Health Care Summit Conflicts with Constitution

by Joel B. Pollak

Republicans ought politely to decline President Barack Obama’s invitation to a summit on health care reform. It’s not just a potential “trap,” as House Minority Leader John Boehner suspects, aimed at fast-forwarding a modified health care reform bill through Congress under a smokescreen of superficial “bipartisanship.” It’s also a violation of the spirit of our Constitution’s separation of powers.

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The President has no legislative authority. He can propose laws—indeed, we expect him to do so—that are then introduced by legislators in Congress. He can sign a bill or veto it once it has been passed by both the House of Representatives and the Senate. He can mediate disputes among legislators to broker agreements. But the President cannot intervene directly in the legislative process until it is over.

The discussion that President Obama has proposed with Republicans for February 25th was, no doubt, inspired by his success at a question-and-answer session with the GOP last month. However, the new event is beginning to assume the trappings of a formal legislative session. Republicans will be asked to propose changes to the Senate version of the health care bill, and the President will offer compromises.

Congressional Democrats may be given equal time to present their own proposals, and the President will decide how to balance their demands with Republican requests. Presumably, the President will then incorporate the changes into a bill that will be presented to Congress for immediate approval. The President has made it clear that he wants to bypass any further negotiations in the House or Senate.

This summit is fundamentally different from previous meetings, such as the White House Forum on Health Reform last March. It is not aimed at jump-starting the legislative process, but at passing an existing bill–one that is awaiting final drafting in conference committee. The President’s explicit goal at the summit is to find a way to pass the legislation without, as he put it, “wrangling” and “posturing.”

In effect, President Obama’s summit will create a surrogate legislative process, without the procedural safeguards provided by the Constitution and the rules of each house. There will be no conference committee to iron out the difficult details of the bill. More importantly, there will be no filibuster to protect the objections of the minority. The President, not newly elected Senator Scott Brown, will cast the proverbial 41st vote to end debate.

The summit is a clever political ploy. By aiming his invitation at Republicans, the President hopes to deflect blame for the failure of health care reform, when it is his own party that has been unable to agree on a bill. And by convening a bipartisan summit outside the Senate, the President will evade the filibuster without having to propose radical rule changes or invoke the controversial “reconciliation” process.

Politically, Republicans have responded adeptly, indicating that they are open to talks while insisting that the existing health care bill must be scrapped. Karl Rove has suggested that Republicans might benefit from the spectacle even more than President Obama will: “This is the party’s best opportunity yet to contrast its good ideas with Democratic legislation,” he wrote in the Wall Street Journal of Feb. 11.

Yet Americans cannot ignore the looming constitutional danger. The summit aims to re-constitute Congress inside the White House. It casts the President as both legislator and executor of the law—a Prime Minister and President rolled into one. That is a threat to the separation of powers, as the founding fathers understood it, and will set a precedent that will erode the independence of Congress.

If the President were truly interested in bipartisanship, the summit would not be necessary. The structure of our legislative system provides many opportunities for the parties to work together. Republican legislative proposals on health care reform have already been introduced in Congress. The end of the Democrats’ supermajority should be a new opportunity for cooperation—within Congress, not outside of it.

That is not what the President wants. In his State of the Union address, President Obama attacked the independence of the other two branches of government. He announced he would circumvent the Senate after it rejected his budget panel, and he rebuked the Supreme Court. The summit must be understood in the context of that assault on the separation of powers. Much more than the health care bill is at stake.


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Posted Feb 16th 2010 at 1:46 pm in Congress, Healthcare, Justice/Legal, News, Obama, Politics | 985 Comments