Legal Commentary

How to ?Kill the Bill?

By David Bernstein

(1) Have Republican Senate and House candidates nationwide run on a platform along the lines of the ?Contract with America? that they will not vote to approve any budget that includes appropriations to effectuate provision of Obamacare.

(2) The GOP take over the House or Senate, or both.

(3) The House or Senate or both pass budgets that bar the executive branch from spending money to implement Obamacare.

(4) The Democrats refuse to go along.

(5) The public sides with the Republicans (who point out that they won the 2010 elections on exactly this platform), and Obama is ultimately forced to sign a budget that bars appropriations to implement ?the bill.? The bill is killed.

(6) 2012 election is then fought (in part) over whether the law should be formally repealed, or implemented.

How likely is this scenario? I have no idea, but better than relying on the courts.

UPDATE: Several commenters suggest that this strategy isn?t viable, because it would only stop the executive branch from spending money on implementation, not from enacting and enforcing regulations. I?m no expert on the federal budget process, but my understanding is that Congress can in fact pass legislation (with the president?s signature, of course) that bars the executive branch from using its resources to enact and enforce regulations pertaining to existing laws. The legislation stays on the books, but there?s no money available to do anything with it. I suppose one could posit an inherent executive power to enforce legislation even if a new law bars the president from using executive branch resources to do so. But that sounds like an awfully ?Bushian? view of executive power.

Full post as published by The Volokh Conspiracy on March 23, 2010 (boomark / email).