firm onto ‘unpopular’ stances, their real call to arms has been to jangle the awareness of people, raising the populace’s concerns regarding government overreach and our increasing fiscal problems. Furthermore, should the country ever pare back bulky, useless programs, government waste and bureaucratic duplicities becoming ‘expenditure-lite,’ in it’s consumption of revenues, people will probably see these dissenters more in the light of saving the day, and less as ‘spoilers.’ for their steadfast refusal to quickly/quietly pass yet another CR or debt ceiling, without the WH and Senate dems first offering needed offsets involving prudent entitlement reform/spending cuts.
I listened to Joseph Ellis on C-Span several weeks ago when he was asked where the Founders would line-up today. After dismissing the notion as absurd as planting cut flowers, he said Jefferson would certainly be a tea-party libertarian today. I think he saw Adams as a George Kennan realist that could not be elected today, and would take pride in telling everyone that.
How much of a realistic is to be a politician that can’t get elected?
@sam, I’m not sure what you mean by Constitutional crisis. In my book a crisis is when the two branches of government are at loggerheads because of irrepressible conflict on their positions as to what should happen. If Congress does not give the President both the authority and means to do what it wants, there is no conflict.
A recent court case explaining when the executive can ignore the law is In re Aiken County. Congress passed laws for licensing nuclear waste storage sites, which required the Dept of Energy to approve or reject any application within three years. DOE declined to act on a Yucca Mountain application, arguing that Congress had not appropriated enough money to conduct a complete review and it was unlikely that money would be there in the future. The Court found that this was not sufficient reason to do as much review as the resources allowed.
The case discusses the three situations in which the executive branch can disregard federal statutes:
(1) “lack of funds” (p. 6);
(2) “unconstitutional” statute (p. 10);
(3) “prosecutorial discretion” or “pardon” power (p. 13)
Arguably (2) and (3) were dictum since DOE did not make those excuses, but the decision contains a good summary of the issues and the extent that these excuses can ever be claimed.
@Ellipses, i think he was suggesting Adams wouldn’t be a politician at all, but perhaps a civil servant, intellectual or a journalist.
On a legal aside, I didn’t realize that there were lawsuits going forward to prevent the health insurance subsidies for purchasing insurance from being applied in states that did not set up their own exchanges.
I assumed there would be an issue w/standing since nobody could claim they are being harmed by these subsidies, but the complaints allege that recognizing these states as non-participants would (a) allow some individuals to buy non-compliant insurance without being subject to an individual penalty under a hardship exemption, and (b) exempt employers from penalties that accrue when an employee obtains insurance on one of the exchanges.
The D.C. federal judge ruling yesterday ruled that the case can go forward and promises a decision by February 14, 2014, the deadline to get insurance.
(I have no idea where In-Betweener states like Illinois fall on these issues)
Thanks, PD. I’ll look at that case.
“If Congress does not give the President both the authority and means to do what it wants, there is no conflict.”
I’m saying the conflict would arise when the Congress passes a law, and the president signs it into law. Thereafter, for whatever reason, the (= this one or another one) Congress “defunds” the law. The president (believing the law is absolutely essential to whatever), cites the Article II, section 3 imperative and uses funds not specifically appropriated by the Congress for said law to “faithfully execute” said law.
Two verbs that seem to go hand-in-hand with this administration’s observance of the law are “overstep” and “ignore, aka go around it.” In the case of the PPACA, these actionable words describe not only the interpretation of the law, but also it’s implementation. However, a law suit appears to be emerging on the horizon calling the president out on these unilateral ways of blurring or erasing portions of the law that conflict with his immediate agenda: Federal Judge Green Lights Lawsuit That Could Stop Obamacare In It’s Tracks.
@Jan, that’s the court decision I referenced earlier. I don’t know if the result would be “fatal” if the plaintiffs are victorious. It might just limit most of the effects of the ACA to sixteen states (sigh, not Illinois) that set up state exchanges.
More legal asides: The IRS published a rule making everybody eligible for tax subsidies May 23, 2012. How many states declined to set up state exchanges in reliance upon this rule? Illinois decided to go the partnership route around July 18, 2012. The state announcement indicated that individuals would be eligible for premium subsidies:
http://www.sj-r.com/top-stories/x1798690424/State-to-work-with-feds-on-health-insurance-exchange?zc_p=0
A president doing that would be misusing his authority. IIRC that’s been fully litigated as has a president refusing to spend money that’s been appropriated.
PD,
Scanning your earlier post I just didn’t connect the 2 court cases. I agree with you that even a favorable ruling against obamacare will not necessarily be it’s demise’ as the piece suggests. However, it will add a few more potholes in it’s ability to be smoothly implemented.
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“A president doing that would be misusing his authority. IIRC that’s been fully litigated as has a president refusing to spend money that’s been appropriated.”
That’s the sticking point of the hypothetical crisis.
Let me expand on that a bit. What you were referring to was Nixon’s attempt to “impound funds”. What we had there was a president refusing to “faithfully execute” a law. In the hypothetical, what we have is a president who wants to faithfully execute a duly passed and signed law, but Congress as withdrawn the funding or refused to fund. What does he or she do if he or she firmly believes the law is vital? Really vital.
“So, with all this in mind, the House was doing it’s job in attempting to restrain full implementation of a bill, which is certain to have cost overruns, layering this country with more debt/deficits at an unstable, slow-growth time in our economy.”
Maybe, but not likely. The ACA has built in funding. Since Republicans dont believe in doing that very often, I can see how that would be confusing for you.
Steve