by:  Mark Tapscott    

                                                                                                                            August 30, 2013  

It's not often that I've had the opportunity or inclination to take up my pen in recent months, owing to the Washington Examiner's transformation earlier this year from daily print newspaper to online media.  I do so now only out of concern about a persistent myth that is heard daily in the Obamacare debate.

That myth is that Congress cannot repeal or otherwise change "mandatory spending," and therefore Obamacare cannot be defunded via a continuing resolution, as proposed by Sens. Ted Cruz of Texas, Mike Lee of Utah and Rand Paul of Kentucky. People on all sides of the "defund, delay or repeal Obamacare" issue have solid arguments, and this column isn't about whether one or the other side ought to prevail in that discussion.

What this column most certainly is about, however, is that the Congress can repeal, increase, reduce or otherwise modify any "mandatory spending" measure at any time.  In fact, James Madison, the "father of the Constitution," made it clear in Federalist #58 that the Founders specifically gave the House of Representatives the power of the purse with the expectation that it would on occasion use that power to stop unwise acts by the Senate or either of the other two branches.

I was reminded of this today by J. Christian Adams, who briefly alludes to Madison in a Washington Times column.  Madison's observations about the House of Representatives make it absolutely clear that there is no such thing as "mandatory spending" that cannot be changed as Congress, and in particular at the insistence of the lower chamber.

First, Madison points to the superiority of the House over the Senate with regard to funding issues, noting that "notwithstanding the equal authority which will subsist between the two houses on all legislative subjects except the originating of money bills" and praising the "continual triumph of the British House of Commons over the other branches of the government whenever the engine of a money bill has been employed."

In other words, the prospect of the House standing firm and refusing to fund something favored by the Senate and the president was understood by the Founders to be a very real possibility because they had seen just such a conflict stretching over many decades in Parliament.

But Madison didn't just acknowledge the similarity of fiscal power between the House of Representatives and the House of Commons, he praised the singular exercise of the power of the purse as "the most complete and effectual weapon" available under the Constitution to any of the three branches of the federal government.

Madison's point here bears serious, deliberative study by anybody who has an interest in the Obamacare debate:

"The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government.  They, in a word, hold the power of the purse — that powerful instrument by which we behold, in the history of the British Constitition, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seemed to wish, all of the overgrown perogatives of the other branches of the government.

"This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and saluatory measure."

From his glowing description of how the House of Commons expanded its power as a result of its exercise of the power of the purse, Madison clearly anticipated that the House of Representatives would use its power of the purse to similar effect.  And not merely on occasion but regularly and over a long period of time.

So were Madison here to advise us, he would say that not only can Congress do whatever it chooses to do with funding for any federal activity, Obamacare not excepted, the House of Representatives can, if it chooses to stand firm, properly refuse to fund any federal activity because that is exactly what the Founders expected the House of Representatives to do.

And one more observation:  It is well to remember that the U.S. Constitution established a legislative supremacy federal government.  The three branches are co-equal only as long as Congress chooses to allow them to be.  And it is to the House of Representatives that the Constitution gives "the most complete and effectual weapon" in any contest with any other part of the government.

Some folks don't like it that way, but that's the way it is.

Mark Tapscott is executive editor of The Washington Examiner.

Reprinted with permission of the Washington Examiner.