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Who’s really to blame for the federal government’s shutdown? According to President Obama, it’s those ideologically obstinate congressional Republicans who will do anything to undermine the Affordable Care Act, the signature achievement of his presidency. For those same Republicans, it’s the president who deserves blame by refusing to compromise one iota on a policy measure that even the administration admits is less than ready for prime time.
One is inclined to say we’re in a classic D.C. he-said-she-said moment—except in this case polls show the American public siding with the president in blaming Republicans. Like most serious policy disputes in American history, however, this argument has a constitutional dimension that shouldn’t go without comment.
The president has argued that the Affordable Care Act was duly enacted—passed by the legislature and signed into law by him—and confirmed in its constitutionality by a decision of the Supreme Court. As such, it’s a law of the land and should be carried out.
What’s missing is that the law was passed by a House and Senate both controlled by one party, the party of the chief executive. In the normal course of things, this would be of no consequence and is unobjectionable constitutionally.
But poll after poll indicates that considerably more Americans find the law itself objectionable than approve of it. Indeed, the public’s reaction to the passage of the law was a key reason for the stunning electoral victory by House Republicans in 2010—and a good reminder of one reason the Constitution provides for staggered elections.
Certainly, a measure with such profound implications for the country should have more support than a bare majority made up exclusively of one party. House Republicans have every right to try and press the case that a law of this magnitude should have a broader base of support than the Affordable Care Act has at the moment.
This is particularly true given how uncertain the meaning is of various parts of the law and whether the administrative elements necessary to carry it out are actually in place. Under the Constitution, it’s the president’s obligation to “take care that the laws be faithfully executed,” meaning, among other things, that it’s his task to soundly administer the laws. If that’s not possible—and clearly in this case it isn’t—then the House’s proposal to postpone the law’s enforcement for a year should have been acceptable to a president who takes his constitutional duties as the nation’s chief executive seriously.
And while House Republicans might carry the majority of the blame for the government shutting down, it’s also obvious that the president is ignoring his own responsibility for preventing it from happening.
Section 3 of Article II lists a series of duties of the president, in addition to faithfully executing the laws. He’s to provide an account of the state of the country, recommend measures to fix existing problems, appoint officials, receive foreign officials, and call Congress back into session when necessary.
Now, on its face, this appears to be a kind of laundry list of responsibilities—some significant, some less so—with no particular overarching logic. If one steps back, however, and looks at Section 3 as a whole, the underlying point of the list becomes clear.
Together, these particulars are meant to ensure that the president keeps the government going. He kick-starts the —policy process, makes sure there are officials in place to carry out the policies, executes the laws on the books, and handles the country’s day-to-day foreign affairs. In a system of separated powers, as the Framers themselves noted, it was the independent, unitary executive that was to give “energy” to the government.
In short, there is a reason the president was the only constitutional official the founding generation decided should have his own house. It’s only the executive that operates 24/7 and is never “in recess.”
Shutting down the government should be anathema to any president who takes his oath of office seriously. It also shows why simply blaming Republicans for the current predicament is constitutionally shortsighted.
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