[bmelton]

> a small minority of republicans are subverting the budget process because they don't like a law

So, not to get into a partisan argument (because I'm not a Republican), but the Supreme Court battle for the individual mandate imposed by the ACA circumvented the House's budgetary authority here, and that's why we're log-jammed at the moment.

The Constitution prescribes that all spending bills must originate in the House. This is called the 'Origination Clause' (Article 1, §7), and states that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills".

The ACA originally imposed fees, but as the Supreme Court challenge (NFIB v Sebelius) declared imposing fees would be unconstitutional, but that could be easily circumvented by imposing the fees as a tax, for which Congress has authority. In that process though, taxes are at the discretion of the House, and the Senate ignored that -- then neglectfully failed to pass even a single appropriations bill over the past five years that could have headed this off.

Yes, I know that blaming Republicans is cool and all, and fits the current media narrative, but in this particular case, it bluntly ignores the absenteeism of the Senate for the past five years, and both parties, and indeed both wings of Congress are at fault.

[dragonwriter]

> So, not to get into a partisan argument (because I'm not a Republican), but the Supreme Court battle for the individual mandate imposed by the ACA circumvented the House's budgetary authority here, and that's why we're log-jammed at the moment.

This is simply false.

> The Constitution prescribes that all spending bills must originate in the House.

Presumably, you mean tax bills, as saying this of spending bills would both be wrong and irrelevant to the issue at hand.

> The ACA originally imposed fees, but as the Supreme Court challenge (NFIB v Sebelius) declared imposing fees would be unconstitutional, but that could be easily circumvented by imposing the fees as a tax, for which Congress has authority.

No, NFIB v. Sebelius [1] upheld the individual mandate as a valid exercise of Congress' taxing power.

It did not strike down a "fee" in the law and say that that "could be easily circumvented" by imposing a tax to replace the fee, as you suggest.

> In that process though, taxes are at the discretion of the House, and the Senate ignored that

No, as noted, tax bills must originate in the House, they are not at the discretion of the House. And, in any case, that's all irrelevant, since, contrary to your mischaracterization, the Supreme Court didn't strike down the PPACA individual mandate and invite Congress to replace it with a tax, it found that it was valid as a tax.

[1] http://www2.bloomberglaw.com/public/desktop/document/Natl_Fe...

[bmelton]

It was not originally presented as a tax, but as fees, Justice Roberts' categorization of the fee as a tax was the first time that had happened.

Beyond that, yes, I did conflate spending and taxation, but both taxes are indeed at the discretion of the House, or we wouldn't have the impasse that we currently do.

Regardless, my point remains that either the Democratically controlled Senate or the Republican controlled House could reopen the government today with a simple vote, and I cannot fault Boehner or Reid for being just as obstinate as the other, when both are clearly being equally bull-headed.

[dragonwriter]

> It was not originally presented as a tax, but as fees.

How something is presented is tangential, and often outright irrelevant, to its Constitutional status. You statement that the Court struck down the mandate but offered a tax as an option is simply, directly, factually wrong. They upheld it, which is exactly the opposite of striking it down.

> but both taxes are indeed at the discretion of the House, or we wouldn't have the impasse that we currently do.

No, if anything relevant to the current situation (in which the critical thing which allows it to produce a shutdown is spending, not taxes) was at the discretion of the House, we would not have an impasse. The House would dictate their will, and it would be done -- no impasse.

We have an impasse because, like any law, appropriations (whether in the form of the budget or more limited appropriations bills) must be approved by both houses and the President (or by both houses with sufficient support to override a veto), and there is a lack of consensus between the three (two colletive and one individual) actors involved, not because the matters involved are at the discretion of any one of those actors.

[bmelton]

I feel like this argument is one of semantics, so I'll just attempt to clarify.

Justice Roberts, the swing vote, would have struck down the penalty but for his characterization of it as a tax, as well as having characterized that tax as a flat penalty against which modifiers were imposed. As a result of its tax characterization, it violates the Origination Clause of the Constitution, which has never been remedied.

Whether not the House approves of a new tax is at the discretion of the House. You are clearly correct in that both wings of Congress need to approve of it, but either party can reject and be simply done.

I appreciate the corrections, but much of them were, I feel, implicit in the tone of my original post, though yes, I did overstate the NFIB decision.

[dragonwriter]

> As a result of its tax characterization, it violates the Origination Clause of the Constitution

That's a fine assertion, but if it were true then it would not be a valid exercise of the taxing power, and since the Supreme Court ruled that it was a valid exercise of the taxing power, a majority of the Supreme Court clearly does not believe that it is true. And note that the issue of whether it was a proper exercise of that power was briefed in the case by both supporters and opponents of the bill.

The procedural history of PPACA is, to say the least, convoluted, but the actual bill in which it was contained was a bill originating in the House (as was the reconciliation measure immediately passed amending it which is generally viewed as part and parcel of PPACA) [1] -- so, strictly speaking, the bill did originate in the House (every single letter in the final bill was the result of an Amendment in the Senate, and the House then concurred in the Senate amendments, but the Origination clause explicitly permits the Senate to amend bills subject to it the same as any other legislation.) So, even ignoring the fact that NFIB v. Sebelius essentially forecloses the argument anyway, the facts seem pretty clearly contrary to your Origination Clause claim.

> Whether not the House approves of a new tax is at the discretion of the House.

The House did approve of the individual mandate in PPACA. Otherwise, there wouldn't be an Act of Congress to be the subject of NFIB v. Sebelius.

[1] for details, including an in-depth discussion of the procedural history, see http://www.aallnet.org/main-menu/Publications/llj/LLJ-Archiv...

[bmelton]

That'll take a bit to read, so don't take my non-response as ignoring you. Thanks for the link, I'll get back to you.

[canweriotnow]

I think you're also forgetting: post Marbury v. Madison, the meaning of the Origination Clause is at the discretion of the Supreme Court.

Match point.

[bmelton]

Well, that the Constitutionality of all things is ultimately determinable by the Supreme Court is of course subject to judicial review, there was nothing in Marbury v Madison that has any direct impact on the Origination Clause whatsoever.

I don't mean to be dismissive, but I don't see what point it is that you're making. Please clarify?

[adammichaelc]

Relevant. http://xkcd.com/386/

[canweriotnow]

You're telling me. I actually took a break from Guild Wars 2 to comment on this thread.

[unclebucknasty]

Man, this just misses the point by miles and is consistent with the cynical narrative that the Republicans are now trying desparately to establish. That is, "the Constitution grants Congress the power of the purse, blah, blah, blah".

The bottom line is that the action of shutting down the government as a means of forcing a completely unrelated concession from the White House/Senate is just plain wrong and damn near extortionate. They put the ACA to a vote 43 times since its passage and couldn't do anything with it. You really think it's healthy Constitutional politics to then subvert that expression of the people's will by inflicting harm on the entire country unless they meet your demands?

But, if you want to pull out the Constitution, then cool: let Mr. Boehner put it to an up-down vote so that the will of all of the people can be expressed via their elected representatives. But, what is this handful of people shutting down the government nonsense?

The past five years have nothing to do with this. Both parties are not at fault. Both houses are not at fault. A small minority of Republicans and a gutless Speaker are at fault. Period. Anything else is just a cynical red herring. Discussing the merits of the ACA in the context of the shutdown simply indicates that you're either following the red herring or dragging it.

BTW, yes, I voted for Obama and have had mixed feelings on his performance. But, this truly rises above partisan politics to what's good for the country. Just a handful of people are ready to burn the place down for one very narrow ideological obsession. There is a real threat/problem here that should concern everyone.

[bmelton]

> BTW, just because you're "not a Republican", it certainly > doesn't mean that you're non-partisan. Either way, you seem > awfully defensive for a non-Republican.

Mostly, I'm just sick of seeing both sides make the same talking points over and over again to see which one's soundbites happen to stick better. As much as you discredit Boehner for disallowing an up or down vote, Reid is doing the exactly the same thing with the memorial funding, FEMA funding, etc., etc., but the pot still calls the kettle black, and only because they're ahead in the polls.

If they weren't polling ahead, they'd have already begun the process of concession and started actually funding the government, or at least the vast majority of it, and could take the Obamacare fight separately, which is one that the House is sure to lose anyway.

Most of the people that I've seen getting upset at the Republicans about this are upset because they're proponents of Obamacare, and most of the people I've seen getting upset at the Democrats are just doing so on party lines. The House is almost perfectly divided on party lines over this, but have seen minor bi-partisan support on the individual funding bills, which the Senate refuses to entertain, only because they're winning the popularity contest.

Regardless, onlookers have generally claimed their stake in the war based on the politics they already had, with both sides buying into the bullshit talking points that their elected representatives have manufactured.

Yes, Boehner could probably end this with a single up / down vote on a "clean" CR, but he's certainly not obligated to.

Yes, Reid could probably end this with a few procedural votes, but he's also not obligated to.

Obama could also end this by offering a little bit of non-confrontational advice to either side, but he's not obligated to.

Of those, I really only criticize the Executive Branch, because I do feel that a large portion of his job is to be one of unification, for which he has failed at in his second term, and having witnessed his negotiation style with Boehner post-election, it was not one of concession.

The idea that the Senate should get a "clean" CR just because they want it is equally as farcical as the idea that the House should get a concession bill passed in which Obamacare is delayed.

The middle ground happens to be the area in which I think the House somewhat inadvertently stumbled into, which is the piecemeal legislation, but looking through history, that is the regular order on how these things tend to be organized where both wings are far apart on the '100%' solution... and the Senate refuses to entertain that.

If I seem nonplussed by the affair, it's not because of any kinship with the Republicans, but because I'd personally like to see our government be less efficient, as I suspect very heavily that is what our founders would prefer. A slow moving government is in the best interests of liberty, and I'd much rather see bills take far longer to hash out than to have trillions of dollars in spending or taxes approved with an uncontested procedural vote.

Edit: And I had to add this, but thinking I'm a member of the opposition party because I'm not in 100% agreement with your party does nothing but affirm my pessimism about thoughtful politics in the US. Not that you should care, per se, but there are people out there who try to reason their way into the intelligent side of any issue, without bothering to check and see which way they're "supposed" to feel based on party lines. That isn't an accusation to you, or anybody here, so much as a signal that both sides are wrong about as much as they're right, and we shouldn't feel "loyalty" to politicians that we like enough that we should support them when they're wrong, and vice versa.

[unclebucknasty]

Your post illustrates a big part of the problem. There is all of this false equivalence, wherein the proposition is made that both sides are equally at fault. The media is guilty too (at least the outlets that make some attempt at coming off as balanced). They attempt to lay equal blame, even when one side is clearly nuts. When such false equivalence is made, it exonerates abhorrent, harmful behavior and gives cover to those who practice it.

And, that's what's happening here. You are posing as a thoughtful centrist, when in actuality, you are equivocating. No one could look at this objectively and conclude that it's reasonable or healthy behavior for our country. That's what gives you away, contrary to your assertion that I believe you to be "of the opposition" simply because you don't agree with me 100%.

Even more thoughtful, saner Republicans like Pete King are going on record as hating this insane gambit. It is splitting the Republican party itself right in two, and is the source of serious party infighting. So, your assertion that people are merely digging in based on their prior positions is patently false. Likewise, polling shows that something like 70% of those who oppose the ACA don't want the government shutdown over it. So ironically, it is your own willful blindness to these facts and subsequent assumption that I must simply oppose what the Tea Party is doing due to my party affiliation, that further reveals that you are as partisan as they come.

Edit: You're trying to decry partisan politics, when you're just as engaged as anyone. You want to come off as a wise sage who floats above it, when you're really right in the middle.  When you walk around assuming that everyone is engaged in partisanship vs. thoughtful politics and branding them accordingly (especially when they disagree with you), then what, exactly, does that make you?

There are valid points to be made against the ACA. I believe that on balance it is a big step in the right direction, but will certainly need to be tweaked. So, when I see sane Republicans discuss it, I respect and hear their opinions. But, this is something else. That's what many Republicans are saying in private--and some publicly--along with much of the nation.

I will be the first to agree--along with 90% of the country--that our politics are dysfunctional. I am also weary of this bipolar system that produces such entrenchment. But, the difference is that while there are extremist fringe elements on both the left and right, those on the right are now actually driving a major political party. Ignoring this very obvious fact that even Republicans acknowledge to their chagrin, does not fix our politics. In fact, it just makes you a tacit endorser of their extremist, partisan behavior and furthers the divide.

[guelo]

None of what you say makes sense. Obamacare is constitutional because the Supreme Court said it was constitutional, that's how our system works.

The Republicans are dead set against the law and are prepared to burn the government down to stop it. Simple as that. It's not some techinical procedural legality as you make it out to be.

[readme]

The republicans are willing to take jobs away from families in order to make sure the poor and sick don't get equal access healthcare. That's how simple it is.

[ewoodrich]

> taxes are at the discretion of the House, and the Senate ignored that

Wrong. Taxes (actually, any appropriations or taxation) must originate in the House. Which is easily circumvented by replacing the text of an appropriations bill that passed in the House using a Senate amendment, and has been used far before the passage of the ACA.

This is hardly new, and doesn't mean "taxes are at the discretion of the House". Every bill must be approved by both the House and the Senate (and the ACA did, otherwise it wouldn't even be a law at all), the original bill is required to have technically originated in the House.

"According to the Origination Clause of the United States Constitution, all bills relating to revenue, generally tax bills, must originate in the House of Representatives, consistent with the Westminster system requiring all money bills to originate in the lower house. House appropriations bills begin with "H.R.", meaning "House of Representatives". The Constitution also states that the "Senate may propose or concur with Amendments as on other Bills," so in practice, the Senate and House each drafts and considers its own bill. The Senate then "cuts-and-pastes", substituting the language of its bill of a particular appropriations bill for the language of House bill, then agrees to the bill as amended." [1]

[1] http://en.wikipedia.org/wiki/Appropriation_bill

[indrax]

>and that's why we're log-jammed at the moment.

This implies that it's just a matter of mistakes made in the past, that it created some mechanical-procedural problem that all our politicians are powerless to fix, and it just needs to work itself out with maybe some nudging.

This suggests that it is not the case that some group is actively maintaining a condition of closed government offices.

[bmelton]

Putting that statement back into context though, I went on to explain that either party could reopen offices.

The problem is that generally, each party thinks that their opposition party is the one that can clear the jam, while ignoring that both parties are being stubborn on their points.

A fun, but unrelated exercise would be to see if you can find faults by members of your preferred party that has contributed to the intractability of the current standoff. If you cannot, then I would wager that your stance on this issue is colored by party lines.

More fun, as most people would do when faced with this challenge, is to watch as people acknowledge faults in their own party, but then go on to subsequently explain how much more egregious the faults are that reside in the opposition party.

Everybody's politics is naturally colored by their own beliefs, but as a debate on procedure, they're basically irrelevant here. We have a standoff. The timing of it is poor, and perhaps the motivations for it are even worse, but we have a standoff, and neither party is willing to negotiate in good faith.

That particular fault lies equally with both parties at present, and any attempts to influence the conversation otherwise are disingenuous, in my humble opinion.

[indrax]

>I went on to explain that either party could reopen offices.

You didn't in the comment I replied to. You talked about what the Supreme Court did, What the Senate could have done, and said that both parties and both wings are at fault. This all fits the logjam narrative.

I see now you speak of solutions that could come from either party through a 'simple vote'.

My preferred party is not at fault because my preferred party is not in congress. My comment was nonpartisan and did not restrict blame to any one house or party, or even branch. It extended blame into the present.

That said, there are some car accidents in which one party is at fault yet which could still have been prevented by defensive driving by other parties. You could always say everyone involved failed to yield right of way. I also suspect any explanation of simple voting must include the word filibuster.

[teh_klev]

For us non-US folks what is the "ACA"?

[bmelton]

ACA is the Affordable Care Act, more colloquially known as Obamacare.

Offtopic perhaps, but somewhat hilariously, ad-hoc polls indicate that if they are presented as separate things, people vastly "prefer" the ACA to Obamacare, despite them being the same thing.

[teh_klev]

Thanks, and insight appreciated.