Opinion Forum

How the New Congress Can Roll Back Obama’s Agenda

November 6th, 2010

Soon to be former Speaker Baghdad Bob’s Pelosi’s assessment on November 2 that the Democrats would hold the House of Representatives to the contrary notwithstanding, it will no longer be under “liberal” Democratic Party control come January. Perhaps she will not like the results when she sees them. The conservatives seem to be in the ascendancy, with more than sixty House seat gains, six Senate seat gains (including the Obama seat in Illinois), and at least ten governorship gains. There is lots of election analysis elsewhere, and I won’t try to provide more of it here; suffice it to say that the people have spoken, loudly and effectively. Despite all spin, President Obama won’t be able to get contentious new legislation through the Congress, and the House can prevent the funding of some Obama initiatives already passed; Yes he Can’t. Lame-duck congress? Bad stuff may happen but there are cures.

Senator DeMint of South Carolina said during his victory celebration that the Republican Party must not only challenge the Obama initiatives but must also remedy its own excesses:

These Republicans know one thing: If they don’t do what they say this time, not only are they out, but the Republican Party is dead, and it should be.

Even though President Obama retains veto power over legislation and in any event still has a somewhat compliant Senate, he need have little impact on the power of the Congress to unravel some of his worst initiatives; the Congress had better do it; this article suggests how.

The green stuff being spewed around is not “ObamaMoney”; there is no “ObamaMoney.” It all comes from taxes and appropriations passed by the House and the Senate — or from borrowed funds as approved by both houses. The provisions of the Constitution so providing mean what they say, for some pretty good reasons; at this juncture they are critically important. Under Article I Section 7:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The White house web site states:

Appropriations bills are initiated in the House. They provide the budgetary resources for the majority of Federal programs, but only a minority of Federal spending.

The House has been very protective of this prerogative despite some dissent in the Senate:

[T]he Constitution is clear about revenue legislation but does not directly address appropriations, or spending, measures. Extending the House’s right to originate to the spending category has been a matter of long dispute between the House and the Senate. The Senate has repeatedly asserted its right to originate spending legislation, adopted resolutions to that end, even called for commissions to study the dispute. However, the House has a different perspective. House precedents have defined “revenue measures” to include general appropriations bills, claiming that at the time the Constitution was adopted, “raising revenue” meant “raising money and appropriating the same.”

So, whenever the Senate does initiate appropriations legislation, the House practice is to return it to the Senate with a blue piece of paper attached citing a constitutional infringement of House prerogatives. The practice of returning such bills and amendments to the Senate without action is known as “blue-slipping.”

Without House action, Senate-initiated spending legislation cannot make it into law. So in practice, the Senate rarely attempts to initiate such bills anymore, and if it does, the House is diligent about returning them. Regardless of one’s opinion of the correct interpretation of the Constitutional provision, the House refusal to consider such Senate legislation settles the matter in practice.

Article I, Section 8 provides:

The Congress [both houses acting together, not just one] shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . … To borrow Money on the credit of the United States … .

Article I, Section 9 provides:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Article II confers none of these powers on the president. Hence, without the Congress, and particularly the House, the president can’t fund his rejected initiatives, by appropriations, taxes, or borrowing money.

There are lots of ways to cut federal spending, and some of them make sense. The National Endowment for the Humanities perhaps; there are lots more. However, first things first.

Continue reading this article at Pajamas Media »

Articles written by Dan Miller
Tags: appropriations, Congress, election, House, revenue, Senate, spending, veto
Categories: Law, Politics | Comments (19) | Home

19 Responses to “How the New Congress Can Roll Back Obama’s Agenda”

Brian | November 7th, 2010 at 10:24 am

They should exercise their power over the purse to get the clowns in the 9th circus in line, too. There is precedent – Jefferson did it, or at least threatened to do it.

Dan Miller | November 7th, 2010 at 10:59 am

Brian, I don’t think that would work very well. Article III of the Constitution provides,

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

What would you decline to fund? Office refurbishment, supplies of legal pads, salaries for law clerks?

I also don’t think it’s a good idea and would hate to see any precedent established for punishing courts, let alone individual judges, for unpopular decisions. That would mean “so long independent judiciary.” If the folks in the Congress would write unambiguous legislation with great specificity, leaving as little as possible up to executive, agency and judicial interpretation, and if the honorable members would bother to read legislation before voting on it things would be much better.

Tom Carter | November 7th, 2010 at 12:44 pm

Dan, I agree. Congress could do a whole lot to control the flexibility courts can exercise by writing laws that are clear and specific. In some cases, they can also enact laws that in effect moot court decisions. DOMA is an example of that, even though it’s probably unconstitutional itself. What you’ve discussed, though, is the greatest power of all — control of the purse.

Some also have the idea that Congress can limit the jurisdiction of the federal courts under Article III, Section 2. Unfortunately, that’s not what it says. What Congress can do is regulate the appellate jurisdiction of the Supreme Court, and that’s rarely happened. In any case, it wouldn’t be a solution to disagreement with the decisions of federal courts in general. The only answer is for Congress to do a better job of legislating. Fat chance.

Dan Miller | November 7th, 2010 at 12:58 pm

Tom, perhaps I am overly optimistic to the point of senility, but I think that the Congress, under lots of pressure from We the Idiots, can do a far better job of legislating. It had better, and since campaigning for the November 2012 elections has already started we had better stay at least as involved as we were during the months leading up to November 2 of this year.

Federal public office (aside from the judiciary) is not owned, it is merely borrowed; if our Congresscritters haven’t figured out yet that they can be evicted, some remedial instruction is necessary.

Tom Carter | November 7th, 2010 at 1:55 pm

Amen to that! I hope the high level of public interest and involvement doesn’t die between now and the next election. What we need to show all politicians every couple of years is that they aren’t immune to the will of the people (what a sad thing to have to say!). Give the Republicans the Senate next time and more seats in the House, and the presidency to boot, and see how they do. If they aren’t up to it, then throw them all out and put the Democrats back in. Maybe they’ll eventually get the point.

Too bad the likes of Reid and Frank survived this year. Maybe Barney will get his come-uppance (alert: subtle pun) next year.

Dan Miller | November 7th, 2010 at 2:43 pm

Had I been aware of this excellent October 28th article from the New England Journal of Medicine when I wrote this article, I would certainly have doffed my hat and said “Thanks!”

Customarily, substantive legislation “authorizes” spending, but the funds to be spent must be separately “appropriated.” The ACA contains 64 specific authorizations to spend up to $105.6 billion and 51 general authorizations to spend “such sums as are necessary” over the period between 2010 and 2019. None of these funds will flow, however, unless Congress enacts specific appropriation bills. In addition, section 1005 of the ACA appropriated $1 billion to support the cost of implementation in the Department of Health and Human Services (DHHS). This sum is a small fraction of the $5 billion to $10 billion that the Congressional Budget Office estimates the federal government will require between 2010 and 2019 to implement the ACA. The ACA appropriated nothing for the Internal Revenue Service, which must collect the information needed to compute subsidies and pay them. The ACA also provides unlimited funding for grants to states to support the creation of health insurance exchanges (section 1311). But states will also incur substantially increased administrative costs to enroll millions of newly eligible Medicaid beneficiaries. Without large additional appropriations, implementation will be crippled.

If ACA opponents gain a majority in either house of Congress, they could not only withhold needed appropriations but also bar the use of whatever funds are appropriated for ACA implementation, including the implementation of the provisions requiring individual people to buy insurance or businesses to offer it. They could bar the use of staff time for designing rules for implementation or for paying subsidies to support the purchase of insurance. They could even bar the DHHS from writing or issuing regulations or engaging in any other federal activity related to the creation of health insurance exchanges, even though the ACA provides funds for the DHHS to make grants to the states to set up those exchanges. (emphasis added, footnotes omitted)

Thank you, kind Sir, thank you. I wonder whether uncontrollable giggling, although a preexisting condition, is covered by ObamaCare.

The article continues by suggesting that gridlock and government shutdowns could occur unless someone backs down; true with an omnibus appropriations bill but not if the appropriations bills are agency specific and sufficiently detailed.

Dan Miller | November 7th, 2010 at 5:46 pm

Here are some great ways our thrifty and sensible government is helping everyone every day, with neither fear nor favor. Eat your cheese! No! It’s fattening and flatulent cows cause global warming. We know best! Well, yes I agree; of course we do; we just disagree and need lots more funding for scientific studies to settle our little argument. Please be generous when the hat is passed. We deserve the very best government possible and that requires lots of funding.

Tom Carter | November 7th, 2010 at 7:27 pm

The cheese article is depressing — our government at work! But I have a solution. Make the most fat-laden cheese possible, then ship it to China and the Middle East at significantly reduced, subsidized prices. That could help with both our economic competitiveness problems and with national security. Then see who has the cheese-eatin’ grin!

Brian | November 7th, 2010 at 9:15 pm

Dan, the justices can retain their titles, but there’s nothing in the constitution that requires the congress to fund the operation of the courts themselves – the clerks, the office space, the electricity bill… And as I said, there is precedent.

Dan Miller | November 8th, 2010 at 4:55 pm

Brian, be that as it may, would you really like to see a two rather than three branch government? The Fourth Estate would not suffice as a replacement.

I agree that sometimes, OK often, some of the courts do stuff with which I disagree. However, sometimes the courts get it right and that, I submit, makes them valuable.

If nothing else, think of the children! How many children of attorneys would face the deprivations of poverty were your suggestions implemented? Great Zeus! I am breaking out into a cold sweat.

Clarissa | November 8th, 2010 at 11:48 pm

When Obama won the Presidency, I heard a lot from the Conservatives about the need for bipartisanship. Dan Miller, as a noted conservative thinker and analyst, how do you feel about the possibilities of bipartisanship between the recently elected Republican government and the Democratic President Obama.

In my question, I am not trying to be sarcastic in any way. I honestly wish that more cnservatives were as straightforward and well-informed as you are.

“Tom, perhaps I am overly optimistic to the point of senility, but I think that the Congress, under lots of pressure from We the Idiots, can do a far better job of legislating.”

-Self-effacement aside, I couldn’t agree more. If that only were the case! We need more brave and decisive legislation from the Congress that has been – pardon the expression – pretty much castrated in the past 2 years. Who do you mean by “we the idiots” in this case?

Dan Miller | November 9th, 2010 at 10:32 am

Thanks, Clarisa, flattery will get you everywhere. As to bipartisanship, I haven’t seen much of it for the past several years and I expect even less now.

There are several reasons. It is unfortunately of great significance that politicians, regardless of party and ideology, are human and remember big and petty slights, actual and perceived. Republicans remember President Obama’s comments about being permitted to ride in the car but not to do any of the driving. They want to do some of the driving and with control of the House and therefore of the purse will at least be in a position to apply the brakes; maybe even to turn the steering wheel and to hit the accelerator now and then. President Obama does not seem likely to change his position on who gets to drive, even though He Won big time in 2008 but lost big time this year — in large part due to voter rejection of his policies. He seems to understand only that He Won and they lost big time in 2008. They don’t enjoy being maligned as “racist” whenever they oppose a “liberal” initiative or just for being Republicans. They certainly won’t forgive and forget Speaker Pelosi’s use of her majority power to shut them out of the legislative process, placing them in situations where they could do little more than to obstruct. That may have been her proper function, but that won’t much matter and in any event they are now in a far better position from which to obstruct, and not only through control of the purse. There will probably be less Republican — Democrat bipartisanship than RINO — T.E.A. groups bipartisanship, at least partially because the T.E.A. groups are powerful forces to be courted for the 2012 elections; symbiosis is important. Some of these factors apply to the Senate as well as to the House.

Should the large Republican/T.E.A. group majority in the House be bipartisan? Where there are areas of potential agreement — and those areas should be recognized and explored — yes. In other areas, such as refusing to fund various of President Obama’s agendas which they despise, no, and they can do very well without bipartisan cooperation with the Democrats for the reasons suggested in the article. It must be kept in mind that the new Congress will be more divided than the present Congress, with more conservative Republicans and fewer moderate Democrats. If, as appears likely, Speaker Pelosi becomes the House minority leader any bipartisan possibilities will be greatly diminished, except to the extent that some of the more moderate Democrats dissent from continued Pelosi rule and ally occasionally with the Republicans because they feel left out by the Pelosi team; that would, I suppose, be a species of bipartisanship. To a lesser extent, there may be some of that in the Senate as well.

As to my “we the idiots” comment, I was referring sarcastically to most of us, everywhere on the political/ideological spectrum, but particularly to those who ignore reality and derive most of their information from entertainment programming and to those who otherwise just don’t care; the latter two are probably hopeless.

For others, there are more numerous and more diverse sources of information than ever before. Accessing only those sources which one finds congenial is a mistake. If for no better reason than to oppose their positions, conservatives need to know what Huffington Post, Daily Kos et al are saying and “liberals” need to know what the various conservative sources — Drudge, Free Republic, Lucianne, Pajamas Media and American Thinker for example — are saying; the first three are basically selective aggregators. Check out CNN, MSNBC, et al as well as Fox. I receive a World Net Daily email and skim article titles mainly by the religious right. I generally find them pretty weird but on rare occasion I find something worth reading. Ditto Care2Causes, on the left. Canada Free Press from the right sometimes has some good stuff, but is very often completely off the wall.

Unless “we the idiots” retain and increase for the long term the level of involvement seen during the past few months, the “powers that be” in the political class will prevail and the rest of us will be the losers.

Tom Carter | November 10th, 2010 at 10:14 am

Dan, you’ve got it exactly right on the need to read and listen to those whose views are different from one’s own. Too many people just aren’t interested in different points of view, and that goes a long way toward understanding the ignorance so much on display among blog commenters and — God forgive me — exalted pundits.

Bipartisanship is very poorly understood. When one wishes for it, one should be wishing that politicians would be civil toward one another and work together productively as much as they can. However, it’s obviously not possible to compromise on some fundamental issues. To think otherwise isn’t logical. Obama’s pronouncements on bipartisanship were little more than empty, cynical campaign rhetoric — unless he doesn’t understand the concept, and I kind of doubt that.

Clarissa | November 10th, 2010 at 7:58 pm

“Obama’s pronouncements on bipartisanship were little more than empty, cynical campaign rhetoric — unless he doesn’t understand the concept, and I kind of doubt that.”

-I find this discussion very interesting and enlightening. Could you name the politicians whose “pronouncements on bipartisanship” you find convincing?

Dan Miller | November 10th, 2010 at 8:29 pm

Clarissa, I can’t because I haven’t seen any. Most appear to favor bipartisanship provided that it means agreement by the other side. Requests for bipartisanship generally come from members of the party which lost. There can, of course, be bipartisan agreement on non contentious matters — a resolution praising a winning local football team for example — or when going along to get along is needed for an earmark or otherwise to get reelected by a moderate/conservative constituency. Beyond that sort of thing, it does not seem to be in the cards.

Clarissa | November 10th, 2010 at 10:31 pm

Dan Miller: unfortunately, I think you are absolutely right. It’s very refreshing to see this kind of lucidity in a political analysis. Especially, from someone whose politics is so different from mine. 🙂

If we are capable of dialogue, maybe one day our politicians will? I just want to be hopeful.

Tom Carter | November 11th, 2010 at 4:57 am

No, Clarissa, I can’t name a politician whose pronouncements on bipartisanship are convincing. I’m sure there are some who say it and mean it in a realistic sense, but I haven’t heard that lately.

The reasons I couldn’t bring myself to vote for Obama, even though I would have liked to given the alternative, were his lack of relevant experience, his lack of demonstrated management ability, and the substance-free rhetoric of his campaign. Anyone who knew anything about politics and government should have been able to see through the glitz and media hype. In addition to the silly pronouncements on bipartisanship, there was stuff like “We are the ones we’ve been waiting for” and, when he won the nomination, “This was the moment when the rise of the oceans began to slow, and our planet began to heal.”

All of that stuff was either cynical or ignorant, and I doubt the latter. Now look where it’s gotten us.

For cynical or maybe ignorant campaign rhetoric, however, not much surpasses this 2004 statement by that ol’ hounddawg John Edwards: “If we do the work that we can do in this country, the work that we will do when John Kerry is president, people like Christopher Reeve will get up out of that wheelchair and walk again.”

Are politicians stupid, or do they just think we’re stupid?

Michael | November 11th, 2010 at 5:32 pm

Our politicians are simply a reflection of our current culture, despite all the complaining and moaning that goes on otherwise (myself included)

Contrary to what Tom said, Obama’s lack of experience was not the problem. Even if he was the CEO of a big corporation I still wouldn’t vote for him. His problem was that he didn’t know a damn thing about economics or the principles of freedom much like his predecessors e.g. Bush who payed lip service to free markets and gave as “compassionate conservatism”. He simply offered new dressing for the tired, compromise-cobbled nanny state: government health insurance, help for some in an economic downturn, protection from jobs moving overseas. (He could not bring himself to vote against the Farm bill)

I believe that his campaign revealed how the concept of idealism itself has been watered down by our culture of pragmatism. Obama-mania was not the idealism of rational principles or even of principles. It was the pragmatic patchwork of what makes crowds of people feel good—“what works for me.” When you tried to identify the content of the ideals that were gripping his supporters, all that one could find is emotionalism, amounting to the explanation: “I get goose bumps when I hear him speak.”

The “hope and change” slogan was for a largely post-partisan America, where people’s differences (of race, income, gender, etc.) are overcome, and where we are all comfortable with ideological diversity. The problem is when you embrace such diversity you ignore the substance of an ideology i.e. one’s views about what is real and what is important and it consequently becomes of little significance. Getting along was more important than where we are going and here we are now.

finally I’d like to say that we live in a society that thinks that the middle is the normal and that any kind of certainty falls on the two extremes on the outside (kinda like a bell shaped curve). “Extremist” is a dirty word and “ideologues” such as myself are considered one step shy of the asylum.

I voted against the democrats but I have no delusions about the republicans changing much.

Tom Carter | November 11th, 2010 at 7:27 pm

Well said, Michael. One thing I would point out is that Obama’s lack of qualifications and experience made him a cipher, a politician who was more of a wildcard that a known quantity. Aside from all the meaningless blather about a new era of bipartisanship, if he had been a more solid politician, leader, and manager, he would have run things a whole lot differently. For example, he wouldn’t have rammed through health care reform because he would have understood the political costs it would exact. He would have tried to work with the opposition to achieve those parts of his programs that could have gained wider support. And so on. If he had been better at it, his party wouldn’t have suffered so badly in the elections.

Our society doesn’t just think that the middle is the normal; it in fact is the normal. Your bell curve analogy is apt — America is a center-right country, with the large majority of people falling between the limits of moderate Republican/conservative and moderate Democrat/liberal. A large part of that hump in the middle is independents and moderates, and they largely swing elections. Whether “extremist” is a dirty word is a matter of opinion, but extremists exist on both ends of the political spectrum, and their influence on the body politic is often pernicious.