George Will’s Advice to John Boehner and Mitch McConnell

 

On Wednesday, as the dust was settling, George Will published a column that deserves attention. In it, he suggested a number of measures that John Boehner and Mitch McConnell should press as soon as the new Congress meets.

Some of his suggestions are obvious: the Republicans should repeal the tax on medical devices, authorize construction of the Keystone XL pipeline, mandate completion of the nuclear waste respository in Nevada’s Yucca mountain. Passing these will place President Obama in the awkward position of following their lead or vetoing these popular and sensible measures.

The other three measures Will suggests I find less obvious but far more interesting and compelling, for they address constitutional questions:

Abolish the Consumer Financial Protection Bureau. This creature of the labyrinthine Dodd-Frank law violates John Locke’s dictum: “The legislative cannot transfer the power of making laws to any other hands. … The power of the legislative … [is] only to make laws, and not to make legislators.” The CFPB is empowered to “declare,” with no legislative guidance or institutional inhibitions, that certain business practices are “abusive.” It also embodies progressivism’s authoritarianism by being, unlike any entity Congress has created since 1789, untethered from all oversight mechanisms: Its funding, “determined by the director,” comes from the Federal Reserve.

Repeal the Independent Payment Advisory Board. This expression of the progressive mind is an artifact of the Affordable Care Act and may be the most anti-constitutional measure ever enacted. It certainly violates the first words of the first section of the first article of the Constitution: “All legislative powers herein granted shall be vested in a Congress.” The IPAB’s purported function is to achieve the ACA’s purpose of cost containment by reducing Medicare spending. When the IPAB’s 15 presidential appointees make what the ACA calls a “legislative proposal” limiting reimbursements to doctors, this proposal automatically becomes law unless Congress passes a similar measure cutting Medicare spending. Under this constitutional travesty, an executive branch agency makes laws unless the legislative branch enacts alternative means of achieving the executive agency’s aim. The ACA stipulates that no measure for the abolition of the IPAB can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. So, one Congress presumed to bind all subsequent Congresses in order to achieve progressivism’s consistent aim — abolishing limited government by emancipating presidents from restraint by the separation of powers. This impertinence by the 111th Congress requires a firm rebuke by the 114th. . . .

Pass the Regulations from the Executive in Need of Scrutiny (REINS) Act. It would require that any regulation with at least a $100 million annual impact on the economy — there are approximately 200 of them in the pipeline — must be approved without amendments by joint resolution of Congress and signed by the president. “In effect,” writes the Hudson Institute’s Christopher DeMuth, “major agency rules would become legislative proposals with fast-track privileges.” By requiring legislative complicity in especially heavy federal burdens, REINS is an ingredient in the recipe for resuscitating Congress, which has been far too eager to cede legislative responsibilities to the executive branch.

What we need above all else in the next few years is a reassertion of constitutionalism and a restoration of the separation of powers. What we need is for the legislative power to assert its primacy. Otherwise the United States will become a dictatorship, and the consent of the governed will no longer be requisite.

When he became president, Barack Obama set out to “fundamentally change America”; that is why he tried to brand his administration and its policies as the New Foundation. His aim was to make sure that elections no longer matter. As if the point needed confirmation, witness his behavior these past few weeks: after insisting that the election be fought as a referendum on his policies, he announced on Wednesday that his party’s stunning defeat mattered not one whit.

He needs to be shown that elections matter a great deal. Boehner and McConnell should go for the jugular.

Image Credit: Christopher Halloran / Shutterstock.com

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  1. Nick Stuart Inactive
    Nick Stuart
    @NickStuart

    Paul A. Rahe:He needs to be shown that elections matter a great deal. Boehner and McConnell should go for the jugular.

    Image Credit: Christopher Halloran / Shutterstock.com

    Once again, Prof. Rahe shares that puckish sense of humor that is the delight of all his friends at home and here on Ricochet.

    Yes, that is what they should do. Hopefully that is what they will do. The next two months will give us a very good indicator of what we can expect in the next two years.

    Are they ready to “hit the ground running?” That is, given the predictions of a wave does the Republican leadership have plans in place for a legislative agenda? Have they got the legislation ready in draft format to go to committee the day they get sworn in?

    Do they have a plan to dig in during the lame duck session and not let anything get through besides the minimum funding to keep the government running.

    Have they gamed scenarios for dealing with the mass amnesty Obama is promising? Or are they going to be caught fractious and flat-footed?

    Do they really understand that the people who helped put them in their current position are going to be watching carefully, and looking for them to deliver results (defined as putting bills on the president’s desk to sign or veto)? Or will they be content to whine “it’s impossible to get anything done when you only control Congress, we need the White House too?”

    Do they understand they’re on the brink of a serious mutiny if they reach across the aisle in bipartisan jollity and pass immigration amnesty disguised as “reform?”

    We’ll see very soon.

    • #1
  2. Mike H Coolidge
    Mike H
    @MikeH

    Tread lightly. Don’t get bogged down by things that get twisted into something unpopular. Make sure earmarks never see the light of day again. No more crony capitalism. I don’t know how much the swing electorate cares about Constitutionalism anymore, so don’t assume it’s some sort of slam dunk to enforce it. A couple of things that I would add to this list:

    1.) Repeal the Individual Mandate, at least the enforcement.

    2.) Allow insurers to sell unsubsidized non-compliant health insurance products.

    I don’t know what type of pressure these will put on Obama, but they sound reasonable to my ear, and the aren’t as radical as attempting to suddenly repeal the ACA when we don’t hold the presidency.

    • #2
  3. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Here is what I don’t understand about the REINS act.  If the principal at stake is that Congress can’t delegate law-making authority to the Executive  branch, then why the $100 million annual cost requirement for a regulation to be approved by Congress?  Shouldn’t every regulation issued by the Executive be subject to Congressional approval before taking effect?

    The mischief is in the scoring – who gets to decide what costs get attributed to a regulation?

    Plus, a regulation with a cost of $99 million does not require approval, but a regulation with a cost of $101 million does.  So two million dollars makes the difference.  So why doesn’t a regulation with a cost of two million dollars require approval?

    • #3
  4. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Reid still has 45ish senators he can bend to his will. Reconcilliation is a big weapon, but only has one shot. Each of the things on Will’s list should be done, but Reid can be the obstructionist he accused republicans of being, and do so effectively. McConnell must be very selective about what is included in the budget resolution, and I’m not sure any of these things is of high enough importance to make the list.

    • #4
  5. Fricosis Guy Listener
    Fricosis Guy
    @FricosisGuy

    Paul A. Rahe:What we need above all else in the next few years is a reassertion of constitutionalism and a restoration of the separation of powers. What we need is for the legislative power to assert its primacy. Otherwise the United States will become a dictatorship, and the consent of the governed will no longer be requisite.

    Will’s suggestions aren’t sexy, but they strike at the heart of the administrative Deep State that has grown out of control. My belief is that McConnell groks this stuff better than Boehner (his second wife was a Cabinet Secretary).

    • #5
  6. Butters Inactive
    Butters
    @CommodoreBTC

    I don’t agree with Will/Rahe’s advice.

    In divided government, where Obama will veto everything, the GOP should be passing bills that hurt Obama and the Dems politically when he vetoes them.

    As Mike H. said, the ideas Will suggests, while they are great policy, are easy to twist politically against the Republicans, especially if they are never implemented and people can’t see the impact.

    What’s depressing is McConnell came out of the gate talking about free trade agreements, lowering corporate taxes, and immigration reform. Good policy in some cases, but it reads like a Chamber of Commerce wishlist.

    How about passing some anti-corporate welfare bills? Make Obama an apologist for crony capitalism and a shill for big corporations. Or pass a bill making birth control over the counter. Make Obama look anti-woman.

    I see very little political downside for Obama vetoing the bills Will suggests.

    • #6
  7. user_1938 Member
    user_1938
    @AaronMiller

    Paul A. Rahe: Passing these will place President Obama in the awkward position of following their lead or vetoing these popular and sensible measures.

    To what end? President Obama isn’t running for reelection. And it’s doubtful that fellow Democrats will suffer for his obstinance.

    Besides, do you think swing voters care about a medical device tax? Do they think more than two steps ahead to realize that they are paying that tax in their medical bills (ostensibly covered by Obamacare)? Is the Keystone pipeline suddenly a big concern among non-Republicans, after half-a-decade of apathy or antipathy?

    Do you really think 2016 swing voters will even remember what happens in Congress in the next six months?

    At best, dead-in-the-water legislation like this serves to strengthen the perception later that Republicans are willing to compromise when they propose legislation that President Obama is actually open to. But even that supposes some PR competence, which Republicans have never exhibited.

    • #7
  8. Fricosis Guy Listener
    Fricosis Guy
    @FricosisGuy

    Butters:How about passing some anti-corporate welfare bills? Make Obama an apologist for crony capitalism and a shill for big corporations. Or pass a bill making birth control over the counter. Make Obama look anti-woman.

    I see very little political downside for Obama vetoing the bills Will suggests.

    Good point. I hope that they embed such measures — which can be framed as crony and protectionist — in broader bills that attack cronyism (e.g., insurance risk corridor bailout and IPAB repeals).

    • #8
  9. user_75648 Thatcher
    user_75648
    @JohnHendrix

    While all of George Will’s recommendations have merit I, like you, Paul, think that the last three items are much more important and interesting because they intend to repeal laws that damage the Constitution’s structure.

    In a way, these last three items remind me of the Bill of Federalism.  I an a long time fan of the Bill of Federalism, a set of ten proposed amendments that, if ratified, would do much to roll back the Progressive’s administrative state.  (NB: I don’t approve of all of the BoF’s proposed amendments; I object to the proposed Congressional Term Limits amendment on philosophical grounds.)

    One of the reasons why I like  the last three items is that they require the GOP to make Constitutional arguments that need to be made.  On another recent thread Sal P and I had an interesting discussion where we wondered whether the it was feasible to make a political case to the American voters when success depended on getting them to grasp a little-known Constitutional abstraction: the take care clause.

    Sal was more pessimistic that I was.  While I think the GOP is capable of making such a case–particularly if Ted Cruse is the one that is doing the talking –I am not 100% sure the GOP is capable of being successful.

    Arguments invoking the Constitution need to be made if we want our Constitution to be taken seriously.  I think those last three items are the basis for some very good fights to have.

    • #9
  10. user_836033 Member
    user_836033
    @WBob

    “The ACA stipulates that no measure for the abolition of the IPAB can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year.”

    I’ve never understood this. Does this mean that if Congress passed a law this year abolishing IPAB, and the president signed it, that it wouldn’t be law?  Or does it just mean that they would first have to  amend this original part of the ACA by deleting it, and then abolish IPAB by a separate law? All Congresses are sovereign by definition regardless of what previously enacted laws may say.

    • #10
  11. user_130720 Member
    user_130720
    @

    Paul A. Rahe: Quoting Geo. Will:
    …..Under this constitutional travesty, an executive branch agency makes laws unless the legislative branch enacts alternative means of achieving the executive agency’s aim. The ACA stipulates that no measure for the abolition of the IPAB can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. So, one Congress presumed to bind all subsequent Congresses in order to achieve progressivism’s consistent aim — abolishing limited government by emancipating presidents from restraint by the separation of powers. This impertinence by the 111th Congress requires a firm rebuke by the 114th. . . .

    Lerner(no not that Lerner) said it best: Let’s start at the very beginning….a very good place to start. So when you write you begin with ABC, and when you “right” you begin with IPAB…..

    1. Buy every Congressman and Senator a copy of Phillip Hamburger’s 
    Is Administrative Law Unlawful? and then hire some old Reader’s Digesters or Cliff Notes editors to pare it down to a size and simplicity even a Congressman could and would read.

    2. Next, go after the IPAB just as GW suggests.

    3. Then Congress must immediately take a page from President Jackson’s playbook and defang and disregard the inevitable response by a “friendly” judge who will try to tell this Congress that they are bound by IPAB and every other overreach of prior Congresses.

    4. Finally, enjoy the fireworks as we celebrate the beginning of the restoration of the Founder’s design.

    Oh–and most folks won’t give a fig which is why Congress as practitioners of Public Choice Theory will continue to do the same silly nation defeating but self-serving things that both parties in power have become so good at over recent decades. And as another Loehner said it:
    “The song has ended, but the melody lingers on……”

    • #11
  12. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    I agree with the policy prescriptions.  I don’t see it, or think it should be, going for the jugular.  Be firm and conservative, but be gracious.  Make him look petulant and stubborn in addition to wrong.  Obama is already digging himself a hole on that account and Republicans should do everything they can to hand him the biggest shovel around.

    • #12
  13. Tuck Inactive
    Tuck
    @Tuck

    “Otherwise the United States will become a dictatorship, and the consent of the governed will no longer be requisite.”

    That horse has left the barn.

    Both Republicans and Democrats have been tromping all over the Constitution for decades.

    Ronald Reagan voided the Fourth Amendment with this order:

    Senior Officials of the Intelligence Community. The heads of departments and agencies with organizations in the Intelligence Community or the heads of such organizations, as appropriate, shall:
    “(a) Report to the Attorney General possible violations of federal criminal laws by employees and of specified federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;”

    That, not anything passed by the Congress, is the authorization for the Parallel Construction effort supported by almost all Republican officials.

    Sadly, I think it’s unlikely the Republicans will do what is necessary to reinstate Constitutional order, as it’s not in their institutional interests to do so.

    • #13
  14. SoMS Inactive
    SoMS
    @SoMS

    Paul A. Rahe:He needs to be shown that elections matter a great deal. Boehner and McConnell should go for the jugular.

    I agree with the article until the end.

    We don’t need to show Obama anything. A majority of voters in the country now knows how small and partisan he is. Obama won’t change, but he won’t be president for much longer either.

    Attacking Obama will backfire. We need to spend our energy and political capital correcting his policy mistakes. If we get into a spitting contest with him we give him an opportunity to make this all about personal conflict and not about government policy. If we do as the rest of the article suggests and pass bills that help the country we’ll be rewarded by the voters in 2 years.

    • #14
  15. user_51254 Member
    user_51254
    @BereketKelile

    There are good policy measures that make for bland optics and there are good policy measures that make for great optics. As long as they send bills to the president that show how pro-middle class they are I’ll be happy.

    • #15
  16. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    I agree these high fallutin’ “unconstitutional” arguments have merit and should be supported, but I don’t think the motivation behind them  is solely the nefarious expansion of progressivism. I think many good ol’ boys on our side of the aisle like to duck responsibility too.  For far too long being a Member of Congress has been the modern day equivalent of being carried around Rome in a sedan chair by a retinue of slaves, and Congresscritters have learned to remake their role from decision maker to that of ombudsmen from their district to the federal bureaucracy. Any contentious issue that is going to displease some of their constituents is punted to the courts with vague, self-contradictory bills for the judges or regulators to sort out off camera. Then navigating through this maze offers opportunities to please cronies, contributors and constituents.

    George Will’s proposals are a start, but more fundamental change would require us to start evaluating potential Justices on these issues. Should laws that allow essential or core functions to be delegated not be declared unconstitutional?

    • #16
  17. Xennady Member
    Xennady
    @

    Abolishing the IPAB is a fine idea, but it seems to me it displays a ruthless instinct for the capilaries, nothing more. For example, I can see the GOP presidential campaign ads for 2016 now: Vote for X! He supports abolishing the IPAB!!

    I’m not impressed.

    I’d also like to know just what happens if Barry yields to reality and allows the Keystone pipeline to get built. Great, but has the real problem been solved?

    I say no, because the dirt-worshipping neo-pagans of the green movement would still retain a near universal ability to stop economic activity in this country. When Congress has to pass a special law to allow economic activity over their objections the problem remains unsolved and largely untouched, in my opinion.

    Go big GOP, or you certainly will go home later.

    Fighting IPAB or approving the Keystone pipeline just isn’t enough, and if you can’t come up something larger than that, you’ll fail.

    • #17
  18. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    I agree with here. Good proposals and it would be GOP making constitutional arguments. Making the arguments, getting it out there, is a key way to help hold the party together.

    • #18
  19. Carey J. Inactive
    Carey J.
    @CareyJ

    Derek Simmons: 1. Buy every Congressman and Senator a copy of Phillip Hamburger’s  Is Administrative Law Unlawful? and then hire some old Reader’s Digesters or Cliff Notes editors to pare it down to a size and simplicity even a Congressman could and would read.

    I think Marvel Comics is probably better suited to simplifying a book to Congressional comprehension levels.

    • #19

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