Published in the Journal Record
Wednesday, April 8, 2015
Sometimes politicians can be too clever.
Franklin Roosevelt, first elected in 1932 at the height of the Great Depression, had overwhelming Democratic majorities in both houses of Congress. Because of his extraordinary popularity Congress bowed to his every wish. His domestic programs, including Social Security, were passed swiftly and easily.
There was one roadblock, however. The Supreme Court angered Roosevelt by declaring as unconstitutional several of his pet programs. Roosevelt’s response was immediate. He asked Congress to pass legislation to expand the Supreme Court giving him enough new appointments to overcome any conservative resistance. Legislators who had been previously docile reacted with alarm. They realized that if Roosevelt could pack the court Congress would lose any independence. The previously supine Congress forced Roosevelt to back off his plan. Once the Congress finally stood up to the president, there was no going back.
In the last eight years of his presidency Roosevelt failed to get even one domestic bill passed. This dominance of the legislative branch over the executive branch lasted until Lyndon Johnson, using the impetus of the Kennedy assassination, pushed through a reluctant Congress the Civil Rights Act, Medicare, and Medicaid.
This presidential strength has given our current president the leverage to continue executive pre-eminence, but his dominance may be cut short because of missteps in the Affordable Care Act. First, the administration failed to catch wording in the bill that taxed subsidies for low income applicants for health insurance could only be granted in state sponsored exchanges potentially invalidating millions of subsidies given through federal exchanges. This is a terrible mistake that the Supreme Court will have to unravel later this year.
Second, for decades full time employment in this country was pegged at forty hours per week. In an effort to be too clever the administration put into the ACA a new definition of full time as thirty hours per week. Their idea was that this would force employers to provide health coverage to formerly part-time employees. The result was the opposite. Faced with the option of providing coverage to more workers, many employers simply eliminated jobs or reduced hours of the current work force to under thirty. These two missteps have given the president’s opposition in Congress a tool to reassert their dominance.
Too clever by half.