What comes around.

Much is being said about the various devious ways the Dems have considered, and will use, to enact the “Health Care System Destruction Act of 2010.” The central assumption of the Dems is that once they herd every Dem legislator known to man around the Potomaccian Thermopylae, the catastrophe will be the law of the land forever.

So far so good.

Assuming a Dem tactical victory between this Sunday and the seating of the new Republican Congress next year, we nonetheless need to be aware of the dimensions of the appropriation power resident in Congress and the opportunities inherent therein.^[1]

Specifically, Congress decides how public money is to be spent and, subject to presidential approval of the relevant appropriation legislation (or an override in the case of a presidential veto), it is free to determine the purpose(s) for which federal expenditures may be made.

This principle is enunciated in and made mandatory by 31 U.S.C. § 1301(a), which provides:

Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.

Congress can open or restrict the flow of public money as it wishes, and restrictions can be made to apply across the board to multiple appropriations^[2] or only to a particular appropriation.^[3]

Thus, a separate statutory provision would be perfectly valid were it to provide:

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to fund any agency, activity, function, salary, contract, or grant mandated by, authorized by, established by, implied by, or incident to the “Health Care System Destruction Act of 2010.”

Obviously, if the Republican majorities are large enough, that Act can just be repealed outright. If not, it will be a question of who would blink first in the standoff between the executive and the legislative branch.

Sam Francis always used to refer to the Republican Party as “The Stupid Party” so much will depend on the ability of Tea Party activists, Republican officials, and an aroused electorate to send some Republican fighters to Congress come November rather than the usual types whose eyes roll back in their heads at the mere mention of the words “comprehensive” or “bipartisan.”

Assuming we can send in the former type, we should all take heart that the passage of this bizarre health care legislation would only be Phase I of the catastrophe. Phase II is paying for it in successive years, and that muchachos is a horse of a different feather.

Notes
^[1] There are other opportunities to defeat or neutralize this absurd legislation, of course.
^[2] E.g.: “No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation . . . .” 18 U.S.C. § 1913 (“Anti-Lobbying Act”).
^[3] E.g.: "None of the funds provided in this act may be used by the Central Intelligence Agency or the Department of Defense to furnish military equipment, military training or advice, or other support for military activities, to any group or individual, not part of a country's armed forces, for the purpose of overthrowing the Government of Nicaragua or provoking a military exchange between Nicaragua and Honduras." Department of Defense Appropriation Act, 1983, Sec. 793 (“Boland Amendment”), 96 Stat. 1865 as enacted in Further Continuing Appropriations Act, 983, Pub.L. No. 97-377, Sec. 101(C), 96 Stat. 1833 (1982).