[NOTE: This post won't be offering arguments concerning the question of whether entitlements can ever be undone. I am saving that discussion for another piece. But my short answer is that I think they can, under certain circumstances, and that HCR most likely fits those circumstances. So for the purposes of this post, let's just stipulate that repeal of an entitlement is theoretically possible, and concentrate on the practical issues.]
The HCR bill is very unpopular right now. People are angry. Most benefits do not kick in for years but payment does, and the bill and its fearsome prospects are likely to hurt the economy and stall any recovery that might otherwise occur. Thus, if the bill remains very unpopular or even increases in unpopularity, and especially if this administration and Congress do other things that further anger the majority of Americas, the election of 2010 could represent a chance for the resurgence of the Republican Party, newly energized by actual conservatism and backed by the will of the people.
There are many wild cards here, however. There’s been much talk, for instance, about the prospect of the Democrats passing amnesty prior to the 2010 election, and therefore gaining all those new voters. I have been thinking for quite some time that they would make that attempt, and I have little doubt that they will try.
It used to be said that amnesty was too unpopular for even the Democrats to touch. But we have learned that the unpopularity of a bill no longer represents any bar to them. They have become unmoored from any need to answer to the people until 2010, and they believe they will game the system to insure their victory in 2010 and beyond.
However, amnesty could be opposed even in this Congress if (and again, that’s a big “if” with Lindsey Graham in the Senate) they can get forty-one votes in the Senate against it. At this point, there is at least a chance that all of the Republicans (and perhaps even Joe Lieberman?) might hang tough on that because they now they finally see the seriousness of the situation and the threat to them and all they stand for.
You might say well, what about reconciliation or the nuclear option for the Democrats to use in passing amnesty even if forty-one Republicans are against it? The nuclear option (changing the rules so that sixty votes are not needed for cloture) is only possible at the start of a Congressional session (look for it to happen, by the way, if the Republicans don’t gain control of the next Senate—and perhaps even if they do). So it could not be used until the Congress that begins after the 2010 election. As far as reconciliation goes—every bill can’t be passed through that route. It was available for HCR only because the Senate had already approved a version of the bill prior to Scott Brown’s victory—the House had to pass that version before reconciliation was allowed.
Naturally, since the Democrats are now officially a rogue party, they might start throwing away even those basic rules that remain in Congress. Then all bets are off—including the response of the military and the American people. But I don’t think that will happen; I think the Democrats will continue to maintain most of the basic forms of parliamentary government, and just tweak and twist them when they need to here and there.
I’ve read a bit about amnesty as currently proposed (don’t have the link right now; I may add one later if I find it), and my impression is that, even if a bill were to be passed by this Congress, the process of actually giving the illegals amnesty and getting them citizenship will take far longer to implement than could be accomplished before the 2010 election. So I am not at all sure it would affect that election, although it could most definitely affect subsequent ones. That makes 2010 a watershed year for the Republicans; they must win that election battle.
I’m not going into a discussion here of how the amnesty bill under consideration will be proposing to operate. If I did, this post would become a larger tome than it already is shaping up to be. But at some future date I plan to take that topic up, too. But I will say that if amnesty remains as unpopular as it appears to be—even more unpopular than the HCR bill—some Democrats who were willing to fall on their swords for HCR because they figured the people would grow to love it may not be quite so willing to do the same for amnesty.
Even if the Democrats pass amnesty, however, it is my prediction that it would cause an electoral backlash so huge that it would make the HCR angst look positively benign. That means that the Democrats would gain many eventual voters through passing amnesty, but they stand to lose even more.
But let’s get back to HCR and the possibilities of thwarting it through the actions of the next Congress. Assuming amnesty (passed or unpassed) isn’t a factor yet in the election of 2010, there is every possibility of Republicans gaining control of the House next session. It would be more difficult to gain control of the Senate, because there are only 18 Democratic seats up for grabs there. So in order to get a simple majority in the Senate, the Republicans would have to have a net gain of 10 seats (one less if Joe Lieberman were to join them). They cannot mathematically gain enough to get a filibuster-proof majority, but a simple majority is theoretically possible (if not easy).
Of course, even if the Republicans took control of both houses in 2010 Obama could veto any legislation they might pass. But he cannot write budget bills. So the way to begin to attack HCR would be through the budget, although this is a very complex process as well (and as I’ve said many times, I am no parliamentary expert, so I may be making some errors here—but this is a discussion of the way budget appropriations bills work, if anyone cares to wade through it).
It appears that the 2010 Congress could defund current legislation through budget appropriations bills without repealing it (it could be repealed in 2012 if the Congress and the presidency change hands and there are more than 60 Republicans in the Senate). Defunding could actually be done without a 60-vote filibuster-proof majority in the Senate (that is what reconciliation was actually originally about—budget bills), just a simple majority in both houses. The president might veto it, but he cannot put in provisions for funding that aren’t there, and if he keeps vetoing the budget bill he would threaten to shut down his own government. Would he want to play that game of chicken? And would the Republicans be up to it?
Even if the Republicans were only to gain control of the House and not the Senate in 2010 (the more realistic possibility, I think), the two houses still must merge their budget bills into one because of the bicameral system. So there may still be possibilities even in that case for a Republican House to moderate a Democrat Senate.
As I said, I’m no expert, but that’s my understanding of things, at least from the quick cram course I’ve given myself online. I don’t know how the defunding would actually work in its details (or whether it would work), and after a quick search I haven’t found anything very specific on it, although I’ve seen it mentioned here and there during the last few months that HCR has been kicking around.
Of course, there are also the challenges to HCR pending in the court system. But I happen to think those will not go in our favor. There are also enough states incensed at this bill and threatened by its demands to their own already-strapped budgets that there is even a possibility of a Constitutional amendment to undo it if enough states feel this way—that’s a whole other topic for another time. I think it’s a longshot, but I mention it because it is a theoretical possibility—and depending on how much more this president and this Congress defy the will of the people and the will of the states, it might become a stronger possibility in the future. And of course, if the country edges even closer to bankruptcy—-all bets are off. Chaos theory and Cloward-Piven, anyone?
As with most civilizations, our biggest threats have come from within, and most be fought. Make no mistake about it, the Democrat leaders are most serious about their power grabs, and their respect for the rules of American political life has almost dissipated. They have been handed the gavel of power, and they are unafraid to wield it heavily—and, they hope, permanently.
[ADDENDUM: Here's a post about defunding from Volokh, a law blog. Seems to be more or less in agreement with what I've written here, but is mercifully less wordy.]