WSJ to Congress: Cede the Power of the Purse

Rule of Law by from The Weekly Standard, December 5, 2014

The claim that Congress should never force a battle over funding the government, that it must always give the president the funding he insists upon—even for unconstitutional purposes—amounts to a claim that Congress should hand off the power of the purse.

In Thursday’s lead editorial, the Wall Street Journal argues that congressional “Republicans can’t win by shutting down the government”; thus, they should not attempt to deny President Obama the funding he needs to carry out his unconstitutional executive amnesty for 5 million illegal immigrants.  Instead, Republicans’ “goal should be…to form coalitions with as many Democrats as possible to put pro-growth reforms on Mr. Obama’s desk,” while accepting that “they aren’t likely to overturn his immigration decree unless they take the White House.”

This is not how our constitutional structure is supposed to work.

Congress isn’t bound to give the president whatever funds he needs for undertaking whatever extralegal actions he desires. Rather, Congress is duty-bound to use its powers to uphold the Constitution. In fact, to govern is to defend the Constitution — and a party that wants to show it can govern cannot afford to skip over the most crucial aspect of governing.

The Journal unfavorably quotes Senator Jeff Sessions, who has been a genuine statesman on these matters, for saying, “Congress must respond to the President’s unlawful action by funding the government but not funding illegal amnesty.”  The Journal replies, “But Senate Democrats will kill any bill that defunds Mr. Obama’s order.  What happens then? … That’s the question we never seem to get an answer to.”

Fair enough.  But another question we never seem to get an answer to is what happens if Congress always buckles to the president’s will when the two reach an impasse on questions of funding.  The Constitution explicitly grants Congress power over spending.  But if every time a president really wants funding for something — say, for his lawless executive amnesty — Congress obliges and gives him that funding, who is really exercising the spending power?  By saying that Congress should flinch from any such showdowns, the Journal is effectively saying that the legislature should cede to the executive the power of the purse.

James Madison had a very different take on this matter.  In Federalist 58, he called the power of the purse “a constitutional and infallible resource” for Congress, and specifically for members of the House of Representatives, to use “to accomplish their just purposes.”

Madison wrote, “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government.  They, in a word, hold the purse — that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government.”

In other words, by using the power of the purse, the people’s representatives can successfully rein in abuses and reestablish the rightful balance of power.  They can check the misadventures of overreaching actors, whether they be kings, presidents, or presidents who act like kings.

Madison added, “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 salutary measure.”

None of this is to say that strategy and timing don’t matter.  If Republicans want to have this fight in January, when they have reinforcements in the Senate, that is understandable and perhaps even wise.  But the fight must be had, and Republicans must believe they can win.

The Journal believes otherwise:  “As far as we can tell, Mr. Sessions believes that if Republicans hold firm during a shutdown, the public will eventually side with the GOP, Senate Democrats will roll over, and the President will surrender. Does this sound remotely plausible?”

In a word, yes.

Republican consultants and pollsters love to point to the last government shutdown, when the reported position of Republicans (even when it was no longer true) was that they wanted to defund Obamacare — a strategy that, according to polling, fewer than a third of all Americans supported.  Polling suggested that, while Americans hated Obamacare (as they still do), they thought that defunding it was not playing by the rules; that it wasn’t proper; that (as one poll found) “[u]sing the budget process to stop a law is just not the way our government should work.”

It is quite another thing, therefore, to use the budgetary process to stop a president who is brazenly violating the law.  Americans believe in the separation of powers.  (Progressives have never succeeded in changing the citizenry’s mind on this point.)  Americans believe in the Constitution.  They believe in the rule of law.  And in this case, they not only oppose Obama’s lawless means but also his policy ends.  In the most recent election, ad spending suggested that immigration was the #3 pro-Republican issue (behind only Obamacare and federal spending).  All in all, this is a far cry from last year’s defund fight, and there is no reason to believe that Republicans couldn’t prevail.

But the larger point is that, if Congress is never willing to risk a government shutdown, then it effectively cedes the power of the purse to the president.  Again, in Federalist 58, Madison predicts that the power of the purse will prove potent because the House of Representatives will be the last body to flinch.  He asks, “[I]f such a trial of firmness between…branches were hazarded, would not the one be as likely to yield as the other?”  He answers no, pointing to “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.”  He expected the same triumphs from our House of Representatives.

The Journal writes that “Obama must be smiling” because he has “induced Republicans to ignore him and start fighting each other.”  In truth, it is the Journal that is advising Republicans to ignore Obama and his lawlessness, claiming that to do otherwise is “to overreact.”  But the first obligation of a governing party is to defend the Constitution.  Indeed, the first line of every congressional member’s oath of office is, “I, [state name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States….”

Thankfully, that glorious document equips members with the tools they need to do so.

Anderson is executive director of the 2017 Project, which is working to advance a conservative reform agenda.

© 2014 Weekly Standard LLC. Reprinted with permission.