In addition to the power to enact important reforms like the REINS Act and the USA Freedom Act, Congress has another time-honored power to exercise when it needs to stop an overreaching executive. It is a power wielded far too infrequently in recent years. And it is a power that James Madison described in Federalist 58 as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Madison was talking about the power of the purse. Without congressional approval, no federal program can be funded, and without funding, no program can be implemented. By simply refusing to fund a president’s unconstitutional conduct, Congress can stop him dead in his tracks— even after courts have abdicated their responsibility to do so.
I was reminded of this principle on July 2, 2013. I was in my office in Salt Lake City when a member of my staff told me to turn on the news. What I saw was shocking. According to the report, President Obama had decided to delay Obamacare’s “employer mandate,” which requires many businesses to provide their employees with health insurance. Even though the legislation pushed through Congress and signed into law by President Obama himself required the employer mandate to kick in at the beginning of 2014, the president was delaying this provision’s effective date by a year.
There was absolutely no statutory authority in Obamacare permitting the president to rewrite the provision pre-scribing the starting date for the employer mandate. Nor did President Obama have any inherent constitutional authority to do so. Quite to the contrary, the Constitution’s text and structure make clear that a president lacks the authority to rewrite legislation unilaterally, i.e., without any action by Congress. The first clause of the Constitution’s first article is as simple as it is clear; it provides, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In other words, the power to legislate— that is, the power to make law— belongs to Congress. When the president rewrites acts of Congress, he usurps Congress’s “legislative powers,” upsets the Constitution’s balance of power, and turns citizens into subjects by denying their directly elected representatives the exclusive authority to make the laws that govern their lives.
Congress needed to use its “most complete and effectual weapon”—its power over the federal purse.
By late September 2013, America’s political leaders had a choice to make. If October 1 arrived before Congress funded the government for the next fiscal year, countless federal programs would run out of money. The question was: Would Congress pass a spending bill amenable to the House, the Senate, and the president before October 1, and would such a measure include funding for Obamacare?
The question was complicated by an obscure but remarkably significant change in how Congress has allocated funds in recent years. Congress has historically funded the federal government first by passing a budget and then by enacting a series of spending measures (a dozen or so), each of which appropriates money for a different government function (e.g., defense or transportation). When Congress follows this time-honored process, each spending measure is independently proposed by a committee, debated on the floor, amended, voted on, and sent to the president for his signature. This process has a way of keeping spending discussions in Congress focused. For example, it helps create an environment in which decisions regarding defense-related spending will be influenced by concerns related to national defense, not national parks, and decisions regarding national parks will be influenced by concerns related to national parks, not national defense.
Had Congress simply followed its own appropriations process, it would have been far easier to have an open, honest debate regarding the merits of Obamacare.
Congress, however, has been disregarding that process since 2009. Instead of budgeting and then proposing, debating, amending, and passing a series of smaller spending bills, Congress has been keeping the government funded through a single, enormous, all-or-nothing spending package. If the giant bill becomes law, the government stays funded. If it is voted down or vetoed, some of the government shuts down.
This flagrant departure from the traditional budgeting and appropriations process has put our country on a collision course with disaster. Congress routinely spends money it doesn’t have— creating trillion-dollar deficits— because senators and congressmen are afraid to vote against an all-or-nothing spending package, knowing that its defeat could result in a government shutdown. Meanwhile, meaningful oversight of the executive branch has become impossible because, without voting against funding the entire government, members of Congress can no longer say, “Hey, you’re running this particular program poorly, so we’re going to cut back on funding it until you get your act together!”
By late 2014, after President Obama had repeatedly usurped Congress’s authority and rewritten Obamacare dozens of times, it was clear that we were not well positioned to stop his assault on the Constitution. At least for the time being, he had won, and we had lost; rule by executive fiat had won, and the separation of powers had lost; the transformation of the relationship between the government and the governed had won, and the Constitution’s creation of a federated structure with enumerated and limited powers had lost.
This was, however, only a single battle. The larger war for the Constitution goes on. As long as our government remains in the hands of fallible humans, some of them will seek perpetually to expand and even abuse their power. At the same time, the Constitution will stand ready to restrain those individuals and protect our liberty— if only we are willing to fight for it.
Reprinted from Our Lost Constitution by Senator Mike Lee with permission of Sentinel, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright (c) Mike Lee, 2015.
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