October 9, 2013

THROWDOWN THURSDAY: Obamacare, Shutdown and the American Constitution

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The constitutional structure that defines the American government is a benefit and a burden.  By allowing numerous branches of government, each representing a somewhat different constituency, to play a role in crafting public policy, our founders hoped to bring together diverse people and ideas to create the type of inclusive political arrangement that leads to good laws.  Under our system, lawmakers typically must be willing to consider the ideas of others, rather than dismissing them out of hand as unwise, if they wish to form the broad coalition necessary to enact a desired legal change. The onerous process of passing the exact same bill through two different houses of the legislature, then getting that legislation signed by the President or enacted by a two-thirds vote over his veto, typically necessitates compromise.

But the system that they set up serves another important purpose — to keep a narrow and fleeting legislative majority from passing its entire agenda without having to worry about the opposition. It does this by dividing power within the legislative branch itself and between the three branches of the federal government. This makes it easier for a group of people, even if in control of only a small part of the government, to undermine a piece of legislation it adamantly opposes because it severely threatens its interests or the interests of the nation as a whole.  In other words, our system produces gridlock almost by design.

Thus, our Constitution serves two ends that are in tension with one another. The former end seeks to bring people together around sound policy, while the latter end seeks to divide power and make change difficult. In American politics, liberals argue that the constitutional structure is primarily designed to facilitate compromise on new legislation aimed at expanding the role of government to improve the lives of ordinary Americans.  Conservatives, who see government as a necessary evil whose power must be strictly limited, see the constitutional structure primarily as a means of preventing government from doing too much by making it very difficult to get the consensus necessary to enact new laws.

What we are witnessing today is what would be expected under our system of government when a party shoves through an unpopular piece of legislation along party lines. Obamacare, passed while Democrats had a temporary monopoly on power, created a backlash that has poisoned the political culture in Washington to such an extent that many on both sides have taken a no-compromise approach to the budget. Yes, the American people returned Barack Obama to office in 2012. But the Republican Party won a majority of elections to the House of Representatives that very same year while vowing to repeal Obamacare. The President has no right to demand, without negotiation, that part of a co-equal branch of government submit to his budgetary priorities.

Democrats have insisted on giving Republicans a civics lesson about how laws are passed and repealed. Yet, we are told that Obamacare is the untouchable “law of the land” only when Republicans in Congress seek to alter it, not when the President does so unilaterally, as he did with the employer mandate.  There is nothing “extra-constitutional” about Congress deciding what it wants to fund and what it does not.  Would it be similarly illegitimate for Congress to propose cutting off funding for a war that it had previously authorized? Of course not. The President, though, has no constitutional authority to ignore those parts of the law he dislikes.

Meanwhile, the House of Representatives has passed numerous bills that would reopen portions of the federal government. Why does the Senate refuse to take most of them up? If the shutdown is as harmful to the country as Democrats insist it is, why not pass legislation that would mitigate that harm? The answer is, of course, utterly political. Democrats do not want to ease the pain of a shutdown because it gives them less to blame the Republicans for. It would seem that House Democrats are playing the same political game they accuse Republicans of.

To be clear, I am not a fan of this shutdown. If allowed to persist, Democrats will continue to blame Republicans for creating unnecessary harm in furtherance of a radical, ideological agenda, while Republicans will continue to blame the President for failing to be reasonable and come to the negotiating table.  Ultimately, the biggest loser in that fight will not be the Republicans or the Democrats, but rather, the People’s faith in their elected representatives. But in this shutdown debate, it is important to remember that our founders gave us the possibility of divided government precisely so that large, contentious pieces of legislation like Obamacare could not be easily passed with the support of one party alone. It was the Democrats’ decision to eschew the bipartisanship that our system typically requires in passing Obamacare. Now, we must all deal with the consequences.

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