Where I live in Ohio, I am at the western edge of the 2nd Congressional District, which has a large majority of Republicans. Our representative, Brad Wenstrup, is a Tea Party supporter who defeated Jean Schmidt in the primary two years ago and had only token opposition in the general election. Congressman Wenstrup published a guest column in the January 29 edition of several of the Community Press newspapers, and as generally fed up as I am with the Tea Party, his message pushed me to submit a reply to the paper’s editor. Since this is the platform that I have guaranteed access to, I am publishing my message here. I did send the message directly to the congressman at his official website.
Representative Brad Wenstrup’s guest column in the January 29 issue of the Milford-Miami Advertiser is so full of blatant falsehoods and misunderstandings of Constitutional law that I cannot let it go unanswered. It is a polemic that adheres to the standard Tea Party lines about following the Constitution while ignoring, as Tea Party members typically do, the most aspirational statement in that document’s Preamble, “to promote the general Welfare.”
To address his opening statement, the precise reason the case involving recess appointments to the NLRB is before our highest court is because this is not a settled point of law. In fact, presidents have been making such recess appointments since the founding of the republic. It is only in the last few years that the Senate has begun meeting in so-called pro-forma sessions, where there is nothing approaching a quorum of members present, that the facts have arisen allowing the plaintiff to bring the case that has now found its way to the Supreme Court. In fact, the historical precedent is so long that a key issue to be decided by the court is that if it rules the appointments invalid, will it apply that decision only to these appointments and prospective ones, or will it apply the decision retroactively, potentially invalidating nearly two centuries worth of recess appointments?
The remainder of the representative’s diatribe is either disingenuous or reflects his ignorance about the functioning of the executive branch. Congress typically adopts broad policies in its laws and leaves many of the implementation details to the President, through the adoption of regulations. Properly adopted regulations have the force of law, and are carrying out the intent of the Congress. The process for adopting regulation was set out by the Congress when it adopted the Administrative Procedure Act nearly seventy years ago. That act sets out the requirement for adopting regulations, which include giving proper notice to the public and allowing for submission of comments. Congress has amended the act since then to improve the rule-making process.
When the president, or more properly, the Secretary of HHS makes the changes to the Affordable Care Act as claimed by Mr. Wenstrup, in fact no one is changing the laws passed by Congress. Rather they are exercising the administrative authority explicitly granted to the executive by Congress. For example, regarding the dates for the guaranteed enrollment period under, section 2702 provides, “The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).” That gives the Secretary broad discretion in setting up the periods, including their dates. With regard to creating the exchanges, Congress has again give the Secretary power to regulate, this time in section 1311(c), “(1) IN GENERAL.—The Secretary shall, by regulation, establish criteria for the certification of health plans as qualified health plans. Such criteria shall require that, to be certified, a plan shall, at a minimum—…”
Rather than trampling upon and upending the Constitution, the President and Secretary are duly executing the laws as passed by the Congress. It is true that Mr. Wenstrup and the rest of the Tea Party members in the House of Representative were elected after the ACA was adopted, and have spent the bulk of their time since then voting to repeal the Act, when they are not otherwise engaged trying to default on the debt, shut down the government, and criticize the poor and unemployed for not lifting themselves up by their bootstraps. Fortunately for those of us who truly believe that important clause from the Preamble is so important, their efforts have failed thus far.
Kenneth J. Hirsh