Irregular Constitutional Order

Irregular Constitutional OrderI’ve seldom agreed with Hugh Hewitt so strongly—and readers know I agree with him a lot—as I do on repealing the medical device tax through regular constitutional order and not the usual rendering of pig lips and cow parts.  Hewitt has a post today on the issue at his blogHere’s a key exchange from Hewitt’s interview yesterday with Rep. Kevin Brady, chairman of the Ways and Means health subcommittee, who agrees with Ways and Means chairman Dave Camp on refusing to pass a clean repeal bill through regular order:

HH: He’s [Camp] got more than enough votes to pass a clean repeal bill of the medical device tax. When’s it coming?

KB: Well, hopefully soon. There’s two, you talked with Erik, who’s doing an amazing job. And there’s strong bipartisan support. And the Senate vote was hugely, hugely helpful. You know, now we just need to get it to the President’s desk. And the way you do that, one of two ways. You do it through fundamental tax reform, which we hope is sooner rather than later, or the simpler, faster way would be to have the head of the Senate Democrats, Harry Reid, simply agree with Chairman Dave Camp that this needs to move, and can do so without the shenanigans, because my fear is we know if we send a tax bill to the Senate, what they’ll do with it, that that then kills the medical device tax, which is what we want to repeal. So what we really want to do is an agreement, a legislative agreement, to move the bill separately. That’s how I think we do it sooner.

HH: Now Mr. Chairman, with all due respect, all I can do is speak for me and the people listening to this show. Regular order is what we were expecting at the beginning of this session, which to me means that you guys pass good bills, and you send them to the Senate, and then you let the Senate do with them what they ought to do, and if they pass something different, you go to conference and you come to it. I do not like us waiting. In fact, I’ve got, I’m getting very exercised over the fact that we’re waiting to do a secret deal with Harry Reid.

KB: No, Hugh, it’s not a secret deal. It’s simply a recognition that we are not going to send over a tax bill that gets hijacked for a lot of politics, and at the end of the day doesn’t repeal the device tax, which is what our goal is. And so all this is, is a recognition that this issue, because of its impact on jobs and innovation, it’s important enough not to be played political games with.

. . . .

HH: I know you do, but, and God bless you if you can get it out of committee and get it over to the Senate. But if you can’t stop medical device tax from being hijacked, you can’t stop comprehensive tax reform from being hijacked. Mitch McConnell has said send me a clean bill. If you don’t, that means you don’t trust the Republicans to be able to run their own side in the Senate. And it’s a secret deal. Mr. Chairman, there’s no other way. What you’re outlining is a secret negotiation as opposed to regular order.

. . . .

KB: Well, and I will tell you what, I don’t see it, I just don’t see it that way. I wish things up here worked like they did in the textbook, but they don’t. And to me, it seems like having leaders in a bipartisan way, with bipartisan support saying this is so important, this is so important, and there is such agreement, that we will move it promptly and cleanly? It seems to me that’s how you solve this problem and help save those jobs, because again, too often good intentions and good ideas get hijacked for the opposite, so…

Look, if things aren’t working right, stop right there.  You’ve put your finger on the problem, now fix it.  If you truly believe that necessary and proper laws cannot be passed in the manner the constitution prescribes, then repealing medical devices taxes is just rearranging deck chairs.  Hewitt hits back hard with this: 

HH: But what makes me uncomfortable is I’m just done. I’m done with the NRCC. I’m done raising a dime for any of you folks, and I’m finally going to throw in with the Campaign For Primary Accountability and hope that they run people against you, because honestly, I did not work this hard for 13 years to send Republicans to do secret deals with lame duck Ways And Means chairmen with Max Baucus. I worked hard to send Republicans to Congress to pass tax repeal, send it over, and let us put pressure on the Senate, because it is everything I hate about the Beltway.

This is my feeling as well.  I care about good policy, but I care more—and I think conservatives in general care more—about the rule of law and enacting policy through regular constitutional order. 

I don’t know if it is fair to accuse, so let me ask the question instead:  Is this sort of thing—the deviation from regular constitutional order to achieve a particular policy—more or less likely to occur among establishment Republicans than among Tea Party Republicans?  My feeling is that, because the Tea Party is partly a populist movement by definition, and because they spend such great effort paying homage to the Constitution, they are more likely to adhere to its prescribed procedures even when they make it less likely to promulgate policies they like. 

Am I wrong?  Can someone make the case for David Camp and Kevin Brady? 

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