By Mike Dorf
According to a recent NY Times story, the incoming GOP majority in the House hopes to undermine the health care law by refusing to provide funding for key elements--such as IRS enforcement of the individual mandate. The plan raises a number of interesting issues.
It might be useful to distinguish between two different versions of this tactic. Under the "rider" approach, Congress passes a spending bill that has, as a rider, a prohibition on the use of funds for certain purposes, such as enforcement of the individual mandate. House Republicans would be hard-pressed to get such a rider enacted because it would also have to pass the Senate, where Democrats have a majority, and even then, President Obama could veto it. So, the rider approach could quickly lead to the sort of showdown/shutdown we saw in 1995. Then, President Clinton was able to get the public to see House Speaker Gingrich and the Republican leadership as holding the budget hostage to their agenda. Whether President Obama would have similar success in a confrontation with the new House GOP leadership remains to be seen.
Republicans are not restricted to attaching riders. Presumably some elements of the health care law require affirmative appropriations for them to function. As to these, the House could simply not act and not have to worry about getting the Senate or the President to go along. But in practice, this will cash out no differently from the rider approach. Congress needs to pass appropriations measures to fund the govt's operations. Senate Dems and the President are unlikely to go along with any appropriations measure that either forbids spending on the health care law or omits funding for crucial elements of the health care law, so under either approach we have an impasse to be broken only through negotiations in the shadow of politics.
In some ways, the debate we are likely to see in the next few months will parallel the discussion in the later Bush years over de-funding the Iraq war. The main differences are: a) Then it was Congressional Dems who wanted to use the power of the purse to change the direction of federal policy under a Republiccan President whereas now the parties are reversed: and b) The Republicans in Congress now are not as susceptible as the Democrats in Congress were in the late Bush years to a charge of lack of patriotism. Republicans then could accuse Dems of refusing to fund the troops. Dems now will need to find a way of making a similar charge against Republicans. Look for one party or the other to try to tie military spending to civilian spending so that the other party can then be blamed for not funding the troops.