Constitutional Procedures: Obamacare and MoreRandall Holcombe • Friday April 6, 2012 8:40 AM PDT •
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.