The “Don’t Fund it” Option

The latest, and perhaps last, opportunity to toss a few stop sticks in front of Obamacare is coming up with the upcoming 2014 spending bill.  The Tea Party coalition wants to strip Obamacare funding from the spending bill, giving the President the option of either vetoing the bill, and effectively shutting down the government October 1st, or signing the spending bill stripped of Obamacare funding; stopping it in its tracks.  It’s not repeal, but it’s a delay, and delaying Obamacare implementation I would think is worth taking some chances.  Obamacare is bad law and worse public policy, and if there is a clear path to even delaying this bill (hopefully for some future period in which there is a change in political leadership), then that path should be followed.  Of course there are two (at least) problems with this: the House leadership and establishment Republicans want nothing to do with this idea, and it’s not clear there is an effective path to getting Obamacare defunded.

Official portrait of United States Senator Mik...

Official portrait of United States Senator Mike Lee. (Photo credit: Wikipedia)

The “Don’t Fund it” option is a real organized effort.  It even has a website to track the progress and pledges of the various Republican Senators and Senate candidates. However, as usual, the establishment is opposed to doing anything that might make either Democrats or the Washington media mad at them.  This default bowing to possible media reaction means that they don’t want to take the chance of looking “obstructionist” in front of the national media.  Speaker Boehner is particularly uninterested in anything that would make the House Republicans look confrontational. So I cheer the Tea Party Republicans who are willing to take a risk at slowing down a bad law.

On the other hand…

The House Republicans have failed to impress in follow-through before. Last year’s fiscal cliff disaster was an eye opening view into how dysfunctional the House Republicans can be.  Before Christmas they voted against an option, what was then known as “Plan B” in order to finally agree and vote for a worse plan, as I chronicled last January.  These guys are not master strategists.  This isn’t House of Cards. It’s not even Pee Wee’s Playhouse. I’ve seen no evidence that there are wheels within wheels of planning and maneuvering to accomplish the goal of defunding Obamacare.  Both the debt ceiling fight and the fiscal cliff debacle demonstrated the amateur hour of the GOP and nothing they’ve done since last December has given me any confidence that they have learned from past mistakes and could prevail in this fight.

That’s not to say there aren’t options available to getting Obamacare defunded.  Some ideas include:

The Republicans could fund the government in multiple spending bills, isolating the Obamacare funding into a separate bill, and basically passing everything but that. Then it will be on the Democrats in the Senate to vote against the rest of the clean government funding.

They could just add an amendment to the bill holding off the implementation of Obamacare for one, two, or even three years. Since the exchanges and a lot of other moving parts aren’t ready, this might be tempting for some Senate Democrats. Obama basically did something similar by fiat.

The House Republicans could offer to fund Obama’s infrastructure and jobs bill with the funds that are not spent on Obamacare implementation.

These are just a couple of ideas that I thought of, off the top of my head.  I imagine a skilled parliamentarian would have a much longer, and perhaps more realistic list.  But in reality it seems unlikely that there is either a skilled parliamentarian or a list of options of any kind available. So I’m left to wonder,

-      Is there an actual strategy that has a possible favorable outcome?

-      Are there contingency plans depending on different possible White House or Senate Democrat responses?

-      Is there a united message and talking points for all participants to use in media contacts?

-      Has this scenario been “war-gamed?”

I wouldn’t be surprised if none of these issues had been seriously considered.  And that’s why, although I would love, love, love to throw my whole hearted support behind a “don’t fund it” plan, I would only want to do it if I thought there was at least a reasonable chance of success, rather than the Republicans ending up worse off than if they had just done nothing, and the media spinning the Republicans as both stupid and evil, like with the fiscal cliff.  And there is a possibility that the Republicans could end up worse off than if they hadn’t done anything.  If the President and Senate Democrats stand firm (and why wouldn’t they?), all the blame will be spun in the media as Republicans taking away Social Security from the elderly, paychecks from the military… you get the idea.  At that point the ball will be in the Democratic court, and they may have their own conditions to get government funded again.

Catching a few media interviews with Senator Mike Lee over the past week, I didn’t get any indication that there was a well thought of plan that has a reasonable chance of success.  Instead, it sounded more like a last gasp.

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Obamacare on Trial

I realize that at this moment in time, far more people are concerned about Trayvon Martin’s tweets or George Zimmerman’s facial injuries, but this week there was something far more important happening, with much longer lasting consequences

The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

than anything that happens in Sanford’s Bonfire of the Vanities.  I’m talking about the oral arguments for the Patient Protection and Affordable Care Act, or as it’s more commonly known; Obamacare.

Not since the second Militia Act of 1792 has the Congress ordered citizens to purchase something.  In that case, it was a musket and accessories.  But that was under the President’s article 2 powers, not the commerce clause, so the Obamacare mandate to purchase health insurance is something brand new.  Unless you’re simply a statist who regards the State as superior to everything else in society, including the constitution, that’s a tough sell.  And Solicitor General Donald Verrilli showed that before the Supreme Court on Tuesday.

Verrilli has taken a lot of heat for his nervous stumbling and bumbling before the court, but I’m not sure if he had been composed, calm, and collected it would have made a difference.  He just didn’t have good arguments.  Particularly for questions that he must have known that he would be asked, as when Justice Kennedy asked about the limits of the commerce clause.  I don’t think even Joe Pesci from My Cousin Vinny could have saved this case.

I was particularly struck by the news coverage this week that the pundits, talking heads, and reporters simply accepted as a given that the four liberal judges would vote to uphold the law, no questions asked.  The debate seemed to roll around the idea that Justice Kennedy, the swing vote, could be persuaded to come down on the side of the law.  There was even some speculation that Chief Justice Roberts might put aside “politics” to vote to uphold.

Since of course to vote the law down is political, but to uphold the law would just be good jurisprudence!

But for the liberal judges there isn’t that sort of pressure.  No one is asking the liberal justices to “put aside politics.”  One of the benefits of being a liberal judge who believes in a living, breathing, constantly evolving constitution is that you don’t have to worry about the actual text of the constitution, or the intent of the founders.  A living constitution means never having to say you’re sorry.  Or, to put it another way, if the law feels good, do it.

Leave the cracking of books to the strict constructionist eggheads.

If the individual mandate goes down, it would be with a bit of irony, since President Obama originally opposed the mandate during the 2008 campaign, using some of the same arguments against Hillary that the President’s opponents are now using against him.

He should have stuck with his first instinct.

We’re not going to find out how this all plays out until later this summer when the court releases its decision even though the Justices likely voted on this issue today.  But I’m not afraid to go ahead and handicap the decision now.  My gut feeling is that the odds are better than even that the court will uphold the mandate.  I base that on the fact that the mandate has 4 automatic votes for.  So that means that only one vote is needed to be swayed among the other five Justices who actually have to study this case (unlike Ginsberg and Breyer, who will be windsurfing instead of reading law books).

But if the mandate is overturned, I think it’s likely that most of the law will stand intact.  I figure the Justices will just throw this mess back to Congress to fix the creaking boat of Obamacare with a mandate sized hole in the bottom of it. The Congress, divided as it is, will be able to accomplish nothing.  At least until next year.  And what then happens to health reform will largely depend on which party does well in November.

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