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.