Balkinization: Defunding the Affordable Care Act

Defunding the Affordable Care Act

Gerard N. Magliocca

The President and the House of Representatives are bracing for another fight over the debt ceiling. This time, though, there is the bonus of a fight over stripping federal funding from the implementation of the Affordable Care Act. (Variety being the spice of life.) There is a constitutional question lurking here that goes something like this: Is it constitutional to defund something when you cannot repeal it?

Here's how this argument would play out. One view is that the power of the purse is plenary, and thus the House can choose not to spend money as it wishes. End of story. The contrary argument would say that, once a program or institution is enacted, it is fundamentally wrong to withdraw all funding in lieu of a repeal. (In other words, while a decision by the House not to fund the Affordable Care Act is not reviewable by a court, members of Congress would be acting contrary to their oaths of office if they did this.) Ah, but wait. What if you are a member of Congress who thinks (along with four Supreme Court Justices) that the entire Affordable Care Act is unconstitutional? Aren't you then obligated to vote against all funding for such an illegal law?

The most useful precedent for thinking about these issues is Andrew Jackson's decision to withdraw federal deposits from the Bank of the United States. (In effect, he defunded the Bank). The Supreme Court upheld the Bank in McCulloch, but Jackson rejected that analysis. Unlike the House, though, the President does not have plenary power over spending. Jackson said that he had statutory authority to remove the deposits (though that was a contestable point) and a divided Congress was unable to pass new legislation on that question. More important, he argued that his reelection in 1832 (after the Bank Veto) gave him a mandate to act decisively against the Bank. And in the end, Jackson prevailed.

What does this tell us about the effort to defund the Affordable Care Act? One thought is that such an action is appropriate only if you can plausibly claim a popular mandate to act. Another is that it is just wrong to say that House Republicans are obligated to fund the Affordable Care Act. If they genuinely think that it is unconstitutional, then they are acting well within their constitutional authority to say no.

Posted 1:17 PM by Gerard N. Magliocca [link]

Comments:

Gerard:

This question is not even close.

The Constitution does not authorize the government to spend a dime until Congress appropriates it. Art. I, Sec. 7 grants the House of Representatives plenary power to appropriate funds for spending.

The various statutory entitlements including Obamacare are only promises to spend money and cannot waive this plenary constitutional requirement and power regardless of whether progressives believe this to be "fundamentally wrong." The Constitution does not recognize the progressive concept of "mandatory spending."

As to whether the House has a moral obligation to use its appropriation power defund Obamacare, every single member of the GOP House majority ran on repealing some or all of Obamacare (as did a number of elected Democrats) and the voters twice elected this majority to accomplish this goal. Our elected representatives have a moral duty in a Republic to enact the will of their constituents. The fact that Obamacare is unconstitutional only adds to that underlying duty.

We in the Tea Party have been bombarding our representatives with calls and emails demanding they do what we elected them to do and defund this program, which is why the GOP leadership has just relented and will pass a clean appropriations bill defunding Obamacare instead of the gimmick of passing a separate defunding bill which the Democrat Senate could strip out with a majority vote.

The question is now whether the Senate and President can morally hold the rest of the government hostage by threatening to block or veto the House appropriations bill in order to coerce the House to appropriate money for Obamacare.

# posted by

Bart DePalma : 2:17 PM

I am pretty sure Congress defunds (or fails to fund) things that have statutory authorization all the time. That's why there are authorizers and appropriators.

# posted by

mls : 2:19 PM

The question is now whether the Senate and President can morally hold the rest of the government hostage by threatening to block or veto the House appropriations bill in order to coerce the House to appropriate money for Obamacare.
# posted by Blogger Bart DePalma : 2:17 PM

Considering that the public will blame the GOP for the results, I'm pretty sure that the Senate and President will have no problem standing up to the GOP attempt at extortion.

# posted by

Anonymous : 2:33 PM

I think it's perfectly Constitutional for the House to defund any program it wants, although there's some historical evidence that failing to fund a treaty ratified by the Senate is improper (Jay Treaty).

# posted by

Mark Field : 2:40 PM

BB:

The Democrat claim that the voters punished the GOP for "shutting down the government" in 1996 and will do so again in 2014 is quite detached from reality.

In 1996, the voters reelected the GOP House (and would continue to do so for another decade) and elected additional GOP senators.

If this is the type of "punishment" the GOP can expect in 2014, the GOP House has every electoral incentive to defund Obamacare immediately.

# posted by

Bart DePalma : 2:44 PM

Blankshot, whether or not the GOP continues to control the House in 2014 isn't really what is going to determine who wins this fight. In the end the GOP will cave and Mittcare will survive.

I know you have President Romney on your side, but I'm feeling pretty confident that you and Mittster are wrong (again).

# posted by

Anonymous : 2:51 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:56 PM

BB:

You may be correct that the GOP will cave again even though they have nothing to fear from the voters.

We in the Tea Party have been repeatedly telling our cowardly representatives that they have nothing to fear but fear itself.

# posted by

Bart DePalma : 2:57 PM

We in the Tea Party have been repeatedly telling our cowardly representatives that they have nothing to fear but fear itself.
# posted by Blogger Bart DePalma : 2:57 PM

They may not have to fear losing the House in the next few cycles, but they definitely should fear losing the Senate and White House for the foreseeable future.

# posted by

Anonymous : 3:04 PM

Bart,

Let me ask you this. Suppose a member of Congress thought that a foreign war was illegal. They vote to cut off funding for the troops in that war. Would you think that was consistent with his or her oath of office?

I could see that going either way, to be honest. Maybe would feel some obligation once troops are in the field to fund them even if you think the law is unlawful. (Say Congress never voted to authorize it.) Or maybe not. I'm not sure.

# posted by

Gerard N. Magliocca : 5:46 PM

Gerard: Let me ask you this. Suppose a member of Congress thought that a foreign war was illegal. They vote to cut off funding for the troops in that war. Would you think that was consistent with his or her oath of office?

Your question has multiple facets.

To start, I do not think much of oaths. Basically, we are discussing what Congress must do under the Constitution and what it should be morally compelled to do.

If Congress declared war, it is per se legal and that or a future Congress has a moral responsibility to fund the troops they sent to war.

If an enemy attacked the United States and a declaration of war was moot, Congress again has a moral responsibility to fund the defense of the country.

BUT, if the President started a war against a nation state without a declaration, the war is per se illegal and Congress should not only refuse to fund it, but should also impeach the president.

# posted by

Bart DePalma : 7:35 PM

The Constitution does not authorize the government to spend a dime until Congress appropriates it. Art. I, Sec. 7 grants the House of Representatives plenary power to appropriate funds for spending.

The various statutory entitlements including Obamacare are only promises to spend money and cannot waive this plenary constitutional requirement and power regardless of whether progressives believe this to be "fundamentally wrong." The Constitution does not recognize the progressive concept of "mandatory spending."

Well put.

# posted by

Thorley Winston : 7:53 PM

What this tells us is that the Teahadi horde, as ably represented as they are in this forum by one Bart DePalma, is delusional in the extreme. The horde may have convinced themselves that their terrorist tactics are somehow compelling for the majority of Americans, and that the Senate AND the President will accede to their threats, but I am quite certain they are wrong. In the end, House Republicans and House Democrats will pass some sort of budget bill that will fund Obamacare, along with the rest of the federal budget, because the political pressure from the sensible non-Teahadi majority will force them to do so. It's not a question of if, just when (well, that, and what volume of crocodile tears and teeth gnashing we'll get from the nitwits in the peanut gallery).

# posted by

Drogon Saurischian : 4:13 PM

Teahadi logic to wit:

If Congress passes a law, it has no obligation to fund it.

If Congress passes a declaration of war, it has a moral obligation to fund it.

Deep thoughts from our very own Jack Handy of the Wilderness.

# posted by

Drogon Saurischian : 4:17 PM

Why should we withhold criticism simply because they believe, even sincerely, that the Constitution supports their position? Leaving aside the easy edge cases of lone dissenters -- declining to pay taxes under a sincere belief that they are unconstitutional, e.g. -- are not all minorities confronted with the same essential choice? At the heart of Constitutional validity, even more centrally than our belief in its explicit tenets, is our collective agreement to defer to majority decisions in most cases. The trick, of course, is the 'most". But the burden must be on dissenting minorities to prove that this is one of the cases where deference is inappropriate. Absent such proof, are their actions -- some (see Prof. Levinson's post, supra) say 'hostage-taking' -- really so admirable?

# posted by

JSFM : 5:17 PM

The House has every right to attempt to refuse to fund Obamacare. But, since Obama will never sign a defunding bill and the Senate will never pass one, taking the position that any CR must defund Obamacare makes a government shutdown inevitable.

And once that shutdown occurs, it will continue until the House passes a CR that funds Obamacare, because Obama and the Senate are not bending.

So the only two operative choices are fund Obamacare, or shut down the government and eventually fund Obamacare.

# posted by

Dilan : 10:32 PM

All you're doing is transferring the guilt based on an assumption Democrats will never compromise. This might be a reasonable assumption, but it's like blaming a mugging victim for walking into the alley, it denies the agency of the party actually committing the wrong.

We have a stop-gap funding measure, if the crisis hits it will be because Democrats prefer a government shutdown to ending Obamacare. We may be confident they'll act on that preference, but it's still them acting.

# posted by

Brett : 10:45 AM

All you're doing is transferring the guilt based on an assumption Democrats will never compromise. This might be a reasonable assumption, but it's like blaming a mugging victim for walking into the alley, it denies the agency of the party actually committing the wrong.

I was careful not to blame anyone, actually.

I simply made the point that if I am right that Obamacare is a non-negotiable point for the Democrats, the Republicans will, eventually, be forced to fund the government without defunding Obamacare, because we can't shut down forever.

# posted by

Dilan : 8:42 PM

Ok, so you're simply assuming that the Democrats are the mad dogs here, the Republicans the reasonable ones, and eventually you give the mad bomber what he wants, rather than seeing the daycare blown to bits over a matter of principle.

Sounds like a formula for encouraging mad dog bombers, frankly.

# posted by

Brett : 10:21 AM

Brett's prophecy:

"Sounds like a formula for encouraging mad dog bombers, frankly."

sounds like its from the "anarcho-libertarian" agenda. I don't think Brett has had his shots (except for the 2nd Amendment variety).

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