When Democrats Defended the Constitution

Robert Potts
On March 5, 2014 President Obama again amended the Affordable Care Act, enacted into law four years earlier. George Washington University law professor Jonathan Turley (who supports national health care) said, “What the president is doing is effectively amending or negating the federal law to fit his preferred approach.” Professor Turley added, “Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.”

What Democrats will rue is losing the Senate majority if voters are hit with another ObamaCare scare days before the mid-term elections. To avoid that cause for lamentation and tearing of clothes, President Obama amended the law, ex post facto.

Professor Turley’s admonition to current-day Democrats reminded me of what Democrats used to say about protecting the lawmaking powers of Congress. Eighteen years ago, Democrats were loudly singing a different tune:

  • Senator Paul Sarbanes (D-MD): “I do not see how constitutionally a President can sign a bill, make it the law, and then undo the law…”
  • Senator Robert Byrd (D-WV): “I do not believe that the constitutional powers of Congress can be so cavalierly shifted to the executive branch.”
  • Senator Robert Byrd (D-WV) “Here [meaning Congress] is where the power is vested to pass a law, to enact a law, to amend a law.”
  • Senator Carl Levin (D-MI) quoting James Madison, “There can be no liberty where the legislative and executive powers are united in the same person.”
  • Senator Bennett Johnston (D-LA): “The shift in power which this would bring out would be absolutely mind-boggling to me.”
  • Senator Patrick Moynihan (D-NY) “…granting the President power to reconfigure bills passed by Congress is a legislative function which may not be delegated to the Executive.”

These quotes come from the March 27, 1996 Senate floor debate on passage of S.4, the Line Item Veto Act, which gave the President the power to amend parts of laws passed by Congress. It turned out that the Supreme Court agreed with these senators. In declaring the Line Item Veto Act unconstitutional, the Court held that, “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” (Clinton v. City of New York, decided June 25, 1998)

What a change from then to now. Current Democratic senators, all up for re-election, are happy to have their names listed among those asking President Obama to change the law they passed. The Department of Health and Human Services announced that Senators Warner, Landrieu, Shaheen, Udall, and Begich all worked “in close consultation” on the President’s latest amendment. Don’t ask this crowd to defend the Constitution. They are busy surrendering a big chunk of it to the president.

On March 5, 2014 President Obama again amended the Affordable Care Act, enacted into law four years earlier. George Washington University law professor Jonathan Turley (who supports national health care) said, “What the president is doing is effectively amending or negating the federal law to fit his preferred approach.” Professor Turley added, “Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.”

What Democrats will rue is losing the Senate majority if voters are hit with another ObamaCare scare days before the mid-term elections. To avoid that cause for lamentation and tearing of clothes, President Obama amended the law, ex post facto.

Professor Turley’s admonition to current-day Democrats reminded me of what Democrats used to say about protecting the lawmaking powers of Congress. Eighteen years ago, Democrats were loudly singing a different tune:

  • Senator Paul Sarbanes (D-MD): “I do not see how constitutionally a President can sign a bill, make it the law, and then undo the law…”
  • Senator Robert Byrd (D-WV): “I do not believe that the constitutional powers of Congress can be so cavalierly shifted to the executive branch.”
  • Senator Robert Byrd (D-WV) “Here [meaning Congress] is where the power is vested to pass a law, to enact a law, to amend a law.”
  • Senator Carl Levin (D-MI) quoting James Madison, “There can be no liberty where the legislative and executive powers are united in the same person.”
  • Senator Bennett Johnston (D-LA): “The shift in power which this would bring out would be absolutely mind-boggling to me.”
  • Senator Patrick Moynihan (D-NY) “…granting the President power to reconfigure bills passed by Congress is a legislative function which may not be delegated to the Executive.”

These quotes come from the March 27, 1996 Senate floor debate on passage of S.4, the Line Item Veto Act, which gave the President the power to amend parts of laws passed by Congress. It turned out that the Supreme Court agreed with these senators. In declaring the Line Item Veto Act unconstitutional, the Court held that, “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” (Clinton v. City of New York, decided June 25, 1998)

What a change from then to now. Current Democratic senators, all up for re-election, are happy to have their names listed among those asking President Obama to change the law they passed. The Department of Health and Human Services announced that Senators Warner, Landrieu, Shaheen, Udall, and Begich all worked “in close consultation” on the President’s latest amendment. Don’t ask this crowd to defend the Constitution. They are busy surrendering a big chunk of it to the president.