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06.10.11

Karl Rove's Misguided Constitutional Attack on Obama

Karl Rove is accusing President Obama of breaking the law on Libya and Medicare.

Is President Obama breaking the law? In an essay in The Wall Street Journal, Karl Rove claims that he is. Rove, the former top political adviser to President George W. Bush, actually accuses Obama of violating two statutes: the War Powers Resolution and an obscure provision of the 2003 law that added Medicare Part D, the prescription drug program.

The War Powers Resolution argument has been fully ventilated, and although it is perfectly obvious that the Libya operation is not in compliance, I have long been numbered among those who consider the statute an unconstitutional interference with the command authority constitutionally vested in the president. True, I also have long been a constitutional curmudgeon who thinks the separation of powers at the federal level is of enormous importance. And for just that reason, my response to Rove’s claim that Obama is violating what is known as the “45 percent trigger” in the Medicare statute is exactly the same: The trigger is unconstitutional.

Congress may be able to command executive departments to issue reports. But it cannot command the president to submit legislation—that is, to do Congress’ job.

The provision to which Rove refers was included in the 2003 Medicare Modernization Act to placate fiscal conservatives, who were worried that the new prescription drug entitlement would require increasing support for Medicare from general revenues rather than the dedicated Medicare payroll tax. The trigger applies when the annual report of the Medicare trustees concludes that within seven years, more than 45 percent of benefits will be paid by general revenues. (When Medicare began in 1966, the payroll tax was projected to cover 97 percent of benefits.) Once the trustees make this determination two years in a row, the president is required to propose a plan to bring the portion of benefits supported by general revenues below 45 percent. It is this law that President Obama stands accused of violating.

It is important to understand how tricky this seemingly innocuous provision is. Because the legislation the president is required to submit must reduce Medicare’s reliance on general tax revenues, the only plans he can offer will by definition either increase Medicare taxes or reduce Medicare benefits. Nothing else is possible. In this sense, the Congress set a sly trap: The president is commanded to send to Capitol Hill legislation that can only cause him political headaches while giving members of Congress a target to attack.

President Bush complied with the law...and burned his fingers. The 45 percent trigger was first pulled in 2006, meaning that the president, in the following year, had to submit plans to “fix” Medicare. He did, proposing what amounted to a reduction in the amount spent on benefits. (Bush’s proposal was criticized for trimming Medicare benefits by an estimated $183 billion—a figure that seems laughably small in light of the present realities.) Although Bush insisted that his plan would actually be good for seniors, the details were drowned by the wave of accusations from members of Congress that he was gutting Medicare. Hardly anyone mentioned at the time that the supposed gutting was actually required by the 2003 law.

President Obama has refused to walk into the trap. Indeed, he has ignored the 45 percent trigger entirely, thus providing the basis for Karl Rove’s charge. The charge is, on its face, correct. The law does require that the president submit a plan to bring the share of Medicare supported by general tax revenues under 45 percent; and Obama, despite prodding by the trustees, has not done so. Rove seems to think that Obama has ignored the rule for political reasons. Such a choice would seem entirely sensible: The president surely observed the drubbing his predecessor took for complying with the trigger.

I would propose another ground for Obama’s refusal: The requirement that the president submit a plan is unconstitutional.

Seriously.

I am not saying that a court would strike the trigger down—indeed, one wonders what plaintiff could challenge the president’s refusal to step into the trap—but if the president refuses to do what the Congress tells him, then the Congress is pretty much stuck.

To simplify the constitutional argument to its essence, consider a single question: By what authority can the Congress ever command the president to submit legislation? Can the president command the Congress to pass a bill? Of course not; nor can the Congress force the president to submit one. Although the courts occasionally have allowed the legislative branch to get away with similar sorts of abdication, the constitutional separation of powers ought to forbid it.

Federal statutes are full of instructions of this sort directed at the chief executive: “The president shall submit” or “The president shall report” or “The president shall inform.” I have been telling my students for years that such language strikes me as rubbish. What the statutes really mean is “We ask the president to” or “We hope the president will” or, really, “We wish the president would”—the last being the substantive intention behind the 45 percent trigger. The trigger represented a desperate plea from the 2003 Congress that the president spare its members the political responsibility of proposing their own Medicare fixes.

Taking Medicare’s problems seriously carries enormous political risk, and it is easy to see why the Congress might prefer to kick the problem over to the executive branch. But the framers did not design a system in which the Congress could tell the executive what legislation to draft. A quarter century ago, in Immigration and Naturalization Service v. Chadha, the Supreme Court warned that the constitutional forms for lawmaking had to be followed even when they “impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable.” Neither the Congress nor the president, said the justices, could avoid “the cumbersomeness and delays often encountered in complying with explicit constitutional standards.”

The Congress may be able to command departments to issue reports or agencies to issue regulations. It cannot command the president to submit legislation—that is, to do Congress’ job. President Bush was in no position to complain about the constitutionality of the trigger, since it was his administration that agreed to it, as the price of the prescription drug benefit. President Obama can and should refuse to comply, on the explicit ground that the trigger is an unconstitutional interference with the authority of the executive.