Written by Andrew C. McCarthy
Grassroots pressure from conservatives has induced the House Republican leadership to permit a vote on a continuing resolution that defunds Obamacare. That is excellent news.
For spearheading the move to defund the (Not Remotely) Affordable Care Act, intrepid Senators Ted Cruz (R-TX) and Mike Lee (R-UT) have been scalded by the usual ruling class crowd of GOP establishment leaders and Obama administration officials. Yet public resistance to a law the public has never liked – and about which the public grows increasingly anxious as its deleterious consequences and exploding costs begin to materialize – has forced leadership’s hand even as it demonstrates, yet again, the divide between the Beltway and the country.
The objections to the defunding strategy are as unconvincing as they are feckless. Naysayers argue that President Obama will never sign a bill to fund government operations that slashes his signature achievement. Thus, the argument goes, defunding can only result in a government shutdown for which, thanks to Obama’s slavish media, Republicans will be blamed. Also trotted out, of course, is the bromide the GOP establishment chants to rationalize its supine posture whenever opportunities arise to oppose Obama’s hard Left agenda: “We only control one-half of one-third of the government, so we cannot dictate policy.”
Resistance is futile, in other words, so why resist at all? It’s an ironic argument since it seems Republican leadership only resists when doing so is futile, when the resistance is token. Thus the prior votes to repeal Obamacare, all forty of them, taken in the comfortable knowledge that they had no chance of succeeding – just going through the motions in faux fulfillment of a commitment to the base to work tirelessly to undo the law. But when something might not be futile – when it could actually work, and therefore entails hard work and risk – we generally find leadership in folderoo mode, babbling its one-half-of-one-third mantra.
Defunding could work for several reasons. First it puts the lie to the one-half-of-one-third blather. The United States Constitution does not set up government by percentage; it sets up government by enumerated power. The capacity of the respective branches to shape policy is not a function of how many of the branches a political party controls and by how much. It is a function of the subject matter of the policy in question. The president is only one-third of the government, but he is commander-in-chief, and if the issue is war strategy, he has policy primacy – it is immaterial whether the opposition party has a lock on Congress and the courts. Similarly, if the issue is adjudication of a constitutional case, it matters not whether we have a Republican president and 535 Republicans in Congress – the tune can be called five left-wing Democrats in robes (or roughly one-half of one-third of the government).
When it comes to spending, Congress has primacy, and pride of place rests with the House (the one-half of one-third Republicans control) because the Constitution mandates that spending bills originate in the lower chamber – the one closest to the people. Equally important, the hard jobs in government are the ones where an officeholder has to do something. It is a lot easier when all that’s necessary is to refuse to act. Spending requires a positive act by Congress – not a thin dime may be spent unless Congress approves. That is, there can be no spending on Obamacare unless Congress votes to approve it. Thus, the one-half-of-one-third crowd is in the driver’s seat. All they need to do is say, “No.” It is President Obama who needs action here – congressional Republicans need only decline to act.
And by the way, if Republicans do act, if they vote to fund Obamacare, then they are for Obamacare. Don’t let them fool you with meaningless “repeal” votes. Repeal – i.e., changing the law – is a positive act; unlike refusing to spend money, it cannot be accomplished simply by saying no. Just as President Obama needs Republicans to get his spending, Republicans would need the president (or substantial cooperation from congressional Democrats) to get their repeal. This, we all know, they will never get – there will be no repeal until an election or two drastically changes the landscape. But spending is another story – and President Obama should be made to understand that it is just as hopeless to get Republican assent to spending on Obamacare as Republicans understand it is hopeless to get Obama’s assent on repeal.
In fact, defunding has a chance to work precisely because it is not an effort to repeal Obamacare. President Obama is a proud man. It is unreasonable to expect that he would ever sign a repeal, a complete surrender that would be tantamount to an admission of total failure. Defunding is not a complete victory for Republicans – Obamacare would still remain on the books as the law of the land.
Moreover, defunding is not all bad for Obama. Putting Obamacare to the side for a moment, there is no conservative who believes the federal government should be funded at current astronomical levels. To compare, in 2000, at the end of the Clinton presidency that Democrats speak of as an economic Golden Age, annual federal spending was around $1.76 trillion, roughly 18 percent of GDP. Today, spending has doubled ($3.5 trillion), hovering around a staggering 25 percent of GDP – and debt has tripled to $17 trillion (without accounting for tens of trillions more in unfunded liabilities). Conservatives want spending slashed at least back to Clinton levels. Yet, for purposes of the Obamacare defunding battle, conservatives are agreeing to fund the rest of the government at the current absurd heights just to make the political point that if the government shuts down, it is Obama’s doing.
Obama is talking a brave game right now about how he won’t even entertain a budget that erases Obamacare – he vows a veto and a shutdown. But his political position is untenable, even with the media carrying his water. He will be grinding things to a halt to force Obamacare on the public even though he himself has slashed Obamacare for the benefit of big business and members of Congress. By agreeing to fund the rest of government, Republicans allow Obama a face-saving out: He can tell his base he preserved record-spending on social welfare programs, and that while Obamacare has been delayed, it is still the law and he will be back pushing for funding it in next year’s budget when the executive branch is more prepared to implement it.
That’s why I’m betting he’ll cave.
Conservatives, of course, will not pretend that we don’t want Obamacare repealed or that we would not regard defunding as a sweet, albeit transitory, victory. Nevertheless, defunding is simply not repeal. Whether one hoped defunding would merely be a delay in implementation (as the Left would) or the first step toward eradication (as conservatives would), it would actually be a concession to reality, propriety, and equal protection under the law.
Reality because the law is not close to being ready for prime time. Obama has already conceded this point by selectively waiving – better to say: dubiously claiming the power to waive – the law’s implementation. He has massively defunded Obamacare by suspending the employer mandate. He has also gutted the verification requirements imposed on state health insurance “exchanges” (which are designed to verify the income of enrollees and whether they are already covered by employers) – a fiat that invites fraud certain to subject the program to billions of dollars in costs. And he has removed sundry Obamacare burdens that would otherwise be imposed on hundreds of his favored interest groups. Most disgracefully, this includes the ruling class itself: Congress critters and their staffers have been relieved of what would otherwise be a rescission of their $5,000 to $11,000 taxpayer health-insurance subsidy – once again, unlike the government, we mere peons will have to figure out a way to live within our means.
As all this elucidates, Obama himself is already defunding Obamacare. He has already demonstrated beyond cavil that the program is not ready to be applied as the enabling legislation commands. Conservatives need to be better at hammering this theme. Despite the White House campaign to paint them as extremists, Republicans are merely trying to do what Obama is already doing – except do it more fairly and more faithfully to both the terms of the statute and the debate over its passage.
That brings us to propriety. No president has authority to enact law, either by proclamation or by unilaterally repealing selective parts of a statute. Obama’s presumptuous waivers are an unconstitutional perversion of the legislative process. Legislation is about compromise: There would not be law unless lawmakers agreed to swallow provisions they do not like in order to enact the terms they favor.
Courts upset this balance when they invalidate a part of a statute – often a part whose acceptance was necessary to attract support for passage of the whole. But we tolerate this because courts have a justification: A statutory provision may be stricken only if it violates the Constitution, and only because the court has no alternative but to rule on the provision in order to decide a pending case. And courts often take pains not to usurp the legislative function: If an infirm provision is key to a statute, they will simply strike the whole statute rather than rewrite it selectively.
In stark contrast, Obama is not vindicating the Constitution. He is selectively mining the law’s provisions, as well as picking winners and losers in its enforcement, based on political considerations. In our constitutional system, it is the assigned duty of Congress to make those choices; the president’s job is to enforce the law as written. If the law cannot be enforced as written, it should not be enforced at all.
In the case of Obamacare, there is a powerful additional reason to honor this principle: The claim by Obamacare proponents that the healthcare system needed comprehensive reform.
By and large, opponents of Obamacare did not (and do not) deny that our health care system needs reform. But opponents argued that, because a system involving a sixth of our massive economy is so complex, reforms should be undertaken gradually, in the prudent realization that there would be unintended consequences to address. Radical shocks to the system, we argued, ought to be avoided. But no: Obamacare advocates insisted, as they ramrodded through their unpopular 2700-page bill, that we needed comprehensive reform. The system, they told us, is intricately interdependent. It could not be addressed in pieces heedless of the other pieces. Now, however, they risibly contend that the president – not the lawmaking department of government but the executive – can haphazardly tweak parts without affecting other parts.
Worse, they claim he can do so in gross violation of our constitutional commitment to equal protection under the law for every American. A waiver here, but not there. Big corporations relieved of their mandate (because the administration and the Democrats cannot afford the political fallout of higher unemployment heading into the 2014 midterms), but individual Americans told to pay up, pronto. Members of Congress who foisted Obamacare on us protected from its onerous terms, but ordinary citizens who never wanted Obamacare ordered to comply. That is a travesty, and millions of Americans are boiling over it.
Even in a Congress solidly controlled by leftwing Democrats, Obamacare only passed by the skin of its teeth – and only thanks to the rankest kind of back-room deals and fraudulent budgeting. It would never have passed, not in a million years, if the public had been told that corporations would be favored over citizens, and Obama cronies over those without political connections.
What conservative proponents of defunding are seeking is not a repeal. Conservatives seek merely to do what Obama is already doing: defund the law … except conservatives would defund within constitutional norms. This would be a refusal to fund a law accomplished by the branch of government responsible for spending and lawmaking, not by an imperial president who has usurped lawmaking power and would coerce spending in accordance with his political whims, not equal protection of law for all Americans.
That is an argument conservatives can win, shutdown or no shutdown.
SOURCE: Ordered Liberty PJM
Andrew C. McCarthy is the author of the New York Times bestsellersThe Grand Jihad and Willful Blindness. He is a contributing editor at National Review and co-chairs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. He also writes the Ordered Liberty blog at PJMedia.com.