How an Arcane Spending Fight Could Alter the Federal Balance of Power
By Carl Hulse
New York Times
July 11, 2016
WASHINGTON — The fight between House Republicans and the Obama administration over billions of dollars in disputed health care spending sounds arcane, but it could have major — some might say huge — consequences for our constitutional democracy.
Consider it in this context: How would lawmakers react if a willful new chief executive, unable to win money from Congress for a wall on the Mexican border, simply shifted $7 billion from another account and built it anyway?
How about if a future president were so determined to cut college costs that she bypassed Congress and funneled billions of dollars into a new tuition grant program without approval? Or what if a new president, claiming vast expertise on foreign policy, totally reordered Congress’s carefully drawn Pentagon spending plan?
It’s safe to say members of both parties would accuse her — or him, as the case may be — of blatantly shredding the Constitution.
That is what this latest health care fight is really about. The Republican assertion that the administration is spending on health insurance subsidieswithout required congressional authority hasn’t gotten much news coverage. Many people dismiss it as yet another time-wasting attempt by Republicans to undermine the president’s signature domestic policy achievement.
But the central issue goes beyond health care to the fundamental division of federal power, particularly in a time of deep fissures between the legislative and executive branches.
Congress is supposed to approve every penny of federal spending. But the institution is in such partisan disarray that the appropriations process barely functions, giving rise to the temptation for presidents to assert greater power over the purse, marginalizing Congress.
Last week, as two major House committees scrutinized the administration’s $7 billion in spending to reduce costs for eligible consumers, Republicans tried to make the same point to their Democratic colleagues.
Democrats might be O.K. with this particular suspect spending because it goes for health coverage for those who need it under a program they enthusiastically support. But Republicans warned that allowing the Obama administration to spend huge sums that were never appropriated could encourage a President Donald J. Trump, President Hillary Clinton or some other future chief executive to unilaterally spend billions on something Democrats don’t like.
“There is this feeling, and I think it’s in full bloom and full display today, and the feeling is this: that it’s O.K. to cut down laws, it’s O.K. to cut through things, in cloaking ourselves in good intentions,” said Representative Peter Roskam, the Illinois Republican who chairs the Ways and Means oversight subcommittee.
“It’s a dangerous game because if we accept this, then, mark my words, there will come a day when there’s going to be a different administration or a different disposition or a different attitude, and we’re going to say, ‘Where were the people who should have stood up for these things at the time?’” he said.
Democrats weren’t buying it.
“There is real work to be done. There are real issues that need to be addressed,” said Representative John Lewis of Georgia, the senior Democrat on the panel. “We should not waste the time and energy debating how to tear apart the good part of health care reform. We should not be trying roll back what helps people make ends meet.”
This spending conflict is the type of legislative fight that in the past might have been worked out with a subsequent fix to clarify that an appropriation exists for the subsidies paid to insurance companies or another solution. But with the parties so deeply divided over the health care law, no such resolution is possible.
The final word may come in federal court, where a district judge has already found the spending to be unconstitutional. The administration is appealing that decision.
While Republicans have been scoring some points against the executive branch, it has hardly been a knockout for them. Some conservatives complain that if House Republicans are so certain the administration is acting illegally, they should take action to punish the White House. Those critics see it as yet another failure of Republicans to hold President Obamaaccountable.
Democrats say it is strictly a political fight, another chapter in the Republican playbook aimed at undermining the health care law. Yet Obama administration officials last week were unable to cite legal authority for the spending during a House hearing and could not identify any specific appropriations.
When asked if she could point to a law explicitly providing money for the subsidies paid to insurers, Mary K. Wakefield, the acting deputy secretary of health and human services, said, “I cannot.”
Mark J. Mazur, the Treasury Department’s assistant secretary for tax policy, told lawmakers that Congress could always take another route if it was truly unhappy with the health care spending.
“If Congress doesn’t want the money appropriated, they could pass a law that specifically says don’t appropriate the money from that account,” he said.
Given the state of Congress these days, it has little hope of passing that bill, either.
But suggesting that the administration is free to spend as long it is not specifically prohibited from doing so seems like a new twist on this old line from the Constitution: “No money shall be drawn from the Treasury but in consequence of appropriations made by law.”