The following was published early in 2011 by The Conservative Caucus Foundation.
Repeal Through Defunding: Ending ObamaCare in the 112th Congress
Although the repeal of ObamaCare has passed the House of Representatives during the 112th Congress, it still faces roadblocks in the Senate and at the White House. It appears that ObamaCare’s opponents will be required to block implementation by refusing to provide any funding. This will raise objections from ObamaCare supporters who will insist that a Federal program, once enacted, cannot be indirectly repealed through the appropriations process. One commentator has already predicted a “Constitutional and budgetary crisis”.
DEFUNDING IS A PRACTICAL OPTION
A careful examination of the Constitutional and legal questions, however, shows that the defunding approach is well within the power of Congress (and of the House alone, which bears sole responsibility for initiating appropriations bills). Both the Constitution and Congressional practice support that conclusion.
NO MONEY SHALL BE DRAWN
Article I, Section 9 of the Constitution includes the statement that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. James Madison described this as ‘the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people”.
No exceptions are provided, and the state ratification debates affirm the strict interpretation of this clause. Edmund Randolph pointed out that even the payment of lawful and recognized government debts could not take place without an appropriation, while George Nicholas declared that the House of Representatives could use its power of the purse to “put a stop to the operations of government”. Both these statements have been validated in practice. St. George Tucker noted in his later commentary on the Constitution that “no claim against the United States (by whatever authority it may be established) can be paid but in consequence of a previous appropriation made by law” and the U.S. Supreme Court has continued to take this view.
AUTHORIZATION WITHOUT APPROPRIATION IS INOPERATIVE
President Clinton acknowledged in 1995 that after vetoing the appropriations for some government agencies he had no choice but to close those agencies until he and Congress could reach agreement on a new appropriations bill. The fact that many of those agencies had a legal authorization on the books was irrelevant without an appropriation. By vetoing the appropriation, Clinton had imposed a de facto repeal of those authorizations, though an intentionally temporary one.
ARTICLE ONE SECTION 8 ESTABLISHES BOUNDARIES
The Constitution also says, in Article I, Section 8, in the clause relating to raising and supporting armies, that “no Appropriation of Money to that use shall be for a longer term than two years.” This was included for the explicit purpose of guaranteeing that Congressional approval for a standing army would be required at least every other year.
In that context, it is instructive to see how the First Congress, filled with many men who had served in the Constitutional Convention, the state ratification conventions, or both, dealt with the establishment of a standing army. Although their first act was merely to extend the existing law of the Confederation Congress, they followed up in 1790 with a new and expanded law. This “Act for Regulating the Military Establishment of the United States” included a provision that soldiers should be enlisted “for the service of the United States for the period of three years.” It is impossible to believe that these men could have believed that passing such a law could overcome the provisions of Article I, Section 8. Therefore, the only possible conclusion is that the First Congress recognized that their acts were subject to de facto repeal by a future Congress if that Congress refused to appropriate the pay for soldiers with time left on their legal three-year enlistment. Congress could pass laws with only the hope, not the assurance, that they would receive essential funding for as long as they were on the books.
The actions of the Fourth Congress in 1796 also show an agreement that Congress, and especially the House, has full discretion in the appropriations process. The Senate had ratified the Jay Treaty in 1795, and the Treaty could not be carried out without appropriations by Congress. It became apparent as Congress convened that the Republicans in the House of Representatives, being opposed to the treaty, posed a serious threat to the passage of any such appropriation. President Washington, however, never even attempted to claim that the mere ratification of the treaty allowed him to spend the necessary funds, bypassing the appropriations process. Instead, during March and April of 1796, Federalists in the House lobbied constantly to win Republican support, and finally succeeded in passage on the narrow margin of 51-48.
It is well worth noticing that the climactic floor speech for the Federalists, that of Fisher Ames, conceded the Constitutional point and argued that the treaty should be carried into effect on its merits. After phrasing the question as whether the treaty was bad enough to justify rejection by the House, and conceding that he would vote against appropriations for a treaty if he considered it bad enough, he then argued that the funding should be approved based on the benefits the treaty would bring to the United States.
The House and Senate Rules might be cited as justification for mandatory funding, since they seem to establish a bond between the processes of authorization and appropriation. However, Congressional practice has long made this bond nothing but an ignored formality. Despite the requirement in the rules that only authorized programs may receive appropriations, Congress has continued to appropriate even when authorizations have expired. The appropriation itself is treated as a sort of de facto authorization. This has become such an accepted practice that the Congressional Budget Office is now required to issue an annual report on “Unauthorized Appropriations and Expiring Appropriations”. The report issued in January 2010 stated that “Congress has appropriated about $290 billion for fiscal year 2010 for programs and activities whose authorization of appropriations have expired”. If Congress can accomplish a de facto authorization through the appropriations process, it must also have the power to bring about a de facto repeal through appropriations.
Defunding ObamaCare should be debated solely on it merits, without concern for Constitutional objections to the method. A long historical record demonstrates that the appropriations clause of the Constitution has consistently been understood to mean exactly what it says. If Congress refuses to make an appropriation, or puts restrictions on the expenditure of the money which it does appropriate, the matter is settled. If Congress is willing to repeal ObamaCare, defunding is a legitimate approach.
 Frum, David, Newt’s ObamaCare Shutdown Fantasy, FrumForum, April 9, 2010, http://www.frumforum.com/newts-obamacare-shutdown-fantasy.
 Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers, The New American Library, 1961. pg. 359.
 Kaminski, John P. and Saladino, Gaspare J., eds., Documentary History of the Ratification of the U.S. Constitution and the Bill of Rights, State Historical Society of Wisconsin, Vol.X, pg. 1349 and Vol. IX, pg. 925-26.
 Tucker, St. George, View of the Constitution of the United States with Selected Writings, Liberty Fund, 1999, pg. 298-99. The Supreme Court, in the 1990 decision of Office of Personnel Management v. Richmond, overturned an Appeals Court ruling ordering payment, and declared that “payments of money from the Federal Treasury are limited to those authorized by statute”.
 Drew, Elizabeth, Showdown: The Struggle Between the Gingrich Congress and the Clinton White House, Simon & Schuster, 1996, pg. 322-341.
 The Federalist Papers, pg. 158.
 Bickford, Charlene Bangs & Viet, Helen E., Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791, Vol. V, The Johns Hopkins University Press, 1986, pg. 1274.
 Elkins, Stanley & McKitrick, Eric, The Age of Federalism: The Early American Republic, 1788-1800, Oxford Univerisity Press, 1993, pg. 441-49 and Cunningham, Noble E., The Jeffersonian Republicans: The Formation of a Party Organization, 1789-1801, pg. 77-85.
 Allen, W.B., ed., Works of Fisher Ames, Vol. II, pg. 1152 ff.
 Unauthorized Appropriations and Expiring Authorizations, January 2010, Congressional Budget Office, 2010, pg. 2.
ACL is a public policy organization, contributions to which are not tax deductible. The IRS has determined ACL to be a 501(c)(4) organization, exempt from Federal income tax. Contributions to ACL are not subject to FEC regulation or disclosure requirements, and corporate donations are permitted.