Notice & Comment

Shouldn’t I Keep My Mouth Shut?

Some people have asked me why I’ve been so hard on the administration for flouting appropriations law over the ACA’s cost-sharing reductions. Hasn’t the administration done the right thing to try to prevent health reform from collapsing? Aren’t the Republicans being hopelessly intransigent? Shouldn’t I just shut up?

I hear all that. I’m a committed supporter of the ACA and I don’t want to see it undermined. But much more than health reform is at stake here. From Carl Hulse in this morning’s New York Times:

Consider it in this context: How would lawmakers react if a willful new chief executive, unable to win money from Congress for a wall on the Mexican border, simply shifted $7 billion from another account and built it anyway?

How about if a future president were so determined to cut college costs that she bypassed Congress and funneled billions of dollars into a new tuition grant program without approval? Or what if a new president, claiming vast expertise on foreign policy, totally reordered Congress’s carefully drawn Pentagon spending plan?

It’s safe to say members of both parties would accuse her—or him, as the case may be—of blatantly shredding the Constitution.

That is what this latest health care fight is really about.

I’d go further. Lawlessness today creates a precedent for lawlessness tomorrow. From my forthcoming piece in the Pennsylvania Law Review:

Slow to act and difficult to raise from its torpor, Congress is at a decided disadvantage when it comes to regulating executive conduct, especially on the international plane. But it is not altogether inactive; in particular, the appropriations power gives Congress substantial leverage over the executive even in domains—like foreign affairs—where Congress has seen its influence decline. Whittling away at the appropriations power thus sets a dangerous example, at least for those who worry about the rising tide of executive authority.

I care about health reform. But I care even more about the rule of law, and I worry we’re losing sight of that.


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