As the shutdown moves into its second week, I remain convinced that President Barack Obama should stand firm against the radical elements of the House and Senate for two reasons: to protect the constitutional powers of the executive and to preserve the idea of compromise and deliberation in Congress. It is possible to preserve the latter by remaining intransigent now.
President Obama is not being asked to compromise, he’s being asked by a small minority in both Houses to cave on a signature legislative accomplishment. There’s a big difference.
Compromise lies at the heart of the American experience and it was through our original compromises that we ended up with a system designed for political struggle.
The Founders arrived at the separation of powers as a way of dealing with the conflicts of their time. Hence the creation of a tripartite form of government where each branch would compete against the other for power. This type of governing arrangement is by its very nature somewhat vague: the executive, legislative, and judicial powers are not so neatly packaged. Each branch can play a role in the affairs of the other and this is how the founders intended the system to work. So throughout our history we have had a lot of confusion about the appropriate jurisdictions of the branches, specifically the executive and legislative branches. That leads to intense political struggles that are, on the whole, healthy for our republican system.
A government shutdown or debates over the debt limit are often the result of this constitutionally ordained invitation to struggle. But the current shutdown, and the potential default on our debt, have at their core an attempt to tear down this President, and by extension executive power. For that reason, the President cannot cave.
Opponents of ACA may claim they are just using all tools available to oppose a bad law. In their view it’s a really bad law. But their legitimate claims are hard to distinguish from the hyperbole they’ve unleashed. Consider, for example, the latest meme on the congressional exemption from Obamacare. The exemption is a figment of wild imagination. It does not exist and it is telling the some members of Congress are willing to throw their own staff under the bus in their attempts to defund or repeal the ACA.
Some critics also claim that the White House is simply reaping what it has sown, that greater compromises during the early debates over ACA could have turned the Act into a modern-day Social Security with widespread and bipartisan support.
One is free to wonder whether the President engaged his political opponents sufficiently during the initial debates over the Affordable Care Act. One possible clue is, of course, that at the heart of the ACA is the individual mandate, a fairly mainstream Republican idea. The insurance exchanges also give a very big nod to the private sector. Both would appear to suggest a rather compromising position for a President accused of being a Marxist radical.
But I digress.
There is no rational reason why Congress should not seek to fix that which ails the ACA, monitor its successes and failures, and exercise precise oversight of the administration of the Act. Such a response would require the thoughtful deliberation that has been missing for much of this “debate.”
Deliberate they refuse to do. They only wish to repeal or defund through a shutdown or a default. A President who caves in the face of such a policy threat risks the standing of the executive.
American political history sometimes favors presidential power and at other times congressional power. This ebb and flow is a natural byproduct of our constitutional arrangement.
Presidential power expanded greatly with FDR and kept growing until the 1960s and the so-called imperial presidencies of Johnson and Nixon. During the post-Watergate era there was a resurgence in Congressional authority and the two branches mixed it up quite a lot during the 1980s and 1990s leading to an unprecedented modern era of congressional government immediately following the 1994 elections.
These shifts in power have at their root constitutional ambiguities.
Article II lists those things a president should do but are these the only legitimate powers or are others included? This question has been answered quite differently throughout history. President Taft said that the President could not do anything unless the action was specifically authorized by the Constitution or law. He wrote that the president “can exercise no power which cannot be fairly and reasonably traced to some specific grant of power.” His predecessor and mentor, Theodore Roosevelt believed differently.
TR said that is was the President’s right and duty to do “anything that the needs of the Nation demanded, unless such action was forbidden by the Constitution or by the laws.” Taft and TR present opposite ends of the continuum regarding the nature of interpreting Article 2.
Conservative columnist Charles Krauthammer takes Obama to task for delaying a key element of ACA–the employer mandate–suggesting it’s an example of a President ignoring the Constitution in his brazen pursuit of power. He takes the Taft approach.
Yet Article II says quite clearly that the executive “shall take care that the laws be faithfully executed.” Presidential prerogative provides enough flexibility for an executive to delay a legislative start date for a component part of a complex law in order for that law to be faithfully executed. Obama takes a TR approach.
This give and take, the Constitution’s continued “invitation to struggle,” as Edward Corwin noted, only partly animates our current environment.
The effort to demand repeal of ACA or elements of it during the shutdown as we approach default is not simply a parallel effort by Congress to assert its primacy.
It is a wholesale political and institutional attack on a specific public policy that was recently ratified by a national electorate. Should the President cave, his future successors will not simply face a resurgent Congress.
They will regularly find their policy agenda held hostage to a distinct minority with grandiose visions of its role. Compromise will never be in order if such a minority can punch well above its weight and presidents of both parties will be bystanders to the legislative process.
For the sake of his successors, the President should hold firm.