The President should continue to say no

The President should continue to say no to any continuing resolution that seeks to change the Affordable Care Act.  He should also continue to refuse to accept anything other than a clean debt ceiling vote.   Future presidents, Republican and Democrat, will thank him.  So will history.

The Affordable Care Act was the central issue of the 2012 presidential election. The challenger who promised its repeal lost decisively.  And while pure electoral mandates in our constitutionally divided system are often difficult to ascertain, the results of the 2012 election should have stifled the “repeal at all costs” crowd.

The history of complex legislation points to the need for fixing component parts that aren’t working properly or have created unintended consequences.  But the radical elements in the House and the Senate have prevented any meaningful effort to fix the Act.

With them it is all repeal, all defund, all the time even at the expense of shutting down the government or defaulting on our debt.

The President is right to accept none of it.  He should resist any effort to change one iota of the Affordable Care Act in order to lift the government shutdown.  He should resist piecemeal efforts to reopen parts of the government in exchange for changing, repealing, or defunding any aspect of ACA.

No President should be forced to accept changes to an important and complex piece of legislation under the threat of a government shutdown.  Certainly no President who wants to protect the constitutional status of the executive branch.

Changing laws should be the product of the normal legislative process and subject to electoral ratification, congressional oversight, and, possibly, judicial review.

A President who allows a radical element in Congress to dictate terms that run counter to the law, a Supreme Court decision, and the results of a national election will put the executive branch in a position of extraordinary constitutional inferiority.

President Eisenhower battled somewhat similar elements, lead by Republican Senator John Bricker, who sought to dramatically scale back the constitutional executive in matters of foreign policy.  Today’s radicals are no less dangerous to the executive.

Consider the need to raise the debt limit by October 17.  Most analysts agree that not raising the debt limit will have severe consequences for the national and world economy.  Yet the radical voices in Congress insist that a vote to raise the debt limit be tied to changes in the Affordable Care Act or additional spending cuts.

Congressional inability to raise the debt limit will call into question the validity of the public debt held by the United States, in direct violation of the express terms of the Constitution. 

Should Congress persist in this reckless vein, the President should issue an executive order pursuant to the terms of Section 4 of the 14th Amendment to ensure that all public debts are paid.

Such an action to protect the Constitution will have the added impact of protecting the world economy.  It will enrage the radical elements in Congress but, really, there is no end to that which enrages them.  Their rage is preferable to the alternative.

Imagine a constitutional universe where a radical faction in Congress, ignoring election results and settled law, can force the executive branch to make major policy changes by resorting to the time-tested threat of shutting down the government or defaulting on our debt.  Under what circumstances could any President pursue a policy agenda knowing that a faction of one party could successfully derail it by refusing the raise the debt limit?

The executive power should not be fettered by fringe elements that seek to upend democratic and constitutional norms in pursuit of their ideological agenda.  Presidential power in the future, to be exercised by Republicans and Democrats, depends on the current President’s willingness to stare down today’s radicals who have seriously overplayed their hand.

The President must defend his office by simply saying, “no.”

About Peter Ubertaccio

Peter Ubertaccio is the Director of Joseph Martin Institute for Law & Society at Stonehill College in Easton and Associate Professor and Chair of the Department of Political Science & International Studies. His work focuses on political parties, marketing and institutions. He received his Ph.D. in Politics from Brandeis University in Waltham, MA. Professor Ubertaccio and his family live on Cape Cod where he is on the Board of Directors of the OpenCape Corporation and the Sandwich Economic Initiative Corporation.
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