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How to Constitutionally Fund the Government
It’s the House’s prerogative to supply funds, or not, for Obamacare.

The House Chamber

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489
Andrew C. McCarthy

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.

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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.

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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.



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