No, Republicans Aren't Trying an End Run Around the Constitution
Now that we seem to be on the verge of a deal on a continuing resolution to fund government operations, the postmortems will be flying furiously. I recently heard a television commentator remark that the most outrageous thing about the entire battle was that the House Republicans were trying to do an end run around the Constitution by seeking to defund the Affordable Care Act, a statute already passed by Congress and signed into law. This strikes me as wrongheaded.
Let me be clear: I am not defending the actions of Republican members whose opposition to the Affordable Care Act has led to a willingness to shut down large portions of the government, and, for a while, implied a willingness to let the nation go into default. But it is important to keep this critique separate from the claim that there is something radical or even unusual in trying to zero out a program that Congress has already authorized. That happens all the time.
For example, President Barack Obama, in his budgets for the fiscal years 2011 and 2012, proposed to delete federal funding for the Yucca Mountain nuclear waste storage facility in Nevada. In his 2009 budget, he sought to defund the so-called “marriage initiative” programs administered by the Department of Health and Human Services. And his budget regularly zeroes out funding for the Opportunity Scholarship Program, popularly known as the D.C. voucher program.
In each of these cases, the administration has sought to eliminate a program by cutting off funds for it rather than repealing it. And yet there was no outcry of anguished commentators complaining that the president has invented a new means of amending a statute, or is making an end-run around the Constitution, or is in some other way violating some sacred norm of U.S. governance.
And the president’s opponents were wise to hold their fire. It is neither unusual nor threatening to any deep national value for opponents to try to reduce its funding to zero. It happens all the time, an artifact of the arcana of the federal budget process.
Under the rules of both houses of Congress, appropriations may be made only after authorizing legislation is adopted. Congress might tomorrow pass legislation authorizing an annual expenditure of $10 million to support struggling columnists, but not a single dollar may be disbursed until a separate bill appropriates the money. If no money is appropriated, the authorizing statute remains on the books, but the program has been successfully defunded.
This happens all the time, even in continuing resolutions to keep the government open in the midst of a budget battle. To take a famous example, the 1985 continuing resolution deleted funding for the Nicaraguan rebels known as the Contras. President Ronald Reagan planned to veto the defunding if presented as a separate piece of legislation, but signed the resolution and accepted the ban in order to keep the government open. And of course the government shutdown of 1995-1996 was triggered when Republicans, misreading the political winds, loaded the continuing resolution with riders that President Bill Clinton refused to accept.
The Affordable Care Act is the signature legislation of Obama’s tenure. In budgetary terms, however, it is just another law, subject to the vicissitudes of the appropriations process. One might consider the act a vital step toward delivery of health services that is rational, efficient, and equitable. Or one might believe that it is a destructive and wasteful federal takeover of 18 percent of the nation’s GDP. Either way, the effort to zero out its funding, even in the midst of negotiations over a continuing resolution, is just Washington business as usual -- for both parties.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.” Follow him on Twitter at @StepCarter.)