The Corner

Mandatory Spending & Obamacare — Again …

My column this weekend is a shutdown post mortem, focusing on the anti-Obamacare strategies offered by divided Republicans. In a thoughtful post, blogger agconservative asserts that my argument, in sympathy with the so-called defunders, is undermined by what he argues is a “completely false” premise, to wit: my contention that “Because, as a matter of law, Obamacare could not proceed unless both congressional chambers agreed to fund it, and because Republicans control the House, House Republicans could deny it funding.” According to agconservative, this is wrong because Obamacare was funded in the original Obamacare (or Affordable Care Act) legislation.

This is another iteration of the “mandatory” spending argument I have previously dealt with here. To be clear (and hopefully clearer than today’s column was on this point), what I meant was that all government spending requires the consent of both houses of Congress – whether or not, like much Obamacare spending, it is deemed “mandatory,” a category that has no constitutional significance. Moreover, a prior Congress cannot bind the current Congress – which, for present purposes, means a prior Congress’s designation of some program as “mandatory” spending cannot force the current Congress to fund it.

I am not claiming that the House can unilaterally repeal prior legislation; and I am not claiming the House can unilaterally cut off money that has already been provided. I never came close to suggesting that the shutdown stopped Obamacare spending. The point was to use the House’s incontestable constitutional authority to refuse to raise and spend money as leverage to pressure the Senate and Obama to agree to defund or delay Obamacare. It is perfectly obvious that defunding or delaying Obamacare alone (i.e., not defunding it incidentally to a total deprivation of funds by failing to approve any spending) would require an act of Congress. My column plainly proceeds on the understanding that the House was trying to pressure the Senate and Obama to pass and sign legislation that defunded or delayed Obamacare. That enterprise would have been pointless if the House could have accomplished this goal unilaterally.

But to be clear, agconservative is correct that the House could not unilaterally have defunded Obamacare, and I do not contend otherwise. The House can unilaterally refuse to pass any spending bills; but to excise a specific spending program that has already been authorized by prior law, a bill to that effect must be passed by both houses of Congress and signed by the president (or, if the president vetoes, passed by in both chambers by the required override margin). The passage of a new law was exactly what the defunders were trying to accomplish.

agconservative also maintains that the defund and delay strategies were separate and I have wrongly conflated them. Some people may have seen them as separate, but I never did and have argued them interchangeably from the start. I am not intimating that defund and delay were the same thing. Clearly, from an anti-Obamacare perspective, a permanent defund would have been better than a temporary defund, and both would have been better than a two-year delay, which in turn would have been better than a one-year delay. But I don’t think you negotiate against yourself — you start out with what you would ideally like and you settle for the best you can get. That was always the way I looked at it. Just as the defund/delay project was not mutually exclusive from the GOP establishment’s elections/repeal approach, defund and delay were not mutually exclusive. I don’t see defund as a strategy that crowded out all others, and I think the vast majority of us who supported it would have been delighted to have ended up with a delay.

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