As all this elucidates, Obama himself is already defunding Obamacare. He has already demonstrated beyond cavil that the program is not ready to be applied as the enabling legislation commands. Conservatives need to be better at hammering this theme. Despite the White House campaign to paint them as extremists, Republicans are merely trying to do what Obama is already doing – except do it more fairly and more faithfully to both the terms of the statute and the debate over its passage.
That brings us to propriety. No president has authority to enact law, either by proclamation or by unilaterally repealing selective parts of a statute. Obama’s presumptuous waivers are an unconstitutional perversion of the legislative process. Legislation is about compromise: There would not be law unless lawmakers agreed to swallow provisions they do not like in order to enact the terms they favor.
Courts upset this balance when they invalidate a part of a statute – often a part whose acceptance was necessary to attract support for passage of the whole. But we tolerate this because courts have a justification: A statutory provision may be stricken only if it violates the Constitution, and only because the court has no alternative but to rule on the provision in order to decide a pending case. And courts often take pains not to usurp the legislative function: If an infirm provision is key to a statute, they will simply strike the whole statute rather than rewrite it selectively.
In stark contrast, Obama is not vindicating the Constitution. He is selectively mining the law’s provisions, as well as picking winners and losers in its enforcement, based on political considerations. In our constitutional system, it is the assigned duty of Congress to make those choices; the president’s job is to enforce the law as written. If the law cannot be enforced as written, it should not be enforced at all.
In the case of Obamacare, there is a powerful additional reason to honor this principle: The claim by Obamacare proponents that the healthcare system needed comprehensive reform.
By and large, opponents of Obamacare did not (and do not) deny that our health care system needs reform. But opponents argued that, because a system involving a sixth of our massive economy is so complex, reforms should be undertaken gradually, in the prudent realization that there would be unintended consequences to address. Radical shocks to the system, we argued, ought to be avoided. But no: Obamacare advocates insisted, as they ramrodded through their unpopular 2700-page bill, that we needed comprehensive reform. The system, they told us, is intricately interdependent. It could not be addressed in pieces heedless of the other pieces. Now, however, they risibly contend that the president – not the lawmaking department of government but the executive – can haphazardly tweak parts without affecting other parts.
Worse, they claim he can do so in gross violation of our constitutional commitment to equal protection under the law for every American. A waiver here, but not there. Big corporations relieved of their mandate (because the administration and the Democrats cannot afford the political fallout of higher unemployment heading into the 2014 midterms), but individual Americans told to pay up, pronto. Members of Congress who foisted Obamacare on us protected from its onerous terms, but ordinary citizens who never wanted Obamacare ordered to comply. That is a travesty, and millions of Americans are boiling over it.
Even in a Congress solidly controlled by leftwing Democrats, Obamacare only passed by the skin of its teeth – and only thanks to the rankest kind of back-room deals and fraudulent budgeting. It would never have passed, not in a million years, if the public had been told that corporations would be favored over citizens, and Obama cronies over those without political connections.
What conservative proponents of defunding are seeking is not a repeal. Conservatives seek merely to do what Obama is already doing: defund the law … except conservatives would defund within constitutional norms. This would be a refusal to fund a law accomplished by the branch of government responsible for spending and lawmaking, not by an imperial president who has usurped lawmaking power and would coerce spending in accordance with his political whims, not equal protection of law for all Americans.
That is an argument conservatives can win, shutdown or no shutdown.
More: House GOP to Cruz: How Dare You Allow Reality to Intrude on Our Defunding Fantasy!