Let's Make a Deal! With Whom?

I'm trying to follow the insider baseball, sausage-making aspects of the current impasse in Washington as little as possible. But, to be honest, it's like seeing a couple of locomotives heading for a head-on collision: it's hard to turn away.

This is how I see things—and, again, I'm not DC villager or insider. I have no privileged access to the thinking process (and I use that term loosely) of either side.

There seem to be several issues in the hopper: (1) The 'continuing resolution' or 'CR' which in lieu of a new, agreed-to budget allows the Federal government to keep operating at its current level of funding (post-sequestration); (2) The 'debt ceiling' which the Federal government will hit on or about October 17, the extension of which would allow the U.S. Treasury to continue to pay interest on U.S. Treasury Bonds, i.e., pay the interest on Federal debt that has already been racked up; 3) The implementation of the Affordable Care Act aka 'Obamacare', more specifically the opening of statewide exchanges which allow individuals to purchase health insurance on the open market at collective, or group, rates which, theoretically would drive down the costs of premiums.

The present shut-down is supposedly about number (1) above. The House of Representatives has refused to pass a CR unless President Obama delay (3) or do away with ACA altogether. The House has a Republican majority and has refused to date to pass a clean 'CR' (one without extraneous matter attached), something the Senate has passed. The Republican House has voted some 40 times to repeal ACA. They have attached a similar repeal to the CR, and lately have attached a delay of the individual mandate portion of ACA to the CR.

It seems beyond dispute that the Speaker of the House, John Boehner, could get a majority of Congress members to pass a clean CR if he would agree to bring it to the floor of the House. Most, if not all, Democratic members would vote for a clean CR as would sufficient Republican to garner a majority of total votes. Boehner apparently refuses to do so because he cannot whip a majority of the Republican caucus in favor of bringing a clean CR bill to the floor.

The Republicans who want to repeal ACA will, it is believed, attempt to unseat Boehner as Speaker if he introduces a clean CR.

I've seen this tactic over and over. If you don't want to do a deal, you claim you can't do a deal. Someone else won't let you.

Boehner and the Republicans claim that Obama and the Democrats are refusing to negotiate. This despite the fact that the President met yesterday with leaders of both parties from both chambers. They claim ACA was never 'litigated' or negotiated. This despite the last major election in which Obama was decisively elected over a challenger who vowed 'on day one' to repeal Obamacare. And the full day in 2010 when Obama met with the leaders of the opposition to entertain their arguments about ACA—on national television. Moreover, ACA was passed by both houses of the Congress with Republicans using every procedural means available to stop it, but failing to participate in negotiations to improve or make it better.

This is not the first time the Republicans have used a CR to try and wrest concessions from the President. The last time, the President and the Speaker of the House reached an agreement in principle on a 'grand bargain' which included tax reform and revenue issues as well as budget cuts and entitlement reforms. This deal died when the Speaker took it to his members. And therein lies the problem.

By all appearances (and I cannot tell whether Boehner is playing a double game here), the Speaker does not have the power to negotiate on these matters. Or that, at least, is the face he is putting on the matter. I've seen this tactic on many occasions in my practice of law, as has any judge who deals with commercial matters. In order to knock heads together and force a settlement of a contentious litigation, the judge will often force 'decision-makers' for each party to meet. There can be no "I'll take it back to my people." The person in the room has to be authorized to act. And Boehner, apparently, doesn't have the authority to act on the CR.

This is a big problem. You can't negotiate with someone who doesn't have the authority to make a deal. If Obama and Boehner strike a deal, there is no guarantee that the Republican caucus will approve. So, what's a President to do?

Recall, the faction in the Republican party which is behind this matter campaigned on going to Washington to shut down the government. Shutting it down is what they want. There is statement after statement on the record vowing to shut it down. They met in caucus recently and voted to pursue this strategy. Eighty of them signed a letter recently declaring their intention to shut down the government if Obama refused to stop implementation of ACA. And now they want the press and American public to believe that the shutdown is Obama's fault because he refuses to negotiate with them. They do not want to be held accountable for their avowed plan. One supposes they are relying on the laziness and ignorance of the American public (and the press) which will blame both sides.

It seems to be an intractable mess. What's more, since many of these intransigent Republicans are in gerrymandered districts, there is little to no chance of defeating them in the next mid-term election cycle. As a result of the Citizens United decision by the U.S. Supreme Court, moreover, many of these Republicans are financed by the political arm of the far-right Koch brothers operation, including but not limited to the so-called 'Tea Party' and the U.S. Chamber of Commerce and any number of shady-money organizations.

While the shutdown of the Federal government is a nuisance and is debilitating to many people around the country—much of which these Republicans refuse to acknowledge—the failure of Congress to extend the debt ceiling could be disastrous. And there is every indication that the Republicans want to link the two and use them to increase their leverage over the President and against ACA.

No one seems to be asking why they want the 35 to 40 million people who will obtain affordable health insurance under ACA to lose their chance of being covered for medical costs. They claim it's a disaster, even though it hasn't been fully implemented yet. They claim we can't afford it, even though the rise in health care costs has slowed down significantly and individuals are finding that premium costs are within reach of middle-class Americans now for the first time in a generation.

Similarly, no one seems be asking why they are refusing to abide by their Constitutional duty. The Tea Party Republicans rode to power on a platform of forcing President Obama to abide by the U.S. Constitution which they treat as a sacred document.

Article 1 of the U.S. Constitution lays budgeting authority and responsibility squarely on Congress. Article I, section 9, clause 7 states that "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time."

It is Congress's Constitutional duty to pass a budget, something it hasn't done in years and something it is refusing to do now unless it forces concessions from Obama on ACA.

Similarly, the Congress has the authority to borrow money to pay for the debts incurred by the government—debts which it and it alone specifically authorized. Article I, Section 8 of the U.S. Constitution states: "The Congress shall have power ...To borrow Money on the credit of the United States."

Moreover, by threatening not to extend the debt ceiling on Oct. 17, these Tea Party Republican Congress members are threatening to violate their Constitutional duty to pay the bills they themselves incurred (e.g., in authorizing wars in Iraq and Afghanistan, tax cuts for wealthy Americans and corporations). Amendment XIV, Section 4 of the U.S. Constitution states: "The validity of the public debt of the United States, authorized by law ... shall not be questioned."

Congress authorized the expenditure of the money (N.B. Once Congress authorizes expenditures, the Executive (i.e., President Obama in this case) must carry out Congress's wishes.) Congress authorized the borrowing of money to pay for these budgeted expenditures. Now, Congress has to pay that money back. Just because the costs of its actions exceeded its intake of revenue, it is not relieved of its responsibility.

Yet, this is what is being threatened by a faction of Republicans. Default on authorized, legitimate debts of the U.S. And no one seems to be capable of holding them responsible for their actions. Not John Boehner—whose intentions and motives in this are at best questionable. Is he merely craven? Seeking to hold onto his Speakership? Or is he in cahoots with the Tea Party faction in his caucus—despite his pleas to the contrary? Why does he refuse to bring a clean CR to the floor? Why is he allowing his members to threaten the 'validity of the public debt'?

Nor are their constituents, apparently, capable of holding this minority responsible. They are well-funded and organized and seem to be dug in.

I've tried to present this without resort to rhetoric or emotional terms such as 'hostage-taking'. This is my analysis of the law and the facts as I see them. What the resolution of this is is simply beyond me.