The problem with writing a blog is you need to get it out fast, before events make your insights (if any) obsolete.  Since I spent time on the following, I’ll share it, even if it is partially beside the point now.  

We are now in our second week of government shutdown.  Blame for the crisis is being liberally flung about.

To date, President Obama has no structural ownership of the shutdown.  No legislation authorizing spending has reached his desk.  Unlike then-President Clinton in the 1990s, who twice shut down the government by vetoing spending bills, to date this funding crisis is being fought entirely on Capitol Hill. Obama’s involvement has been rhetorical.

Government shutdowns are nothing new.  This is the 17th time in the last half-century the government has shut down.  Most prior shutdowns were orchestrated by Congressional Democrats, and were deployed against both Democratic and Republican Presidents. Every President since 1976, except George W, has dealt with one or more shutdowns.

President Obama has argued that the current shutdown is in some sense not legitimate. This is nonsense.  In fact, Obama himself voted (unsuccessfully) to shut down the government while a Senator.

Obama has exercised his own brand of shutdowns often over the years, for example, deciding by fiat which aspects of the health care law will be implemented on what dates. It is peculiar to think the President may arbitrarily decide which parts of which laws he will choose to obey, and which to alter at his pleasure, but the arm of government empowered by the Constitution to decide what kind and size of government to fund, is acting without legitimacy when it does just that.

The roots of this crisis lie in the decision made by President Obama, Speaker of the House Nancy Pelosi, and Senate Majority Leader Harry Reid back in 2010 — to pass and sign into law a transformative piece of legislation by a narrow, one-party vote, and even more, using questionable legislative mechanisms.  This made the Affordable Care Act fundamentally different from similarly transformative legislation of the past — Social Security, Medicare, the Civil Rights Act, Medicare Part D.  All had broad, bipartisan support, and therefore, none ever faced any danger of repeal.

No Congress may ever constrain the Constitutional authority of a future Congress.  (This is why most “spending cuts” are so meaningless. They rely on cuts in the “out years,” duing the tenure of future Congresses, who have no obligation whatsoever to honor them.)

Today’s crisis was baked in the cake from the day The Affordable Care Act was signed into law, unless one of two things happened — either the Democrats would hold the House for several more legislative cycles, or the Act would work so well that it would immediately become politically untouchable, like Social Security and Medicare.

Neither necessary condition followed the passage of the ACA. The Democrats enjoyed all of two years in control of the House. Multiple core promises of Obamacare have already been violated (if you like your insurance, you can keep it; the employer mandate will have no effect on employment; premiums will fall in the insurance exchanges). As a result, the expectation of massive public approval has not come to pass. In fact, most Americans oppose Obamacare, and by the largest margins since passage.

There is nothing illegitimate, unreasonable, or unprecedented about Congress failing to fund any program. The argument for funding — always — must lie in the value and the popularity of the program itself. In fact, there is abundant precedent for Congress un-making prior Presidential policy simply by changing funding levels. A case in point was the Vietnam War in 1974. A new, overwhelmingly-Democratic Congress entered office, led by a group of liberal “Watergate babies,” who were determined to end the Vietnam War. Which they did, by the simple mechanism of de-funding it. From 1973 to 1974, U. S. military aid to the Army of the Republic of Vietnam fell by almost half, and was scheduled to be zeroed out by 1976. It never got that far. Short of bullets, helicopters grounded by lack of fuel, the ARVN collapsed, and Saigon fell less than eight months later.

Was this good or bad policy? Wise or unwise? That is not my point. It was then, just as it is now, clearly within Congress’ explicit power to set funding levels, even at zero. Just as today, Congress can legitimately de-fund Obamacare at any point.

The resolution of the current standoff will be driven by public opinion. Obama is counting on a public backlash against Republicans to win back the House, and keep the Senate, in 2014’s midterm elections. Republicans in the House, responding to the anti-Obamacare voters who handed them the House in 2010, are determined to forestall implementation of Obamacare.

Given the partisan nature of its passage, Obamacare has always been a poisoned chalice. The simple solution to the government shutdown would be to repeal this complex, flawed piece of legislation, and start over.  Let it go.

Until that happens, and don’t hold your breath, we should stop blaming solely the House Republicans, who are after all simply exercising the power the Constitution grants them, for shutting down the government.

2 thoughts on “Shutdown

  1. Hey Jim. Interesting perspective (I bet you can guess that you and I see differently on much of this). I would like to respond to your statement that most Americans oppose ObamaCare and overwhelmingly. In all polls that have asked the question two ways, a much higher percentage of those polled are against ObamaCare than are against the Affordable Care Act. In other words, how we phrase things makes a difference – not to mention that many people are really uninformed. But I appreciate that you are informed and keep me thinking about this stuff from a different perspective. Charlie.

    A Charles Hoffmeister MD


    • A good point. I think it would have been more accurate for me to say that a plurality of Americans oppose Obamacare, and that the margin opposed has increased since passage. Over the last two weeks, I’ve had several reliably liberal friends and clients, without prompting, comment to the effect that, “It (Obamacare) is a mess. They should get rid of it, and start over.” These are folks whose inclinations are liberal, but who don’t closely follow the pundits, so they are unaware of either sides talking points.

      My central point on this issue is how very unwise it was to ram this through on a party-line vote back in 2010. If we think about prior major changes in policy (Social Security, Medicare), the record shows that they were Democratic initiatives that attracted substantial Republican support. Both parties “owned” them from day one.

      In terms of the policy aspect, I’m unconvinced by the ACA as passed, even if central portions were a product of the conservative American Enterprise Institute. (A Rube Goldberg device constructed by conservatives is no more likely to function as designed that one put together by liberals.) At the same time, I recognize how incredibly burdensome our current third-party payer system is for physicians. I’ve heard again and again from docs, “I want to practice medicine, not do data entry.”

      There is an interesting conservative argument for single payer, but that opens a whole other can of worms.



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