NATIONAL REVIEW ONLINE
September 28, 2013 4:00 AM
How to Constitutionally Fund the Government
It’s the House’s prerogative to supply funds, or not, for Obamacare.
By Andrew C. McCarthy
Republican leaders are right: There was a flaw in Ted Cruz’s plan to defund Obamacare: He took Republican leaders seriously.
Senator Cruz, along with Senator Mike Lee and House conservatives, devised a strategy to forestall the unpopular socialized-medicine scheme that Democrats unilaterally rammed through Congress in 2010. They would starve it of funds, not unlike the way Democrats and Republicans have slashed funds for fence construction along the Mexican border, even though the fence has been the law of the land for seven years. The Obamacare defunding strategy, though, depended on Republican fidelity to a ballyhooed campaign promise to reform Washington’s wayward legislative process by reimposing constitutional order — an order that gives the House of Representatives primacy over the spending of taxpayer dollars.
In the stretch run of what became the historic 2010 midterm elections, the Republican establishment issued its “Pledge to America.” If you flip past the many pin-up glossies of John Boehner, Eric Cantor, and Kevin McCarthy, you occasionally find some text in the Pledge. Text such as this: “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored.”
Constitutional devotion was fashionable in 2010 — more fashion than substance, some of us suspected at the time. The GOP had been cast into the cold by angry voters in 2006 and 2008. The party had controlled the White House and both congressional chambers through most of the first six Bush years. As self-styled “compassionate conservatives,” Republicans bloated government, nearly doubling the debt the nation had previously taken over two centuries to accumulate. Fed up, conservatives stayed home in droves. The result was the Pelosi/Reid Congress and, later, the Obama administration.
There ensued a nightmare of full-throttle statism, exemplified above all by Obamacare. That, and not anything the Republicans themselves did, is what opened the door to a GOP comeback. The dynamic force in American politics was the Tea Party. Not an actual political party, the Tea Party is a grass-roots reform movement that calls for a return to limited central government on the original constitutional model — a model that promotes liberty by sharply restricting federal authority, and thus federal spending.
So out went the “compassion” garb, replaced by the GOP’s claim to be the “constitutional conservatives” that the Tea Party craved, the antidote to Obama. Republicans did not just expressly pledge to honor the Constitution as originally understood by the Framers. They promised: “We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.”
As Cruz and Lee are learning, it turns out they were kidding.
A little over a week ago, with the October 1 implementation of Obamacare looming, the House voted not to fund the massive and massively unprepared program. This House bill has been scorned by the GOP establishment and its sympathetic scribes. Echoing Beltway oracle Charles Krauthammer, they tut-tut that Republicans only control “one half of one third of the government”; therefore, the refrain goes, they cannot reasonably expect to impose their policy preferences on an electorate that has placed the White House and Senate under Democratic control.
Yet the Constitution that Republicans claim to venerate does not assign power in proportion to the quantum of governmental departments or congressional seats won in elections. All or part of each enumerated power is assigned to specified components of government by subject matter. And significantly, at least if we are truly honoring the Constitution as originally designed, the Framers did not assign authority arbitrarily. Rather, supremacy over a given power was assigned to the component of government best suited to control its exercise in a free republic.
To take a few examples, decisions about military tactics are reserved to the president — regardless of whether Congress is overwhelmingly in the hands of the opposing party. Consent to the president’s appointment of high public officials is reserved to the Senate alone — it makes no difference whether the House or the presidency is controlled by the opposing party. Legal decisions are the province of the judiciary, and can be dictated by five Democratic justices — even if the rest of the Supreme Court and the rest of the government are solidly Republican.
And spending is the prerogative of the House. Not the Congress, the House.
The Constitution expressly provides (in Article I, Section 7): “All bills for raising Revenue shall originate in the House of Representatives.” This Origination Clause applies to all spending legislation. As the clause elaborates, when the subject at issue involves spending public money, the Senate “may propose or concur with Amendments as on other Bills”; but it may not instigate spending. The Senate can tinker within the spending limits set by the House, but it must live within those limits. The continuing resolution to fund the government, which is the legislation at issue in the current controversy, is no exception. The Senate is not permitted to originate spending, as Majority Leader Harry Reid did on Friday, with the indulgence of Senate Republicans — who voted against his appropriation of Obamacare funds but did not challenge the validity of it.
The Republican establishment keeps flashing those “one half of one third” tablets Dr. Krauthammer carried down from Mount Sinai. But Republicans fulfilling a pledge to honor the Framers’ Constitution would do better to take their cues from James Madison. “The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government,” he explained in Federalist No. 58 (emphasis added).
One could contend, as “organic Constitution” devotees do, that it makes no difference which congressional chamber initiates spending as long as both must vote to approve it. But besides improperly nullifying an explicit constitutional command, this contention ignores the Framers’ rationale. Putting the House in charge of spending was not an idle choice.
As Madison elaborated, the purpose of the Origination Clause is to put the “power of the purse” firmly in the hands of “the immediate representatives of the people.” Government has no resources of its own; it has only what it confiscates from the citizenry. In a free republic, liberty hinges on the ability of citizens to constrain the demands government can make. The Framers prudently concluded that the best means of constraint was to give the definitive word on taxing and spending to the House: The only legislators directly elected by the people at the time the Constitution was adopted (senators were chosen by their state legislatures until 1913); and, to this day, the only representatives who must face the voters every two years.
As noted above, the legislation at issue in the present controversy is not Obamacare specifically. It is a continuing resolution for funding the entire government. Under the Constitution, any funding in the continuing resolution must not only be approved by the House, it must originate in the House.
The House has declined to provide funding for Obamacare. Critics of Senator Cruz — and some of the most vicious imprecations come from his fellow Republicans — mock the defunding strategy as a divisive delusion. Cruz, they say, well knew that once the House defunding measure got to the Senate, Democrats would simply exploit their majority to provide the Obamacare mega-billions. That, indeed, explains the seeming anomaly that Cruz encouraged the House to pass defunding but tried to block the Senate from voting on it. Under Senate procedure, it is when debate ends and voting is about to commence that amendments are allowed, enabling Senator Reid to tack on the funding restoration.
In a properly functioning constitutional process, however, Reid’s maneuver would have failed. Not only Republicans but senators of both parties, in fidelity to the Constitution, would concede that, while the Senate may ask the House to fund Obamacare as part of the continuing resolution, it is the House’s call.
Positing one of the theories that have the country careening toward economic suicide, old Washington hands counter that the House may not cut off Obamacare funding because it is “mandatory” spending. That is, they argue that under decades-old federal budget legislation — somehow invoked without embarrassment by elected officials who go years without honoring the legislation’s mandate to pass a budget — Congress has no discretion to withhold entitlement spending (such as Social Security, Medicare, and now Obamacare). The spending, they say, is required by the authorizing legislation itself; it does not require any separate appropriation and can be reversed only by a separate, repealing act of Congress — passed by both houses and signed by the president. In essence, they claim that by passing Obamacare three years ago, the House has already originated the funding in today’s continuing resolution.
This contention fails for several reasons. To begin with, it should be obvious enough that the so-called “Affordable” Care Act that authorized Obamacare is not self-executing. Washington can call it “mandatory,” but if new spending approval were unnecessary, we would not be at a stalemate now. As the Heritage Foundation points out, supposedly mandatory spending is routinely withheld in the appropriations process, and key elements of Obamacare (such as the insurance exchanges, as Hans von Spakovsky explains) are not even deemed mandatory. More to the point, as I have argued and as Heritage documents, President Obama himself has defunded purportedly “mandatory” elements of Obamacare — in the absence of any legislative authority whatsoever. In the Beltway’s upside-down world, the House of Representatives is apparently the only part of government prohibited from cutting spending.
There are, moreover, higher principles involved here — particularly if Republicans are in favor of restoring constitutional order, as they proclaim. There is nothing in the Constitution about “mandatory” spending — a progressive contrivance to insulate the welfare state from adult decisions about living within one’s means. As argued here before, social-welfare policy is a matter for the states. Its management is among what Madison described as “the powers reserved to the several States [that] extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.” Health-care regulation is plainly not among the “external objects,” such as foreign relations and national defense, that the federal government was created to manage. Furthermore, federal entitlement programs are rationalized by a contorted construction of the Constitution’s General Welfare Clause — one the Framers would not have recognized.
Nevertheless, in the current controversy, conservatives are not calling for the dismantling of the welfare state or even the repeal of Obamacare. Everyone recognizes that the latter would require an act of Congress. We are talking about the narrow Republican commitment to restore originalist constitutional principles to the legislative process. The legislation at issue is a continuing resolution for funding the government, not expunging Obamacare. Refusing to include Obamacare in that funding would not remove Obamacare’s statutory validity. It is black-letter law that a prior Congress cannot bind the present Congress, and a statute cannot supersede the Constitution. Prior law’s designation of Obamacare spending as “mandatory” cannot compel the current Congress to fund it as part of continuing-resolution legislation, nor does it alter the Constitution’s command that all spending in that continuing resolution must originate in the House.
Many will say this is a quaint way of looking at things, that in modern practice it is commonplace for the Senate to gut House bills, replace them wholesale with different Senate spending priorities (or even spending provisions helpfully drafted by the executive branch), and then send them back to the House for approval — or hammer differences out in a conference committee. True, but it is precisely because legislative practices and proposals violate the Constitution with notorious regularity that the Republican establishment — back when it was pleading for conservative votes — pledged (oh, let’s quote them again) “to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored.”
The American people do not want Obamacare, and the representatives closest to them have voted not to spend the people’s money on it. According to the Constitution, that should be the end of the matter.