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How the New Congress Can Roll Back Obama’s Agenda

Everything the government does requires money and there is no ObamaMoney.

by
Dan Miller

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November 6, 2010 - 12:04 am

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.

The House must provide separate and detailed appropriations bills.

Appropriations bills are usually lengthy and cumbersome omnibus beasts, little read and less understood. That legislative process is not fixed in concrete. Indeed,

“There is no legislative process anymore,” said Fred Wertheimer, the legendary open-government activist who has been monitoring Congress since 1963. “Bills are decided in advance of going to the floor.”

. . . .

The House Rules Committee, which is meant to tweak the language in bills that come out of committee, sometimes rewrites key passages of legislation approved by other committees, then forbids members from changing the bills on the floor. Only five times this year [2004] were House members allowed to amend policy bills on the floor, and only 15 percent of bills this year were open to amendment. For the entire 108th Congress, just 28 percent of total bills have been open to amendment — barely more than half of what Democrats allowed in their last session in power in 1993-94. Further, the Rules Committee has blocked floor votes on legislation opposed by the Bush administration but supported by a majority of the House. For example, a bill to extend benefits to the long-term unemployed has been kept off the House floor despite what backers say is the support of a bipartisan majority.

Some of that must change and, since the Republicans will control the House and therefore the House Rules Committee, much can be done to grab hold of the appropriations process. The House rules are cumbersome and change every session, particularly whenever there is a change in the party holding the majority; they are often difficult to understand. That’s one of the reasons why the House Rules Committee is one of the most important committees. It sits rather like a coven of high priests, whose machinations control what the lesser priests do. Each committee also has its own rules, which have similar effects.

If the new Congress takes its obligations and powers seriously by initiating many separate, agency specific, selective, and detailed appropriations bills, the Obama administration will be between a rock and a hard place indeed. “No funds hereby appropriated for the ___ (insert here EPA, FCC, Department of Justice, Department of Education, etc.) shall be used to … .” For example, if the separate EPA appropriations bill were to prohibit the use of any funds thereby appropriated for the promulgation, adoption, or enforcement of any rule or regulation limiting carbon dioxide emissions to less than some stated number of parts per million, the president could veto it. He would not, because that would in effect shut down the entire EPA; that would hardly serve his objectives and would visibly irritate mainly his remaining comrades. Indeed, it would have almost but not quite the same effect as abolishing the EPA outright, which the Congress without a veto proof majority could not do. Unlike the situation with a massive omnibus appropriations bill, a veto won’t shut down the entire government and won’t work because the inoffensive parts of the government could continue to function. Refusal of the Democratic Party-controlled Senate to approve the House bill wouldn’t work either, for the same reason. Even “lame-duck” legislation can be effectively repealed by refusing to fund it.

As observed in the New Republic:

What they will be able to do … is undermine the work of regulatory agencies like the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Federal Communications Commission (FCC).

The article is right on point as to President Obama’s power. Federal agencies and departments are principal factors making government too damn big, slow, inefficient and intrusive and that would be an excellent place to start. Even a Congress with both houses under Republican control but lacking a veto proof majority could not eliminate them, but with the House under strong Republican control it can make it very difficult for them to function in undesirable ways by cutting their funding and specifically disallowing certain expenditures. As the author of the New Republic article linked above observed, “That’s reason enough to worry about the outcome of the coming election.” Or, on the other hand, to be optimistic.

If the House does its job, the various agencies can be put in their place. They won’t like that, and will fight back; how effectively is unclear. This prediction does not seem entirely correct:

So if the president loses Congress, how will he make good on his threat to punish those who took it from him or let it happen? That avenging “we” isn’t going to be the now-Republican Congress. It will be the federal bureaucracy led by the executive branch. As Krauthammer notes, “over the next two years, the real action will be not in Congress but in the bowels of the federal bureaucracy. Democrats will advance their agenda on ObamCare, financial reform and energy by means of administrative regulation, such as carbon-emission limits imposed unilaterally by the Environmental Protection Agency.” That will be the main card for 2011, and what a humdinger it will be. If a conservative Congress attempts to cut back on the agencies, the giant bureaucracy will be fighting for its life. In that capacity it will be formidable. In zero-sum game against the president and the agencies, Congress may be the political underdog without allies.

True, with a massive unitary appropriation bill President Obama could threaten a veto to shut down the entire government if he doesn’t get what he wants — the Veterans’ Administration, hospitals, law enforcement, and even the Washington Monument — thereby putting the “obstructionist” Congress in a very bad light.

Police stations will be shut down, fire fighters will be laid-off, the dead will be lying in the streets, no toilet paper in schools, killers will be let out of prison, terrorists will be everywhere, the world will come to an end… Meh.

Under the perhaps radical procedures suggested here, that is very unlikely.

Oh. One more thought: the new Congress should adopt a novel Muslim outreach program — No More Pork! It won’t, but it should.

There are, of course, more steps which the new Congress could try to take. Unfortunately, many of them would be thwarted by the president’s veto power even if the Republicans held both Senate and House majorities. Constitutional amendments? Probably not yet. There is more than enough to do with the House appropriations process, and that’s where the principal focus should be.

Upon assuming office in 2009, President Obama took a strict partisan stance — I won, elections have consequences, and Republicans must get in the back of the bus, car or whatever; they are not going to be permitted to drive. Now, he remains in the driver’s seat but won’t be able to buy fuel to drive his vehicle or pay for its maintenance; he knows it. His agenda is very much at stake; he said that “I will regret if we have trouble implementing [ObamaCare] because we don’t hang on to the House and Senate (emphasis added).” Ditto the rest of his agenda. The Republicans have been given power which they may not yet realize they have; they had better get busy and exercise it.

The new Congress will not be seated until January; the Republican members should not waste time between now and then. Instead, they should meet and plan an effective strategy for refusing funding to the various obnoxious agencies and departments while avoiding complete governmental collapse. They should not be the Party of No on everything; only on those initiatives rejected by the electorate.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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