The nefarious $1.7 trillion Omnibus spending bill was passed by progressives in both parties.
This bill funds bigger government for fiscal year 2023 through September. The bad news is that progressives seized on an initiative to eviscerate the incoming Republican House majority for half of their term. The good news is this bill should not stand because it is unconstitutional. The best news will be when something is done about that.
The House has authority to initiate spending under the Origination Clause of our Constitution which is Article 1, Section 7, Clause 1. This clause gives power to the House of Representatives to originate revenue bills and supply government. Obviously, it is a power revolving in time, coincidental with terms of office. The House, being elected politicians closest to the people because of their short term of office, has authority and responsibility to tailor government spending to best match the will of voters.
The 117th United States Congress has exceeded their authority past their term limit by usurping the authority of the 118th Congress.
Once the 117th Congress has been succeeded in the New Year, they no longer meet, they no longer legislate, they are history. The same is true of their bills becoming laws. Constitutionally, this means appropriations bills can’t extend past their time in office. Otherwise, they are legislating extra officium.
It does not matter how execrable the practices of the Congress have become. What matters is what the Constitution says. Precedents of bad behavior don’t amount to license. Congress has a long history of engaging in or encouraging unconstitutional actions.
For example, although the Constitution in Article 1, Section 8, Clause 1 says only Congress has the power to legislate, Congress and the Courts generally turn a blind eye to both imperial edicts issued as Executive Orders and also to bureaucratic rules which have the power of law. What the Constitution requires is for Congress only to legislate. This means Executive Orders which impact any citizen outside the Executive branch of government must be submitted as a proposal to Congress to pass bills. Similarly, all bureaucratic rules must be submitted to Congress as proposals for passage as bills. Congress doesn’t have the power or authority to delegate legislating to any other body, branch of government, or court.
If what the 117th Congress did was constitutional, then there would be nothing to prevent the 117th Congress from passing an Omnibus spending bill for fiscal year 2024, too. This would effectively strip the 118th Congress of their rightful prerogatives with respect to revenues and appropriations during the full term of the 118th. The result would be an additional effective term of office for the 117th which would be unconstitutional because they aren’t in office.
For that matter, there would be nothing preventing progressives from passing a perpetual appropriations re-authorization bill which increases the budget annually automatically in perpetuity (such as is now done anyway annually with baseline budgeting). Progressives would argue this is lawful, and all that is needed is for libertarians and conservatives to pass a different law. But, this negates the Constitution because it implies statutory law and its procedures are all that matters. It would strip the lawfully sitting 118th House of their delegated power to address spending.
In fact, what progressives want is for libertarians and conservatives to do nothing now in the face of their audacious power play. They will claim that libertarians and conservatives can pass a contrary bill and get that signed into law. Of course, in a practical sense, any replacement bill resulting in smaller government would never become law because of progressive dominance in the Senate and White House. In any case, this doesn’t address the root cause of the problem.
The Omnibus spending bill passed by the 117th Congress for fiscal year 2023 is unconstitutional.
Such a brazen action is something you would expect of progressives endlessly pushing back the boundaries of decency from classical liberalism. It is another case of psychological projection during which progressives accuse Republicans of wanting to destroy democracy while they themselves engage in that very action. Usurping the next Congress’s powers is a powerful way to destroy our constitutional republic. The bonus for progressives is this action deflates the enthusiasm of the opposition by exposing the fecklessness of Republican leadership. There is a commitment by progressives to endless outrages until the abnormal becomes less so.
The first thing the incoming House Republicans should do after being sworn in is declare the Omnibus spending bill unconstitutional. Now we shall see of what substance Freedom Caucus members are made. If this isn’t a hill to die on, then there are no such hills. Republicans should immediately petition for a court injunction barring the Treasury from funding anything related to the 117th Congress’ omnibus spending bill and then get the courts to acknowledge their Constitutional right, as the duly elected 118th Congress, to fund fiscal year 2023.
The second thing Republicans should do is pass a Continuing Resolution funding government at 2022 levels until lawful and single appropriations bills can be passed.
The Republican plan for the next two years solely to investigate, raise voices, question and accuse, point fingers, and stomp feet falls under the category of feckless leadership. If Republican leadership thinks these actions will get play in the Lugenpress, except for being confrontational and divisive, they are delusional. If this is the best result Republicans deliver to their base over the next two years, Republican candidates shouldn’t count on their base going out to vote in the rain or the cold.
Once the 118th Congress has established its legitimate right to establish fiscal year 2023 spending, there should be substantive actions taken to induce much smaller government instead of growing big government bigger. Omnibus spending, combining all appropriations into one massive bill, and baseline budgeting, automatically growing government programs by the amount of inflation the government actually caused, should be eliminated. There should only be single appropriations bills so these can receive full scrutiny by the public with time to provide feedback to elected politicians.
Single appropriations bills enable House Republicans to unilaterally achieve much smaller government because no coordination is required with either the Senate or the White House. Government programs, offices, agencies, departments, and administrations can be defunded completely, so they are eliminated. Candidates for complete defunding include the Department of Education, Planned Parenthood, the United Nations (except perhaps for their original missions of peacekeeping and humanitarian assistance), the World Economic Forum, the World Health Organization, the Corporation for Public Broadcasting, the National Endowment for the Arts, the Center for Disease Control, NATO, the Environmental Protection Agency, and the corrupt FBI. Finally, Republicans should implement a rule that approval by a majority of the majority is required to move legislation forward so that progressives don’t hijack legislative initiatives.
Whitson G. Waldo, III is a capitalist, a venture capitalist, and master and skipper of a 43-foot monohull sloop-rigged sailing vessel.
Image: Pixnio // CC0 public domain