Obamacare, McConnellcare, Boehnercare or the Constitution

Posted on September 28, 2013 by


The jury is still partly out on the immediate fate of the Affordable Care Act.  After the heroic filibuster of Ted Cruz, the Senate ended debate and voted overwhelmingly to re-insert the funding language for “Obamacare” into the overall spending bill.  The vote was 79-19, so there were many Republicans voting with all of the Democrats.  Now the bill goes back to the House.  The much-maligned ACA may well end up being funded after all.  President Obama has said it makes no difference what the House or Senate does, and its provisions will take effect anyway, including the mandate.  

These are the basic facts about the political maneuverings here inside the Beltway.  But what are we to make of it all?  Have the “establishment” Republicans abandoned their constituents and their duty, as some have accused?  Or have they simply acted prudently, in the process ignoring their less moderate colleagues, for example, Ted Cruz?  Should Congress give up on repealing Obamacare for now and wait for a more favorable opportunity in the future?  Or has it given up too soon by not standing behind Cruz’s efforts?  I confess that from a purely strategic standpoint, I cannot answer these questions.  Nor do I know the motives of the moderates, though I would say that their rhetoric against the “Tea Party” Republicans appeared to be entirely too hostile, even petty.  Moreover we still don’t know what the House may do next week, though I suspect the vote will not produce a government shutdown.  And we may see that the act and its regulations, if implemented, may produce such a backlash that it might eventually be repealed or at least significantly modified.

The scenarios above might lead many conservatives to despair. Will we ever successfully stop the growth of the administrative state? I cannot answer that question, no one can. But I can say what seems to be a (maybe the) major problem with Congress in the last twenty or so years. The presidency has been analyzed almost to death and it probably doesn’t take a genius to conclude that though the actual Constitutional authority of the president has not increased, his influence has increased. Moreover the courts (Supreme Court) have not helped the situation by refusing to limit his ability to use executihttps://bereansatthegate.wordpress.com/wp-admin/tools.phpve orders that amount to legislation. Be that as it may, what is Congress’ failure and why is it coming to haunt American national politics.
As recent lecturer put it (John Marini, at a Kirby Center for Constitutional Studies, Hillsdale College in Washington, DC, September 26, 2013), though Congress has not relinquished its authority, it has relinquished its law-making powers. How? The ACA is a classic example. Through a series of more or less secret meetings involving congressional aides and others, a massive and virtually impenetrable bill was cobbled together. Its characteristic feature was its vagueness. This very vagueness meant that the actual meaning of the law would be given not be the terms of the act but be several (not just one) administrative agencies. Congress made a massive delegation of its power to the “administrative state.” Now the results seem to be in. The various agencies have produced over 15,000 pages of regulations, themselves difficult to navigate and themselves oppressive. Moreover these agencies are not accountable to the voters. Congress is left only with its oversight powers and these have become at times impossible due to the shear size of the agencies and their sometimes hostile relationship with Congress (not to mention with those whom they supposedly serve).
How can this problem be overcome? It cannot be overcome by any direct action. Rather Congress must recognize its place in a constitutional order such as the American order. This recognition can only be accomplished through persuasion–and through voter education about what constitutionalism ought to look like in the United States. This is a tall order. We can’t simply rely on the courts to “wake up.” Judicial decision-making itself in its contemporary context is fraught with its own problems, stemming from decades of legal philosophy influencing the minds of future judges (itself beginning in the Progressive Era). So “we the people” can’t wait for the courts to get us out of this mess. We are responsible and have the ideas to change the tide over time. We didn’t get here overnight and we will not accomplish beneficial change overnight. But we can start now.