The extremely controversial case last year at the Supreme Court where the Court determined that the individual mandate of Obamacare was a constitutional exercise of Congress’ tax power. That case was a good example of a case involving the scope of Federal power. However, there are other issues involving Obamacare that have to do with the process of government; that is, there are not only Constitutional issues with what was done (did it exceed Congress’ authority or not), but how it was done. These issues rarely get the same amount of attention from political commentators, because they seem arcane. Also, many at least implicitly adhere to the notion that winners make the rules, and particularly that the majority should have its way.
But our Constitution most importantly provides a system of rules for how government should be constrained to operate, and it is explicitly called the supreme law of the land. Also, it is a core belief that ours is a government of laws, and not of men (John Marshall emphasized this repeatedly). So the procedural rules outlined in the Constitution are fundamentally important, even though many dismiss them as “guidelines” at best, or obsolete at worst. And they are often manipulated or avoided when inconvenient, which is something we should always be vigilant against.
In the case of Obamacare, there are at least two glaring procedural violations that were committed by the Democratic majorities in a rush to “get the thing done”. First, realizing that the election of Scott Brown to the Senate on the death of Ted Kennedy would cost the President his filibuster-proof Senate majority, Harry Byrd knew he had to work fast to complete the adoption of ACA before Brown could take his place in the Senate. But there was a problem. The bill that embodied what ultimately became the ACA had originated in the Senate, but the Origination Clause of the Constitution requires that any bill that raises revenues must originate in the House. Knowing they could not obtain the needed bill from the House in time, Byrd took another unrelated House bill (which therefore had the magic “H.R.” as part of its number), and then stripped everything out of it and replaced it with the ACA. This maneuver allowed them to claim that the final ACA bill had originated in the House as constitutionally required, but in fact no such thing had occurred. The point of the Origination Clause is that the one house that is closest to the people, and most accountable to the people, was the only one that could originate taxing and spending bills. Fraudulently labeling a bill to meet the requirement avoids the constitutional intent of ensuring that the power of the purse was kept close to the people. This issue is now working its way through the courts; for conservatives, though, it is important to recognize how seemingly arcane rules can be abused to circumvent inconvenient truths.
A related fraud pertains to the Federal subsidies for exchange premiums for families in certain income ranges. Many Democratic legislators were concerned that ACA would lead to an undesirable of Federal power versus the states, and would weaken the federalism principle. To avoid this, they only agreed to support the subsidies for premiums paid to state-run exchanges, and not to the Federally-run exchange. This limitation to state exchanges is explicitly written in the law, and is the result of a political bargain struck within the majority party. However, about three dozen states have opted not to establish state exchanges, as allowed by ACA. This raised a difficult implementation problem: if two thirds of the states opted out, their citizens would not get the subsidies being paid to citizens of the other third of the states. To avoid this politically undesirable outcome, HHS unilaterally decided that the federal exchange was in fact a federally-run state exchange (even though no state has any control of it), and therefore the citizens of the two thirds of opt-out states would still be eligible for subsidies. This is plainly a violation of the statute, and particularly of an element of the statute that was put there expressly to avoid precisely what is in fact occurring—a massive shift of power and spending from the states and the private sector to the federal government.
These two examples show how, in the rush to take advantage of an ultimately fleeting supermajority to achieve an unpopular progressive dream (universal federal health insurance), procedural safeguards of our constitutional order have been cynically trampled. The rule of law fails when a majority can ignore of manipulate procedural rules to achieve any desired outcome, for it is the rules of law that guard against precisely such abuses. There is no doubt many of the rules seem arcane or even quaint, but most of them have underlying rationales that are driven by the assurance of liberty for all, especially liberty against the wishes of a dominant majority. We cannot afford to let this happen, even when a party more to our liking is in power (and especially when “the other guys” are. The federal government is very powerful, so it is crucial to ensure that they play by the rules!