Constitutional Procedures: Obamacare and More
By Randall Holcombe • Friday April 6, 2012 8:40 AM PDT • 5 Comments
As the Supreme Court evaluates the constitutionality of Obamacare, lots of opinions on both sides of the issue have been offered, including several here at The Beacon and President Obama’s comment that it would be unprecedented for the Court to strike it down. While there is much disagreement about the constitutionality of the law, everyone agrees on the procedure by which its constitutionality will be judged. Both supporters and critics agree that if the Court rules in favor of the law, it stays; if the Court rules against, it goes.
Much of the disagreement over the interpretation of the Constitution deals with constitutional limits on government powers, but there is widespread agreement on constitutional procedures. The Supreme Court case on Obamacare is a good example. The case is over a disagreement on constitutional powers, but those on both sides who disagree accept the procedure by which the case will be settled.
The dispute over how to count votes in the presidential election of 2000 is another example of agreement on procedure. The Supreme Court made a ruling in that case and everyone accepted President Bush as the president, because of the constitutional procedure by which he was declared the winner.
Congress approves taxes and expenditures. The president can veto laws Congress approves. Congress can override vetoes. Constitutional procedures are agreed upon, supported, and executed. As we debate whether our government acts constitutionally, it is worth noting that the debate mostly is over the limits of government power, not procedure.
Think back to 1974, when President Nixon resigned in the face of almost certain impeachment. Constitutional procedures worked to threaten Nixon’s hold on the office of the presidency, and once he stepped down, to produce an orderly succession of power through generally accepted constitutional procedures.
There are some procedural issues that have surfaced. The Constitution gives Congress the power to declare war, a power that appears to have migrated to the president. Also, the Constitution gives all legislative powers to Congress, but increasingly this constitutional power of Congress appears to have been delegated to legislative rule-making.
Still, for the most part, constitutional procedures are agreed upon, accepted, and followed. Nobody thinks that if the Supreme Court strikes down Obamacare, the president will move to implement it anyway. Nobody thinks that if President Obama loses the election in November, he will try to remain in office. And nobody thinks that if President Obama wins in November he will try to remain in office after his second term.
Constitutional procedures are generally agreed-upon and generally followed, even as we debate the constitutional limits on government power.
Tags: American History, Constitution, Law, Politics, Presidential Power, The State 
The Founding Fathers constructed our government as checking and balancing powers to ameliorate the various weaknesses of human individuals through the instument of the constitution. They themselves observed that absent a capacity for citizens’ self regulation and “virtue” which put public good ahead of prive enrichment no government was sufficient. The Courts resolved the 2000 election, in part; in part, Al Gore exercised a restrain similar to the one Richard Millhouse Nixon exhibited in 1960. The review of Obamacare and how we the people and we the represented people respond will do much to shape future of the polity as will any concord on constitutional procedures. We are responsible for our future.
Michael Dixon | Apr 6, 2012 | Reply
“. Nobody thinks that if President Obama loses the election in November, he will try to remain in office. And nobody thinks that if President Obama wins in November he will try to remain in office after his second term.”
Think again. I’m not necessarily one of them but there are a lot of people who do think that.
Sharon | Apr 6, 2012 | Reply
One major fundraiser for Obama’s party tells me he wants to leave a legacy longer than his POTUShood – think SCOTUS.
How about “Justice Obama”?! Happened with William H. Taft.
Jonathan Bean | Apr 6, 2012 | Reply
Good grief, Jonathan Bean. That is a terrible thought. He has ignored the constitution throughout his presidency and now thinks he should become one of the ones who uphold it. Did he ever practice law? Are not the majority of the justices career justices? How would he possibly qualify–other than his own ego?
Sharon | Apr 6, 2012 | Reply
Considering the complete adoration Obama has for himself, all of the above comments are more likely than not to come into play in the future... He and his “subjects” will stop at nothing to keep their “Anointed One” in control...
Sandra Akers | Apr 7, 2012 | Reply