Friday, October 04, 2013

Is It Legitimate to Defund Obamacare? The Fourth Congress Says Yes

In all the hullaballoo over the debt ceiling and Obamacare negotiations (or non-negotiations) the Democrats have been complaining, among other things, that the Republican attempt to defund Obamacare is illegitimate. Obamacare, the Dems complain, is legislation that was duly enacted by Congress, signed by the president, and is now "the law of the land." The Republican House cannot in effect now sabotage duly enacted legislation through the back door by refusing to fund it.

As a buff of early US legal history, it immediately occurred to me that there was early - very early - historical precedent.  And that precedent, in the form of resolutions passed by the Fourth Congress in 1795, strongly suggests that Republicans are entirely within their rights to refuse to provide funding for Obamacare.

The fracas I have in mind arose out the Jay Treaty – a treaty with Great Britain negotiated by John Jay. President George Washington, who had sent Jay to England for that purpose, submitted the treaty to the Senate for its consent in June 1795. The merits of the proposed treaty were hotly contested. In a nutshell, President Washington and the Federalists urged approval as the best that could be achieved. The Democratic-Republicans grouped around Thomas Jefferson and James Madison viewed it as an abomination, both constitutionally unsound and humiliating.

To make a long story short, even some Federalists balked at one article containing onerous trade restrictions, but the Senate conditionally approved the treaty.  After Britain agreed to suspend the offending article, the president signed the treaty.

Then the action moved to the House of Representatives. When the president sought funds to cover expenses associated with the treaty (e.g., funds to cover the expenses of a commission established by the treaty), Rep. Edward Livingston (DR - NY) (pictured at the top of this post) offered a resolution requesting the President to provide the House with Jay’s instructions and other materials relevant to the treaty. “The debate on this resolution lasted an entire month and was one of the most impressive and fundamental ever conducted in Congress.” (All quotes are from David P. Currie’s wonderful The Constitution in Congress: The Federalist Period 1789-1801.)

Federalists argued that the House had no right to look into such matters because only the Senate and the president were constitutionally competent to approve and ratify treaties:
The House had no right to seek information, said Representative [William Vans] Murray (F - MD), without indicating how it related to some subject within the House’s purview. The House had nothing to do with treaties, since Article II, sec. 2 expressly empowered the President to make them with Senate consent. Impeachment, he acknowledged, would be a legitimate purpose, but as [Robert Goodloe] Harper [(F - SC)] noted no one had suggested that Jay or anyone else should be impeached.

Rep. Albert Gallatin of Pennsylvania (later President Jefferson’s and President Madison's Secretary of the Treasury) disputed the point, arguing (among other things) that the House “had a right to information because even if the treaty was valid it could not be carried out without appropriations, which under Article I, sec. 9 only a statue could provide.”

In reply, the Federalists made an argument akin to that made by Democrats now: in the face of a ratified treaty, the House had no discretion to refuse funding:
Not so, said the treaty’s supporters; Article VI made a treaty duly concluded the law of the land, as binding on the House as on anyone else. The House could no more refuse to implement a treaty than a tax collector could refuse to enforce the law; it might as plausibly withhold the salaries of the President and the judges or decline to call a constitutional convention at the request of two thirds of the states. Congressional discretion to refuse an appropriation, in short, would undermine the treaty power. 

The Democratic-Republicans submitted these contentions to withering abuse:
Wrong, said Pennsylvania’s John Swanwick; discretion was implied in every grant of legislative authority. To hold that the House was bound to vote funds to implement a treaty would destroy the appropriation power – which, [William Branch] Giles [(DR - VA)] added, was intended as a check on the powers given to other branches. The two-year limit on military appropriations, [James] Madison [(DR - VA)] noted in support of this conclusion, was designed to permit the people’s representatives to review on regular occasions the desirability of maintaining an army. The clauses expressly requiring payment of the salaries of the President and the judges [Art. II, sec. 1; Art. III, sec. 1], Gallatin explained, were narrow exceptions to the general principle. There was no comparable provision with respect to treaties; the supremacy clause served only to establish the subordinate status of state law and (in Swanwick’s words) “does not affect the power of this House, as a component part of the General Legislature, and authority of the United States.” Finally, Gallatin invoked British precedent: Though Blackstone described treaties as law, it was universally acknowledged that Parliament had discretion not to appropriate money to implement them. 

The lengthy and impressive debate ended in a dramatic victory for the Democratic-Republicans. “At length the House approved Livingston’s resolution by a lopsided vote of sixty-two to thirty-seven, suggesting that a substantial majority agreed that the House had discretion in implementing the treaty.” And when President Washington refused to turn over the requested information, the House adopted “by a similarly decisive vote,” another, similar resolution “affirming its discretion to refuse to implement and treaty affecting a subject within congressional power and its right to request information without giving reasons.”

The battle having been won, the war evaporated. The treaty, it turned out, was far more popular with constituents than the Democratic-Republicans had realized. Flooded with petitions urging Congress to appropriate the necessary funds, “a number of House opponents gave up the fight; having asserted its right not to appropriate money, the House voted to do so after all.”

Additionally, it is worth noting that Prof. Currie, reviewing the dispute, had no doubt but that the Democratic-Republican proponents of Congressional discretion were correct.  While I will not (out of respect for copyright laws and the reader’s patience) recite his reasoning at length, Prof. Currie concluded that “the appropriation power was intended as a check on other branches.” “Congress normally has discretion whether or not to appropriate funds.”  (Emphasis in original.)

Finally it is important to understand that the case for House discretion in funding legislation (Obamacare) is stronger than the case for such discretion in funding treaties such as the Jay Treaty. The Constitution provides that treaties are to be ratified by action of the Senate and the Executive; the House has no part to play. Legislation, of course, involves an interplay among both houses of Congress as well as the Executive. If the House has discretion to refuse to fund the implementation of treaties, with which it is otherwise unconcerned, then a fortiori it has the right and power to refuse to fund ordinary legislation, which forms its core function.


For a somewhat different approach to the Democratic argument that Obamacare is the "settled" "law of the land," see this interesting article by one of my favorite lawprof bloggers, Gerard Magliocca: Why Obamacare isn't "settled".

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