In 2014, Congress sued the executive branch over the president’s refusal to enforce the law. It was kind of a mind bender because the majority in Congress hated the law that wasn’t being enforced — ObamaCare — and had repeatedly tried to kill it entirely.
But there we were: U.S. House of Representatives v. Burwell, in which the Republican-controlled House sued over the failure to implement provisions of President Obama’s signature health insurance law that the same lawmakers who brought the suit said would cripple businesses by requiring large employers to provide insurance for workers.
Another, more obvious, claim from Republicans was that the administration was using a kind of slush fund in the Treasury Department to pay subsidies to insurance companies that hadn’t been included in the original legislation passed by Democrats alone four years earlier.
Obama was keeping his fragile program intact by withholding the sticks and being generous with the carrots. There were all kinds of lawsuits from states and organizations over specific provisions, notably the requirement that policies from religious groups still had to cover birth control and that very pricey employer mandate. But the House lawsuit was more fundamental: Did the president have a kind of “prosecutorial discretion” that went beyond the criminal law? Could the president move money around to pay for his priorities without congressional approval?
That question of prosecutorial discretion was a hot one just then. The day before the lawsuit was filed in November — which was just weeks after Democrats had taken a terrible drubbing in the midterms — Obama had unleashed a raft of executive orders to shield as many as 5 million migrants without legal status from deportation and grant them a path to citizenship. Rather than accept lame-duck status, Obama had announced before the election that he would stretch his executive authority to get around Congress. His ObamaCare moves and, more significantly, immigration decrees were pretty clearly meant to be understood as putting Republicans on notice that he would go it alone.
Democrats called the suit a stunt, and the party and the health care industry came down hard on the case, including scaring off the big law firm that had initially agreed to take it. Even some on the right who coveted executive power for themselves opposed the suit. Then there were the political calculations. What if the House won and employers got crushed by mandates and customers saw their premiums skyrocket?
But House Speaker John Boehner (R-Ohio) plowed ahead anyway.
“If this president can get away with making his own laws, future presidents will have the ability to as well,” he said. “The House has an obligation to stand up for the Constitution, and that is exactly why we are pursuing this course of action.”
Remember that this was back when Democrats were very fond of the Roberts court’s deference to executive authority. The decision he wrote upholding the mandates as a “tax” had vaulted Chief Justice John Roberts into the firmament with Earl Warren and David Souter as the kind of Republican-appointed justice whom Democrats could love. Strange new respect was all around.
When a Bush-appointed lower-court judge threw out the part of the suit about enforcement but let the part about the slush fund proceed, the White House responded by calling it “just another partisan attack” and vowed to win on appeal. But the case went ahead, and in May of 2016, the judge ruled that “Congress is the only source for such an appropriation, and no public money can be spent without one.”
Had Hillary Clinton won that year’s presidential election as was expected at the time, the case would have certainly landed in the high court and we might have seen what could have been the biggest case on the separation of powers in decades. But she did not win, and new House Speaker Paul Ryan (R-Wis.) swiftly came to terms with the incoming Trump administration to drop the suit because the new president would eliminate the dubious payments.
It was a smart play for Ryan because there was little sense in risking what could have been a ruling against congressional authority over a program that he, and most in Washington, believed would not survive the first year of the new administration.
As it turned out, everyone was wrong again. ObamaCare not only survived, but we are at this very moment watching Republicans discuss how long to extend extra subsidies passed in 2021 as a pandemic boost. Should it be for one more year or a $415 billion outlay to cover the next decade?
Obama was right about the premise of his executive overreaches. If he could just keep the program running long enough to get a critical mass of enrollments, it would become unrepealable from a political point of view.
Thanks in part to shifting partisan coalitions, Republicans are very much dependent on the working-class voters who like the expanded Medicaid benefits and the well-off older Americans who use ObamaCare to bridge the gap between employer insurance and Medicare.
Just as these subsidies will be extended, you can bet that one day Republicans will undo this year’s Medicaid cuts they craftily delayed until after the midterms. They took the revenue now for cuts that probably won’t ever fully go into effect. “Repeal and replace” has become “preserve and expand.”
But Boehner was right, too. One president got away with making his own laws, and future presidents have indeed done the same.
In the current funding fight, the power of Congress is to inflict pain by refusing to appropriate funds. And on the list of pain points in a shutdown, none surpass the troops going unpaid.
But by quiet, bipartisan assent, that’s being taken off the table as the president just moves some money around to make payroll. Just add that to the list of laws that the president either just ignores or skirts, from the unilateral declaration of war against drug cartels to the TikTok ban.
Stirewalt is the politics editor for The Hill, veteran campaign and elections journalist and best-selling author of books about American political history.
Source: The Hill
Be First to Comment